“I’ve got your AFP settlement...” Photo © Jeremy Nicholl
Haitian photographer Daniel Morel has received a welcome Christmas present in his ongoing case against Agence France Presse and others. On December 23 New York District Judge William H Pauley quashed an application by AFP and the other defendants to prevent Morel suing for multiple copyright infringements of his work from last January’s Haitian earthquake.

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.

The judgement is a massive blow to lead defendants AFP and Getty, not only because it allows Morel’s claims to proceed to full trial, but because the reasoning behind the ruling comprehensively demolishes the agencies’ defences against those claims. The AFP/Getty defence has always been that Twitter and/or TwitPic’s terms of use permitted the agencies to redistribute the photographer’s material: since the court has comprehensively rejected that argument as a defence to prevent Morel’s claims to proceed, it’s highly unlikely that the jury trial will accept any attempt to use the same defence against the claims themselves.

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.

And Visa Pour L’Image Director Jean Francois Leroy got into an unseemly wrangle at the DuckRabbit Blog after attempting to defend AFP in the British Journal of Photography:

“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 question is prompted not by the newly extended Getty/Flickr deal, but by the latest comments from Visa Pour L’Images’ Jean-Francois Leroy to Olivier Laurent in the British Journal of Photography.

Leroy was expanding on his previous defence of Agence France Presse in their court case versus photographer Daniel Morel, who is suing the agency for distributing his work without permission. Previously Leroy had criticised Morel for initially placing his Haiti images on TwitPic, but in his new comments he goes further, suggesting photographers completely avoid all such social media sites:

“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. You can’t ask me to defend you. What I’d like is for all photographers reading this is that they stop putting images on such sites.”

At first there appears some logic to Leroy’s position, but that rapidly disappears on even a cursory inspection. If social media sites were really places where any visitor was welcome to plunder whatever they found photographers would indeed be best advised to stay clear. But that simply is not the case. Most social media sites – including those mentioned by Leroy – have terms designed to prevent the third party use of contributors’ material. One could argue that the terms are not well enforced, but that’s very different from claiming the terms don’t exist, or that they mean the opposite of what they clearly state.

Leroy’s rationale – that a certain group of people should avoid particular places because something bad might happen to them if they venture there – turns the world upside down and shifts blame for the crime from the perpetrator to the victim. In 2010 in the real world outside the web few would dare come out with such nonsense. Don’t agree? Then try this on for size:

“Any girl who goes to these clubs, and then gets assaulted, well too bad for her… a girl should never go to a nightclub. If you go to one and get raped, well… tough. You can’t ask me to defend you. What I’d like is for all women reading this is that they stop going to such places.”

Leroy’s position is not just perverse and offensive: it’s also baffling because it runs directly counter to the stated philosophy of the festival of which he is a director. For years Visa has taken pride in exhibiting images that haven’t been published in the mass media; a perennial criticism has been that the festival shows too many images, to which Leroy replies he has a duty to show stories that would otherwise remain unseen. But if he genuinely wants stories to gain the widest possible audience Leroy should support photographers’ use of social media. Sure, a Flickr stream may not have the cachet of an evening show or exhibition at Perpignan, but if it’s pure eyeballs a photographer is after, the web and social media will trump Visa every time.

The reality of this squabble – which Leroy doesn’t admit, but may well suspect – is that social media sites are a far bigger threat to image distributors than they are to image creators. For if freelance news photographers use social media to distribute material to publishers they no longer have any need for organisations like AFP. Now there’s a thought.

Visa's social networking strategy is under construction

Photo © Jeremy Nicholl 2006. All Rights Reserved.

The web is all a-twitter over comments made by Visa Pour L’Image’s Jean-Francois Leroy concerning the copyright infringement case between Daniel Morel and Agence France Presse, Getty Images and others. Speaking to Olivier Laurent in the British Journal of Photography, Leroy stated that he “couldn’t defend” Morel and “it’s not easy to say that Agence France Presse messed up.” His comments have not been well received in the photojournalism community.

Leroy’s first comment is easy to dismiss. He’s unlikely to be called as an expert witness to the New York court hearing the case, so for all practical purposes who if anyone he chooses to support is of no consequence. His second claim however – that AFP “didn’t mess up” – is far more dangerous. Leroy attempted to support this by saying “You don’t put images you think are worth $10,000 on Twitter. If I’m the witness of such a tragic event as this earthquake, I call an agency or Getty or Corbis.”

Really? Leroy’s assertion that the pictures would have been better placed with an agency likely rests on three assumptions. Firstly, that an agent would get better prices for the pictures; secondly, that the pictures would be more secure if hosted at an agency site; and thirdly, that if any pictures were stolen the agency would have better resources than an individual photographer to prosecute infringers.

