Ok, this one is strange but follow me for a moment because this could be a big case for photographers.

Haitian Photographer Daniel Morel was in Port au Prince when the earthquake struck and captured some of the first images of the destruction that he then transmitted out. An amazing effort was made by Daniel to get the images out under the circumstances and he used Twitter to do it.

APF (Agence France Presse) found the images after another twitter user stole them from Daniel’s account. APF download the images and distributed them with that other users name in the credit. The images appeared on newspapers world-wide.

Daniel went after AFP, Getty and those who used the images for copyright infringement. AFP is apparently suing Daniel for “antagonistic assertion of rights” because of  the way he pursued the copyright infringers using attorney Barbara Hoffman.

You can read AFP’s complaint and Morel’s answer over on Dan Kennedy’s, Media Nation. I originally found the story on 100 Eyes Blog.

What’s interesting is that AFP is claiming the Twitter TOS, where he gives Twitter “a nonexclusive license to use his photographs” gives them the same right. Not sure how they came to this leap of faith where images distributed by twitter can be printed on the front pages of newspapers, but we will soon see what the court thinks about it. I’m also surprised that they didn’t go for a fair use defense. The courts have ruled both ways when newsworthy images are used without permission and generally news organizations will place getting the images in front of their viewers well before clearing the rights. You can read more about that on the Photo Attorney blog (here) where Carolyn writes “it’s clear that the unauthorized use of a photograph is much more likely to be deemed a fair use when the photograph itself is newsworthy.”

What’s clear is that professional photographers need a method for releasing images in these types of situations and that AFP is used to bullying citizens when swiping images from social networks to distribute over the wire and when they ran into a pro they got the horns.

UPDATE: Getting more interesting. Images uploaded to TwitPic and linked in twitter. TwitPic has a T&C that says © remains with the photographer. Story here: http://www.1854.eu/2010/04/agence_france_presses_slap_to.html

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46 Comments

  1. Nail Getty and its surrogate AFP to the wall! You’d think they’d simply apologize and try to do the right thing but instead they choose to defend their egregious conduct and intimidate the person who actually owns the copyright. Good luck to Mr. Morel.

  2. We really need someone to get stomped hard, someone big like AFP and Getty – a huge judgement in favor of Mr. Morel to a huge company. Luck Morel.

  3. Personally,

    I think social networking like Facebook, Twitter, etc. should be avoided because of their TOS.

    What I suggest during my classes is the following: Get a Photoshelter account, post your work there for licensing and then use social networking to link to your Photoshelter account where work can be licensed directly from you. Instead of placing pictures on social networking sites use content related keyword text links to do the job.

    In addition to self marketing, I would suggest that DEMOTIX is a good way to get your news pictures out there. They treat us fairly.

    Just my opinion.

    Sam

    • @Sam D’Amico, Wise words Sam

    • @Sam D’Amico, Exactly what I was thinking. I don’t mean to imply any excuse in the actions of AFP, or any blame on the part of Mr. Morel, but I’d rather not risk something like this happening.

    • @Sam D’Amico,

      agreed don’t put any of your work that has real value here.

  4. As a side note, I don’t think Getty, AFP, and their kind gives a shit about photographers.

    Just look at they way they are treating Mr. Morel.

    The technology available to us today has enabled us to do this stuff by ourselves.

    Do we really need to do business with people who bully and steal from us?

    I say fuxx no!

  5. We really need someone to get stomped hard, someone big like AFP and Getty – a huge judgement in favor of Mr. Morel to a huge company. Luck Morel.

  6. I’ve heard talk of automatic e-copyright registration built into LR or other applications. I think a depository for our work could be built into the apps as well were licensing would have to take place before images could be used. This might help speed up the process.

    • @Sherwood Cox,
      fantastic idea you would think an app or a plugin like this would not be hard to build

  9. Does anyone have any suggestions how to get your images out there when these type of incidents happen? Example: a few years ago when San Diego had those huge fires (I think the biggest fires in history for San Diego) I played photo journalist and got some amazing images, but had no idea how and who I could send them to. (major tv networks, newspapers, etc..)

    or would it probably be best to find an agency to do it for me that specializes in these types of scenarios where they can get my images out a lot quicker and reach way more people then I ever could.

