The headline is hardly a revelation: it’s been obvious for a long time that AFP’s theft and distribution of Daniel Morel’s award-winning Haiti earthquake photos would cost the agency dear. But the voice is a surprise: it belongs to AFP deputy photo editor Eve Hambach, writing in an internal agency email in March 2010.
The Hambach email is contained in opposing memoranda at law from lawyers representing Morel, AFP, Getty Images and the Washington post seeking summary judgement in the two-year-old copyright infringement dispute.
The basic facts of the dispute have been well documented and the memoranda, running to hundreds of pages, broadly confirm the previously published timeline of events. However investigations by the Morel team have unearthed far greater detail than before, and their documents paint a damning picture of AFP and Getty’s joint activities, described as “essentially a business model gone wild “. Among the most damaging claims:
- AFP director of photography for North and South America Vincent Amalvy emailed Morel two hours before downloading Morel’s images – allegedly from the Lisandro Suero TwitPic account – and entering them into the AFP system. It’s unlikely that Amalvy could have been unaware of the true provenance of the images on the Suero account having previously approached Morel.
- Amalvy also stole a number of other images from websites on the evening of the earthquake, including from the New York Times website.
- Internal Getty Images emails reveal that senior Getty staff, including the Director of Photography, knew of Morel, his association with rival agency Corbis, and his ownership of the earthquake images several hours before Getty began distributing those images.
- AFP ignored their own written rules for using social media content, rules that specifically warned of the “significant risks” of stolen images and copyright abuse.
- Amalvy claims that in fast moving news situations guidelines such as those in AFP’s rulebook don’t apply. This is in stark contrast to other news agencies, including the Associated Press, who also chased the Morel images but declined to use them when they were unable to contact the photographer.
- AFP and Getty had no workflow in place to ensure the removal of AFP images with a Mandatory Kill notice.
- AFP fed the Morel images to Getty multiple times under different names. As a result, when a Mandatory Kill notice was issued for the Morel images only those with a Daniel Morel byline were removed from Getty’s distribution network. Those with the erroneous bylines David Morel and Lisandro Suero remained available.
- Both AFP and Getty misled clients into believing that they represented the Morel images by removing his Copyright Management Information and replacing it with their own.
- Getty also licensed the images for commercial use, despite the fact that AFP’s Morel feed specified “editorial use only”.
The two sides are playing for very high stakes. Morel claims 820 instances of willful copyright infringement and associated offences, each carrying a possible award of up to $150,000: should the defendants lose they could face a bill of $123 million plus hefty legal fees.
The memoranda make clear the parties’ strategies in the case. The Morel documents – all 237 pages – are forensic, containing a detailed timeline of events, emails from AFP, Getty and Corbis, interviews with AFP and Getty staff, and depositions from Getty clients and subscribers.
In contrast, the AFP and Getty documents are somewhat sparse and surprisingly light on specifics. Rather than address specific Morel claims, the defendants largely restrict themselves to brief generic statements: “AFP does not intentionally sell infringing content”, “Getty Images does not promote or market infringing activity or content on its website”, and so on.
At the heart of the AFP defence is a reliance on the Twitter and TwitPic terms of service in force at the time of the infringement. Essentially this argument claims that the terms allowed AFP – or anyone else – to grab anything they fancied and redistribute it outside the Twitter and TwitPic environments. But this argument was rejected by Judge William Pauley in December 2010 when AFP went to court in an attempt to halt the Morel case: its resurrection now suggests that the AFP defence are running out of ideas.
Getty’s defence, meanwhile, attempts to place as much distance as possible between the defending partners. Essentially this amounts to “nothing bad was done, but if it was, it’s all AFP’s fault”. To support this Getty stress the automated nature of both the AFP feed and Getty’s own distribution system. However this argument is undermined by evidence that Getty staff manually altered metadata attached to the Morel images, and that agency staff licensed some of the images in telephone sales.
While the memoranda provide a clear insight into the thinking – or lack of it – at the two agencies as the scandal developed, one fascinating question remains unanswered: just who decided it would be a clever plan to sue Morel for defending his own property? It was this single fateful decision more than any other that escalated what could have been a dispute ending in a quiet out of court settlement into a highly publicised multi-million dollar war zone.
It’s unlikely anyone will ever step forward to claim the credit for that particular piece of ingenious public relations, for it’s clear that AFP and Getty are already bracing themselves for a crushing defeat. Buried deep in their memorandum is a plea to the court that should it find in Morel’s favour, damages should be limited to a maximum of $240,000. That’s a far cry from previous ringing declarations that “in the end, we shall prevail”.
The Case In Quotes:
January 12, 2010 at 9:42 PM, Amalvy emails Morel:
“Hello – I am the AFP Photo Editor- I am searching to contact you – Do you have images of the earthquake – You can send them to me at this address – email@example.com – Thank you.”