Photo © Jeremy Nicholl
But one of Leroy’s suggested agents – Getty – did get their hands on the pictures, and according to court documents the licensing fees, although many, were in the hundreds, not thousands, of dollars. Surprisingly low in fact, and certainly not in excess of what could be achieved by a photographer of Morel’s experience selling on his own.

The second assumption, that of security, seems based on ignorance: no image placed on the internet is secure. Not one. Ever. The best an agency site can offer is a password wall for high resolution images, watermarking on the publicly viewable low resolution versions, backed up with a copyright warning to deter would be thieves. But would-be thieves don’t care about the warning and watermarks are trivially easy to remove. And once the pictures leave the agency site, legally or otherwise, all that security is gone. So any agency site security is at best flawed and inevitably temporary.

What about Leroy’s third assumption, that a major agent is better placed than an individual photographer to pursue copyright infringements? Since 2007 Getty have been pursuing businesses in the UK for multiple cases of copyright infringement. Ironically the infringers being chased by Getty complain that the agency is being unreasonable and heavy-handed: terms like “bullying” and “threatening” echo AFP’s complaint of Morel’s “antagonistic assertion of rights.” And inevitably the defence the infringers present against Getty is in many cases exactly that which AFP/Getty present against Morel: “the pictures are on the internet so we thought they were free.”

But the interesting thing is that in three years the best Getty’s legal department has managed is a total of £26,000 from one business in an out of court settlement; and the majority of that was legal fees. Should Morel succeed in his case against AFP and Getty he is likely to be awarded damages far in excess of that. So in this instance, who’s doing better at pursuing infringements?

Leroy would surely agree that a prime function of a news photojournalist is to get the pictures out as quickly as possible. Morel did that, and, incidentally, from an earthquake that was still in progress. So if, as a senior BBC correspondent recently stated, Twitter is just another news outlet, shouldn’t photojournalists working on a breaking story be able to use that outlet without fear of their work being stolen?

Photo © Jeremy Nicholl
Finally, Leroy says that photographers have to accept their responsibilities. Fair enough. But someone in his position also has a responsibility to recognise picture theft for what it is, even when – in fact, especially when – one of the accused happen to be major sponsors of the festival of which he is director. Instead he’s chosen to endorse that tired old excuse employed by every small-time freetard crook who ever stole a picture from a website: “it’s on the internet, so I thought it was free.” Cheers, J-F!

Morel's publications under the AFP-Getty-Suaero byline

Imagine you’re in an earthquake. Even as the aftershocks continue, looters steal your property. Shortly after you see your stolen belongings up for sale. You’d almost certainly take steps to stop your stuff being flogged off. You’d probably tell the buyers they were handling stolen property. You might, to coin a phrase, antagonistically assert your rights.

At 4:54 pm on January 12th this year Daniel Morel did find himself in an earthquake. A Haitian photojournalist of some 25 years experience, he was working in Port-au-Prince when the biggest earthquake to hit the Caribbean for 200 years struck the city. As he began photographing the devastation Morel, a former Associated Press staffer, realised the importance of distributing his pictures as quickly as possible. What happened next, and decisions yet to be made in a Manhattan courtroom, may come to redefine how photographers and big media interact with the freewheeling world of social media.

  • At 5:20pm Morel opened a Twitter account called PhotoMorel, tweeted that he had exclusive earthquake pictures and uploaded 13 images to TwitPic, an associated, but separate, service.
  • At approximately 5:28pm one Lisandro Suaero, located in the neighbouring Dominican Republic and previously unknown as a professional photographer, hijacked the 13 images, uploaded them to his own TwitPic account, and tweeted that he too had exclusive earthquake pictures.
  • At about 9:45pm Agence France Presse copied the images from Suero’s account, and subsequently began offering them for licensing.

When he realised his work was being distributed without permission Morel engaged The Hoffman Law Firm, who began sending cease and desist letters both to AFP, their distributor Getty Images, and the two companies’ clients and subscribers.

On March 26th AFP responded, filing suit in Manhattan federal district court claiming Morel had “made demands that amount to an antagonistic assertion of rights”. AFP asked the court to rule that the agency had not infringed his copyright, accused him of making “false and disparaging statements” and asked that the court award damages and legal fees for those statements.

And on April 21st Morel’s lawyers hit back with a humdinger of a counterclaim for 10 alleged offences including multiple copyright infringement, naming as defendants not just AFP, but Getty, CBS, ABC, Turner Broadcasting and others. The preferred terms of engagement are clear. The suit is peppered with lawyer-speak for “step outside”, with AFP/Getty’s actions described as willful, wanton, false, misleading, fraud, reckless, with malice, in bad faith and with intent to deceive. To show they mean business Morel and his lawyers have registered the images with the US Copyright Office: registered images qualify for damages of up to $150,000 plus legal fees per infringement. Most intriguingly, and unusually for a copyright matter, Morel’s lawyers are demanding trial by jury.