    • @Jack English,
      It can get a little tricky on breaking news. As Rob noted “Contact” is very good and professional, but just one avenue and focused on magazine and international sales which could be days or a week from the eye of the event.
      In your case Associated Press in Los Angeles would have been a good start. They are the hub for California, Arizona, Nevada and Hawaii and your contact to NY.
      Others are Zuma, Bloomberg and Getty.
      Remember that they work for their clients and as soon as you pick up the phone it is a negotiation but if you have the “money shot” you drive the bus.
      The key is you want to get your image in every newspaper in the country for a rate without giving away the rights to magazine, television and web. The more eyes on the image translates to more sales and this expands into the international market.
      There is a whole sub-culture in “Outing” both individual newspapers and organizations when images are moved to AP.

      This might be a better interview for Rob to have with Santiago Lyon the DOP of Associated Press down the road.

      Selling directly to any local newspaper is not going to get you much money $200-1000.00 depending on the size of the publication and where the image is published. Remember to note “One Time Use Only! and No Archive!” when you deal with them or they will go back and reuse your image time and time again.
      Also make sure you are talking one publication and not the corporation. An example is Media News Group owns almost every newspaper along the I-10 corridor from the LA Daily News to Redlands. You don’t want them all to get your image for free.
      Most picture desks have been reduced to nothing these days and the photo editor is going to put his efforts in images from their staff and yours will go on the back burner.

      This is what it takes to keep a staffer safe in a wildfire.

      1. $14.50 Wildland Gloves
      2. $70.00 Nomex Shirt*
      3. $70.00 Nomex Pants*
      4. $25.00 Wildland helmet Model FH911C
      5. (n/a) Wildland helmet assembly
      6. $23.00 Goggles
      7. $109.00 Fire Shelter (No Norair Lancs/Plastics, Metor Plastics or Cecile units)
      8. $20.00 Wildland Nomex hood
      9. $44.95 Web Gear (holds two canteens, fire shelter and fanny pack)
      10. $20.00 Two canteens
      11. $150.00 Boots

  10. Wow. Poor Danny. One would thing Getty would have more couth.

    • @Nicole Morgenthau,
      Really, when has Getty had couth, ever?

    • @Nicole ,

      That is some 5-Star irony, and really made me laugh

      ( Getty/couth part, not poor Danny part)

  12. I’m not sure why the photographer didn’t have a responsibility to protect his own interest? Publishing images on twitter, facebook, etc.
    may not have been the best choice if he was looking to increase his income.

    “under the circumstances and he used Twitter to do it”

    Good Lord every photo agency in the world was represented in Haiti within hours of the quake and some cell and web access was still available.

  13. I don’t think AFP has any intention of winning this case. The quotes I’ve seen from just about everyone reporting this goes something like: “AFP are jerks, and posting images on Twitter gives your rights away.” The press completely disregards the fact that you can’t post images on Twitter—you can only link to them posted somewhere else. It was Twitpic in this case whose terms of service are quite benign for photographers.

    Getty and AFP know that distribution channels like Twitter undermine their business model, especially for breaking new. It is in their best interest to convince professional photographers and buyers that Twitter or anything similar is dangerous. The press is helping them spread this message. PDN for instance (http://www.pdnpulse.com/2010/04/insult-to-injury-afp-suing-photographer-it-stole-photos-from.html) just runs AFP’s quote: “Anything uploaded to Twitter is free for re-distribution” without questioning whether it’s either relevant or true. This whole suit brought by AFP smells like marketing with fear tactics to me.

  14. I’m surprised AFP is actually countersuing, especially in this way. Isn’t it more common just to say, “Oops! Sorry!” When they get caught doing this, and offer to pay their standard rate?

    Gotta be cheaper than fighting this. Especially with BS arguments about Twitter’s TOS that aren’t even right about its terms.

    It’s especially stupid because their business model relies on others respecting their copyright? “Don’t steal our stuff (but we can steal yours)” isn’t exactly great PR for them.