From the Morel memorandum:
“At 7:48 PM, Amalvy sent an email to firstname.lastname@example.org with the image attachment ‘haiti 2.’ At 9:03 PM, Amalvy sent an email to email@example.com with an image attachment ‘haiti 3.’ At 9:03 PM, Amalvy sent an email to firstname.lastname@example.org with the image attachment ‘haiti 4.’ As set forth in Morel 56.1, there is no genuine dispute that the above images were taken from the Radio Tele Ginen website. At 9:07 PM, Amalvy sent an email to email@example.com with an image attachment ‘haiti 5.’ The image by Tequila Minsky was sent via e-mail at 7:00 PM to The New York Times in exclusive. The image was never posted to Twitpic or social media site. At 9:38 PM, Amalvy sent an email to firstname.lastname@example.org with an image attachment ‘haiti 7.’ This image is Minsky’s and was stolen by AFP from The New York Times website.”
January 12, 2010 at 11:04:19 PM, Andreas Gebhard, Getty Images Manager, Global Picture Desk, emails Francisco Bernasconi Senior Director of Photography News and Sports at Getty Images:
“Not sure if it’s worth contacting twitter.com/photomorel. Name is Daniel Morel. Don’t know anything else. Pix on twitter look very decent.”
Three minutes later Bernasconi responds: “Former AP staff shooter..I don’t want to contact directly now. He normally works for Corbis now.”
January 13, 2010 at 4:36 AM, Benjamin Fathers, Chief of Desk for AFP Paris, emails Amalvy:
“Vincent – I’m not certain Lisandro Suero’s photos are his but they belong to Daniel Morel – Look http://twitpic.com/xve5d”.
January 14, 2010 at 9:03 AM, Samantha Dubois, Deputy to the Chief of Desk AFP Paris, emails Amalvy and others:
“Hellooo, Hope you slept well !!! Here is today’s bad news”.
January 14, 2010 at 2:16 PM, Eva Hambach, AFP’s deputy photo editor for North America emails:
“US copyright law requires that the image be pulled and removed.”
From AFP Guidelines For Video And Photo:
“We may on occasion use video and photo used on sites such as Twitter . . .
There are three key questions before publishing:
1. Does the material have a news value that justifies its use given the risks?
2. Have we verified the content, origin and ownership?
3. Have we provided the proper context to our clients?
Verify five basic elements:
3. Source: Is the source’s identity and authorship confirmed?
5.Copyright: Is the image protected and if so what are the specific legal terms?”
Vincent Amalvy testimony:
“When have you have to decide to dive, I took my responsibility . . . As a result . . . was success for AFP during the three next days following the catastrophe. Guideline doesn’t care about this kind of situation. When there is no picture, no any anything, except a few of them, that’s different circumstances.”
March 9, 2010 at 2:20:51 PM, Chris Eisenberg, Getty Images Director of Content Management emails:
“What is our workflow for removing images from our site when AFP send us a
Mandatory Kill notice? Are AFP responsible for doing so themselves? We currently have 32 AFP images with ‘Mandatory Kill’ in the caption on the website, and when I spot checked, the original image for at least one of those is still on our website.”
Just over an hour later Andreas Gebhard responds: “At the moment, we have no definitive workflow on this.”
March 16, 2010 at 8:23 AM, Hambach emails Amalvy:
“You realize that it is impossible to clean up the worldwide web of all Daniel Morel AFP entries. There are images on websites, on blogs…they are used in video clips on YouTube. They are everywhere. Anyway, AFP got caught with a hand in the cookie jar and will have to pay. Now that we have a better understanding of the use of these images, shouldn’t it be up to the lawyers to negotiate. It is not my futile tries or attempts to clean that will change much to what will have to be paid.”
At 9:20 AM, Amalvy responds: “I agree except on the fact that we have what we – because we are in contact with robbery and we can’t – we have to show that this guy put the picture in high definition on the web and that’s the reason…”
March 26, 2010 at 4:56 PM, Catherine Calhoun, Senior Director Media Sales at Getty Images, emails Marc Kurschner Getty Images’ VP of Sales for North America:
“I just sent you a bit more details, along with the list of clients that downloaded these images. It’s a long list.”
At 5:55 PM Kurschner responds: “Oh boy, that’s not good.”
Exchange between Morel counsel Barbara Hoffman and CNN witness:
Hoffman: “Did you believe that Mr. Morel had sold those images to Getty Images?”
CNN witness: “At the time from the e-mails that is what we believed yes.”
Hoffman: “What led you to believe that?”
CNN witness: “Because they were available on the Getty Images website that subscribers have access to.”