Morel’s 66-page counterclaim – AFP’s original suit is a mere 8 pages – appears heavily researched, and is densely written and rich in detail. It covers Morel’s work history, photo agency standards and work procedures, the potential impact of social media on professional journalism, and much else besides.

It also contains a series of tweets or emails from AFP to Morel that appear to go to the heart of the case. The first, at 02.06am January 13th, is from AFP employee Ben Fathers and reads: “Hi Daniel, great work from such a difficult environment. I work for AFP, please e-mail ben.fathers@afp.com.” It’s clear from the messages – 5 in under 4 hours – that AFP know the true provenance of the pictures they are already syndicating under Suaero’s name and hope to make a deal with Morel.

In fact according to the British Journal of Photography AFP were aware of Morel’s ownership even earlier. The BJP cites 2 tweets from AFP photo editor Vincent Amalvy at 7.12pm and 9.41pm on January 12th asking “do you have pictures?” Minutes after that second tweet, having received no response from Morel, AFP uploaded his pictures from the Suaero account.

All this means that AFP had identified the true owner either just before or shortly after syndicating Morel’s images: at either point the honest – not to say sensible – course of action would have been to pull them from syndication. Yet the agency continued, despite representation from Morel, his lawyers and his agent Corbis, to syndicate the pictures until March 3rd, almost 2 months later.

That’s all pretty damning, so what could AFP’s defence be? Remember this is the company that tried to sue Google for merely linking to their pictures in search results, so they can hardly claim they believe that pictures on the internet are automatically free for anyone to use. Instead AFP have fallen back on Twitter’s Terms of Service [ToS], attempting to claim these permit third party use of any content posted on Twitter:

“When Mr. Morel posted his photographs on Twitter, he made no notation that he was in any way limiting the license granted to Twitter or third parties or that he was in any way limiting the ability of Twitter and third parties to use, distribute, or republish his photographs. Thus, a third party would reasonably assume that based on the Twitter Terms of Service and typical use, by posting his photographs on Twitter, Mr. Morel was granting the requisite license to Twitter and third parties to use, copy, publish, display and distribute those photographs.”

But that’s just plain wrong. Twitter’s ToS very clearly refer to the relationship between Twitter and its users: they have nothing to do with third parties. The only possible get-out for AFP could be that Twitter ToS permit the company to sub-license or make users’ content available “to other companies who partner with Twitter”, but none of that applies in this case.

However AFP have a further, far more serious, problem: they’re looking at the wrong ToS. Contrary to AFP’s suit, Twitter never hosted the Morel pictures; Twitter can’t host images, only text. The Morel pictures were hosted at TwitPic, which is an entirely different legal entity with different ToS. And the TwitPic ToS, unlike Twitter’s, make no provision for use by a third party of hosted content. Further, the TwitPic ToS very specifically state:

Improper Use of Data
Data mining, “scrapping”, and/or unauthorized crawling of Twitpic is prohibited unless explicit permission is given. Using any data from Twitpic (including data from images and/or users) that is not available through authorized channels is also prohibited unless explicit permission is given.

Copyright
By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites

All images uploaded are copyright © their respective owners”

But if AFP and their lawyers appear to understand little of the workings of the internet, the internet was quick to show that sections of it understand little about either professional photography, or how the law works in the real world.

Techdirt offered the bizarre opinion that by helping themselves to Morel’s pictures AFP had done him a favour by boosting his reputation, and that “there are lots of ways he could cash in on that recognition”. This ignores not only that AFP offered the pictures under the wrong name, but also that just because someone advertises their work on the web it doesn’t necessarily follow that anyone can take that work for free. Techdirt’s suggestion is akin to saying that your local Apple Store would be happy for you to toss a brick through their window and walk off with a MacBook. After all they’ve displayed the goods and there’s lots of ways they could cash in on the name recognition.

Techdirt and others also suggested that Morel should be suing not AFP, but Suaero, since it was he who originally stole the pictures. But if you saw your stolen property offered for sale where would you go first? The Manhattan office advertising your goods, or the burglar whose only known contacts are a Dominican cell-phone and a Twitter account?

And a surprising number of blog comments offered what could best be described as the rape apologist defence: by placing his images on a social network Morel was “asking for it”, and as such deserves little sympathy.

The only real agreement is that the whole situation is a mess. If AFP are smart they will settle out of court with Morel on whatever terms he’s generous enough to offer. But it’s likely they’ve missed that opportunity. On March 1st Morel’s lawyers wrote to AFP demanding a record of all sales and revenues from the pictures: at that point AFP could probably have negotiated a settlement based on the proceeds of sales to that date.

Instead AFP dramatically upped the ante by filing suit against Morel, presumably gambling that he would drop the matter. But that wager has now backfired, and with Morel’s lawyers claiming multiple infringements at $150,000 a piece AFP now face the possibility of a final bill far in excess of what the pictures would have cost if licensed legally.

What I’m thinking…

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