    They can’t even argue they were ignorant of the law, because companies in their line of work HAVE to employ lawyers.

  15. He should also sue the other photographer who stole his images. That, to me, is worse than the AFP theft.

  16. I find it interesting since I had written a post recently on the subject of terms of service for Facebook, twitter, BlogSpot and the sorts. It included the post by Carolyn E Wright at Photo Attorney, and a reference of the Google class action suit settlement back in 2008 and the newest one lawsuit filed by APA, ASMP, and the Graphic Artist guild. Most of the TOS for the above sites leave a lot to be desired in my opinion! All you have to do is look at their masters.
    My opinion, If you use any of the sites with the words below in their TOS and you directly post your content there, you’re at peril of giving it away. If you use links then they are fairly innocuous.

    “For content that is covered by intellectual property rights, like photos and videos (“IP content”), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (“IP License”). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.”

    If you run your images through LR2 or the upcoming version LR3 three you can have copyright data imbedded in the meta data. You can also have a variety of copyright watermarks/logos appear where ever you desire.

    Fines or Jail time really don’t have to impact to stop the theft of IP, art, content of any type. Our prisons are already overcrowded. Maybe we could send the offenders to Greenland. Public display of humiliation would be a start. I think that they are just trying to get away with a Corbin, trying to establish a better precedence so the big #&%$@(!@#*$(*@’s can get away with not paying anything! It’s an overt attempt at screwing photographer worse than Google tried to do with books, the F’ers!

  17. To be honest, I do not know AFP.This is the first time for me to hear it.

    • @sandra, AFP is one of the three largest news agencies in the world, and is the oldest.

  18. Thanks for posting on the issue Rob. We need more discussions about Social Media and the possible effects and outcomes on our copyright.

    ASMP commissioned attorney Chris Reese to undertake a review of the Terms of Service (TOS) of six social media sites and to prepare findings and recommendations. The sites included in his assessment are Facebook, Photobucket, Flickr, MySpace, YouTube and Twitter. This report presents recommended best practices, considerations, common terms used, and hypothetical situations photographers may face when images are posted on social networking sites, and we posted our findings here

    http://asmp.org/articles/social-media-terms-service.html

    If you are considering the use of any Social Media for distribution of your images it would be prudent to read this article first.

    Thanks again Rob.

  19. The case is too complex to comment on yet. What surprises me is that AFP is usually fair with photographers (in my experience at least).

    I just realised that hosting my pictures on blogspot (http://davidikus.blogspot.com/) may mean I am losing rights to them and that I have not checked this… I need to work on that pretty quickly, actually. I shall remember photoshelter as a good place to host images. Thanks for the tip.

  20. Does anyone know how exactly the photos were posted/linked to? You can’t post photos directly on Twitter, right?

    • @Jim Newberry, No you have to use twitpics or link to them. Twitter is just the avenue to put it out there.

      • @Ed Hamlin, right. So isn’t a Twitpic issue, not a Twitter issue? Or is TP owned by Twitter? If you can’t house photos on Twitter, what does it have to do with them? Their TOS can’t possibly cover all links I assume…

        • @Jim Newberry, Based I what I have read, if the images were placed on twitpic then it would be a twitpic issue, if you do a Whois for each ot the entities you will see Twitpci is a seprately owned company and not related to Twitter, with the exception of associated name usage. Twitpic has pretty tight IP copyright statement for photographers.

          Who ever it was that jacked the images is the beginning of the chain and APF is at the other end. It seems that anyone who purchased licensing from APF might get a hand slap in the whole situation.

          APF should hang by the yardarm until the sharks show up. Wait they’re circling. I personally think that the end result will be just like what happend between CorbiS and Chris Usher. Oooops an error on my previous comment I refered to Coris as Corbin.

          • @Ed Hamlin, Yeah, that’s what I was wondering. I don’t understand why Twitter’s TOS would come into play if the pics were hosted at Twitpic.

  21. Wow, this is interesting. I used these images and just got a message a few weeks back from our Getty rep asking us to remove them, no explanation.