Exchange between Judge William Pauley and AFP counsel Joshua Kaufman:
Kaufman: “Your Honor, this is not a unique interpretation of AFP for the purposes of this motion. People are re-twitting and re-Twitpic’ing pictures by the hundreds of thousands a day.”
Pauley: “Is that somebody else on Twitter like Suero?”
Kaufman: “Suero, yeah.”
Pauley: “Right? Suero, a thief, right?”
Kaufman: “Suero took -”
Pauley: “That’s your argument?”
Kaufman: “No, other people are allowed to -”
Pauley: “So the multitude is doing it; therefore, it is okay.”
Kaufman: “No, no.”
From the Getty defence:
“Getty Images requires and relies on the representations AFP makes about its content in the License Agreement. It could not possibly investigate whether the hundreds of thousands of images that AFP transmits to Getty Images’ database every year infringe other parties’ copyrights, without altering its business model, incurring massive expense.”
Last week showbiz news agency WENN announced a deal with Plixi to charge publishers who use images uploaded via the social media firm. The reason for the arrangement is simple. Plixi provides a vital public service by allowing the likes of Courtney Love to share her ladyparts with the world; and WENN is well positioned to make publishers pay the going rate for images of 47 year old divorcees in the bathroom, rather than swipe them for free as they have been doing. Proceeds from the sales of this important documentary imagery will apparently be split between WENN and Plixi: the photographers and copyright owners will – you guessed – get nothing.
Announcing the deal, WENN Chief Executive Lloyd Beiny presented himself as an old-fashioned lawman, claiming the arrangement will end the “digital Wild West” that has allowed publishers to “liberally help themselves to photos posted on Plixi and reproduce them with scant concern for the ownership of copyright”. Flanked by a posse of deputies riding shotgun Marshall Beiny continued:
“Everyone has turned a blind eye to the use of these pictures up until now, but sooner or later the people who own them are going to say you can’t just steal our pictures and republish them without paying for them.”
Beiny’s major think-fail is obvious, but just to spell it out: neither WENN nor Plixi are “the people who own” the pictures. Before the deal Courtney et al could simply drop their kaks, upload the images and await the free publicity. Nothing has changed in that process except that now WENN & Plixi will step in to demand a fee from anyone providing that publicity.
So, far from being the lawman riding into town to impose order, Beiny’s announcement is closer to other fine old Western traditions such as cattle rustling and land-grabs.
“Plixi does not claim ownership of content you submit or make available for inclusion on the service. However, with respect to content you submit or make available for inclusion on publicly accessible areas of the service, you grant Plixi the following worldwide, royalty-free and non-exclusive license(s), as applicable:
“With respect to content you submit or make available for inclusion on publicly accessible areas of Plixi, the license (with the right to sublicense) to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such content, whether on the service, or through other media.
“This license exists only for as long as you elect to continue to include such content on the service and will terminate at the time you remove or Plixi removes such content from the service; provided, however, that if Plixi distributes or authorizes distribution of any content prior to your removal thereof from the service, Plixi’s (and it’s sublicenses’) rights with respect to such content shall be in perpetuity.”
The funniest thing about this scheme is that of course it won’t work. Plixi is hardly unique: it is only one of a number of applications that allow users to link their images to their tweets. Users with images of any value to upload will simply go elsewhere.
The other problem is that WENN and Plixi are seeking to enforce the new terms retrospectively on material already uploaded. Retrospective terms are always a happy hunting ground for lawyers, and both celebs and publishers have plenty of those on tap. No publisher is going to pay for an already published image uploaded under Plixi’s former terms; and any celeb now regretting any previous careless uploads will doubtless be made even more unhappy at seeing WENN and Plixi cash in on their photographic faux pas. So one way or another expect to see this new deal challenged in court before long.
Still, there are worse fates than ending up in court wrangling over ownership of some Z-lister’s private parts. After all, in the good old days cattle rustling was a capital offence.
Unless the parties reach a settlement out of court Morel’s claims will go to a full jury trial in the New Year. AFP, Getty Images, CBS Broadcasting and Turner Broadcasting will face claims for copyright infringement and Digital Millennium Copyright Act violations; AFP and Getty will face further claims for contributory infringement and vicarious infringement. With widespread misuse of 13 images alleged damages and legal costs could run into many millions of dollars.
Essentially the defendants’ best option now is the same as it always was: quietly admit guilt and settle out of court on the best terms offered. Their problem is that they already tried that before the recent ruling and were rebuffed, so there’s no obvious reason why Morel should offer them a deal in their now severely weakened state. On the contrary Morel’s incentive is to go for the jugular, a favourable outcome in court when the claims are heard and maximum damages.
