This week’s release of the oral arguments in Daniel Morel vs Agence France Presse, Getty Images and others has provided a first insight into the thinking of the respective legal teams.
Morel’s case, presented by Barbara Hoffman, is of course pretty straightforward: you stole my property, now you have to pony up. The main opposition party, Agence France Presse, is represented by Joshua Kaufman, and their argument is inevitably more complex. Inevitably, most observers would say, because AFP haven’t a leg to stand on; therefore Kaufman has to transform what appears to be a straightforward case of theft into something more complex in an attempt to find a loophole for AFP to wriggle through.
Essentially Kaufman has opted for a smoke and mirrors operation, lifting a phrase from one Terms of Service here, a snippet from another ToS there, then attempting to cobble the various components into a coherent whole: it’s the law as practiced by Heath Robinson. Whether this strategy will work remains to be seen, but judging by some of Judge William H Pauley’s comments, His Honour was distinctly unimpressed by Kaufman’s tortuous logic.
There’s excellent background and analysis both at the British Journal of Photography and especially at Duckrabbit, who have highlighted the absurd logical conclusion of Kaufman’s argument: that unless metadata is embedded to state otherwise, AFP are entitled to help themselves to any image they find on the net.
But along with the common sense analysis came the Loony Toons brigade: self-appointed experts using their own imaginary authority to shore up the AFP case. At A Photo Editor one commentator, Leslie Burns, posted some nonsense attempting to justify AFP’s actions. When this was easily shot down by others Burns claimed superior knowledge on the basis that s/he is a law student. Nor an actual, real, grown-up, qualified, practicing lawyer, you understand, but a student.
However this week’s first prize for idiocy relating to the Morel case – the Visa D’Or Faux Pas if you like – unquestionably goes to John Harrington at his Photo Business News & Forum. In “Morel v. AFP, AFP v. Morel – Which Way Blows the Wind?” Harrington claimed that AFP were entitled to use Morel’s work, and tried to illustrate why. This was partly the same ground already foolishly trodden by JF Leroy and the NPPA, but Harrington took the attack on Morel a step further: rather than simply make vague comments about the dangers of social media he set out to prove in detail why AFP were entitled to behave as they did.
Harrington’s post earned him a fair amount of derision from readers, both at his own blog and elsewhere; one at Duckrabbit rather cruelly described him as “an obscure small-time PR photographer” with “no understanding of the challenges faced by Morel in the midst of a massive disaster”. However none of the readers noticed the howler at the heart of Harrington’s thesis: an error so fundamental that it both demolishes his argument and renders any other criticism moot.
To conclusively prove his case against Morel Harrington decided to play lawyer and use the Twitpic ToS to conclusively prove that AFP were entitled to help themselves to Morel’s work. Quoting the Twitpic ToS Harrington wrote:
From TwitPic’s TOS:
– By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites
- you retain all of your ownership rights in your Content. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service.
What part of that’s not clear? Photographer “A” delivers images to party ”B” (TwitPic and then Twitter) and in doing so, accepts terms expressly providing that party “B” has the right to sublicense his work to third party/ies “C”, then the photographer must abide by terms to which he/she agreed. As to Party “C” being Lisandro Suaero, who downloaded the images from TwitPic and reposted them on Twitter under his name (see FastCompany article here for this gem of information), nothing in TwitPic’s terms require photo credit, let alone, an accurate photo credit. Setting aside Suaero’s ethical breach for taking credit for someone elses’ work, AFP has obtained their rights from Twitter who legitimately got them from Twitpic who legimiately got them from Morel. AFP did the right thing, as they learned that Morel was in fact the photographer, and not Suaero, so they corrected the photo credit to attribute Morel. Morel is not some newbie, or someone unschooled in how to transmit photographs – he used to be an employee of the Associated Press as a photographer, so any claims of “I didn’t know…” will, for me, fall on deaf ears.
Yes John, here’s a question. Where are the first five words of those Twitpic ToS? You know, the ones in bold so they’re hard to miss. The ones that read “Date Modified: July 14th, 2010”.
Here’s another question: exactly what was the modification that was made on July 14th?
Don’t know? Time’s up: here’s the answer. The modification was the insertion into the Twitpic ToS of the exact clause that you quote and use as the basis for claiming that those ToS entitled AFP to syndicate Morel’s images. That clause does not exist in any earlier version of the Twitpic ToS, and most importantly, not at the time of the AFP theft of Morel’s images. Indeed, as AFP’s Kaufman noted in court, the Twitpic ToS at the time of the AFP/Morel incident make no mention whatsoever of third party use of material hosted on Twitpic: that is one of the elements at the very heart of the case.
Harrington presents himself as an expert on the business aspects of photography; indeed he has published a book on the subject. Such a person must surely be aware that a ToS clause published on July 14th can have no bearing on an incident that occurred some six months earlier, or a on a legal case filed shortly after that incident. In other words, Harrington’s entire argument is a nonsense, in the most literal sense without any foundation.
However Harrington’s article does raise two other embarrassing questions for him, for there are only two possible reasons for his blunder. Either Harrington didn’t bother to check the history of the Twitpic ToS, in which case he was lazy and careless to the point of incompetence; or he did check them, realised the history didn’t support his argument, and therefore ignored it; in which case he deliberately set out to mislead his readers.
So was Harrington fibbing? Or just plain dumb?
Any answers John?