Indeed hitting AFP and Getty as hard as possible appears to have been the strategy of Morel’s lawyers from the start: not only are they pursuing the defendants under copyright law, but they also attempted to do so under trademark legislation, primarily for false advertising. Judge Pauley rejected all the trademark applications, which might lead a careless reader to think the defendants are somehow off the hook, but that is not the case. On the contrary it’s notable that at every point in his ruling where Pauley turned down Morel’s applications under trademark law the judge reminded him that the court was doing so because the protection and compensation he seeks are available through his applications under copyright law. The core of Pauley’s ruling is thus: “I’m not letting you go after them under trademark legislation because the law doesn’t allow it; but don’t worry, you can nail the bastards under copyright law.”
Pauley also rejected AFP’s sole remaining – and most ludicrous – defence, the so-called Content Management Information argument. In this AFP attorney Joshua Kaufman tied himself in knots trying to make a claim that Pauley derided as “implausible”: that because the words “by photomorel” merely appeared alongside the photographs, rather than being embedded in the images, a viewer – such as AFP – was unable to identify the author.
The ruling not only leaves AFP’s legal strategy in disarray, it is deeply embarrassing for a number of observers and would-be experts who have spoken out in support of the agency. On the eve of the case US National Press Photographers’ Association lawyer Mickey H. Osterreicher announced:
“Unfortunately for Mr. Morel, in an attempt to transmit his spot news photographs of the Haiti earthquake to the outside world he apparently overlooked the the applicable terms and conditions of posting images on Twitter.”
That’s exactly the opposite of the court ruling: let’s hope Mr. Osterreicher never has to present a case to Judge Pauley.
“Anyone who puts images on Flickr or on Twitter, and then sees them being used, well too bad for him… a photographer should never put his images on a social networking site. If you put your image on Twitter or Flickr and find that it’s been stolen by someone else, well… tough.”
Wrong again. Pauley’s ruling states very clearly what was obvious from the start: that photographers are entitled to exactly the same protection at social networking sites as they are, for example, at the Visa Pour L’Image site.
Worst of all however was Washington photographer and business advisor John Harrington, who published a lengthy defence of AFP and attack on Morel last October. In light of the ruling it’s worth revisiting some of Harrington’s insights:
“The photographer is in the wrong”
“Their [Twitter’s] conveyance of those rights to third parties – in this case AFP, is perfectly within the bounds of their rights, and Morel is out of line.”
“The fact is, Twitter’s T&C give AFP permission, granted to them by Morel, when he accepted them as a condition of his use of Twitter.”
“AFP did NOT steal them, they have a license (permission) to use them.”
“AFP has obtained their rights from Twitter who legitimately got them from Twitpic who legitimately got them from Morel. AFP did the right thing.”
How about that for sound business advice?
One way or another all of these people claim to have the best interests of photographers at heart, yet they have all made interventions that are not only contrary to those interests, but that have been exposed by the court ruling as factually and legally incorrect. It will be interesting to hear what, if anything, are their reactions to the judgment.
Is that the sound of silence we hear?
The Shop Till You Drop Award [sponsored by Adobe]
The Naked Gun Award For Photography And The Law
The Pariah Educational Workshop Award
Quote Of The Year
‘We know change is never easy and comes with challenges’
‘I really hope someone will burn in hell because of this.’
‘This is not “like robbery”. This is robbery.’
‘What kind of crackhead business model are we riding on here? We are getting raped.’
‘Rotten news all couched in happy, shiny language. Like getting a beautifully-wrapped turd for Christmas.’
‘Hey, where’s my kiss? I didn’t get a kiss. Did anyone get a kiss? I usually get kissed before I get f…..’
‘We knew when we made yesterday’s announcements that there would be a lot of feedback.’
‘I think you would have been better off saying nothing.’
‘What drugs do you use?’
‘HOW MUCH FRIGGIN PROFIT DO YOU NEED MAN? If you can’t operate on a model such as this you’re just a failure and a failed company. We all know that this company is a fucking cash hog. Getty would not have bought you if you weren’t.’
‘You can’t survive on 60-80% of the profits from a product that you have 0% ownership in? Sad. Pathetic.’
‘So I guess all those glowing announcements about how great iStock was doing and how much profit it was making year after year was all lies.’
‘Money isn’t going to be what makes you all happy.’
‘So THAT is your response to this mess?? Wow, thank fuck you’re not my boss!’
‘Oh, for fucks sake … leave out the pathetic, for-the-camera, misty-eyed rhetoric will you? It isn’t going to wash this time.’
‘Don’t pee on my leg and tell me it’s raining.’
‘Pardon me while I vomit.’
‘Cry me a fucking river Kelly. You’re all a bunch of spineless fuckwits and you’ll get what you deserve.’
The Heath Robinson Award For New Technology
The Stock Shockers Award For Image Misuse
Photo Credit Of The Year
Grand Prix de Folie Photographie
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?