  22. Wow.
    “Antagonistic assertion of rights”?
    This has to be the most inane charge I’ve ever heard of.
    If it’s a legal right, how can it be antagonistically asserted when the alternative is to allow it to be violated?

  24. […] was reading a story over at A Photo Editor about how Haitian Photographer Daniel Morel is suing APF (Agence France Presse) for using images […]

  28. It’s so sad to see people fighting so hard for ‘rights’ that don’t actually exist.

    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

    This is neither here nor there. Courts have increasingly concluded that essentially *all* uses can be considered commercial in some way, indirectly or otherwise. That said, breaking news is in the public interest – even if it is done by a commercial organization.

    (2) the nature of the copyrighted work;

    A newsworthy photograph (factual) as opposed to a work intended to be creative or expressive.

    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    Again, this could go either way, but presumably the ‘work’ is a high-resolution photograph, and the reproductions were smaller in scale. The creator also retained his ‘right to first expression’ by being the first person to post these in public – another fair use consideration.

    (4) the effect of the use upon the potential market for or value of the copyrighted work.

    Typically the most heavily weighted factor, this weighs heavily in favor of the use. Wait, what? But they didn’t pay him! True, but now he has more free publicity than he knows what to do with … all for a photograph he put up for the public to see.

    Moreover, coming back to the point of them counter-suing him, in the United States (for example) there exists a provision for just such cases – specifically: if the creator misrepresents their position as sole copyright holder they can be sued for legal fees and the like.

    Wait, what? The guy with the copyright can be sued? Heck yes, and with good reason: put yourself in the shoes of someone who *did* use an image under fair use – suddenly you are sued, spend tens of thousands defending yourself, and win … but you still are out tons of cash.

    It is the *responsibility* of someone wishing to pursue people they *believe* to be infringing to *first know their rights* – in this case, it is clear the photographer did *not* know his rights, uploaded the images to Twitter and blamed someone for using them *as if they had stolen them straight from his camera*

    All I see these days is photographers bemoaning how technology is robbing them, but it’s time to realize that six works spoken by Kevin Kelly sum up the situation in a nutshell: the internet is a copy machine. You want to protect your works? Go back to the 20th century. You want to profit from them? Change your biz model.

    • If you put a photograph online for the public to see, it does not give someone the right to resell it. That’s absurd. FYI- you cannot upload images to twitter. Maybe you should open an account and try instead of pontificating from the sideline.

  29. Imagine that with an Orphan Works type of law in place, the defense for AFP could be that the original photographer was unknown. Interesting that this started with someone else stealing the images, though AFP gave the thief the credit. It would be even more interesting if the thief had been paid.

    Reminds me of a music company in Switzerland that picked up little known band music CDs, then posted them to iTunes as if they had the rights to them. I only found out about that because I shot a few covers for one of the bands, and I was surprised one of my images showed up on iTunes with the music that the band didn’t even know was there. To Apple’s credit, they quickly pulled the music down once notified. Unfortunately the logistics of a legal challenge in Switzerland for a small band in California meant that was the end of that ordeal. I suspect that was the business model idea in the first place, with the thinking that the Swiss company was unlikely to be challenged in court by anyone not living in Switzerland.

  31. Let me see, this is October 2010. In my fifteen years as executive director of ASMP, if I learned one thing it was that cases like this take years until conclusion. Trial court cases are decided on facts an law, and in this case the facts are unclear and so is the law. So, I estimate that the case will finally be decided about 2013.

    Don’t get me wrong, I want the photographer to win. I want it so bad that my arthritis hurts. We have a long wait to see. I think the photographer will win because the various online agreements are, in my opinion, are unconscionable and therefore unenforceable.

    With that said, four decades ago when I was an aggressive editorial photographer, long before federal express let alone the Internet, I had a ‘Contact’ in the States to whom I could send work to be then sent on to others. That is an easy thing to do so you do not have to rely on Twitter. Had I shot the images in question, I would have sent them, not to Twitter, but to either of my 2 adult children each knowing what to do with them.

    While ASMP rarely gets involved in trial court cases, I would urge them to get into this one. In this case, and let me repeat, — in THIS CASE — the time to get involved is NOW! The crux of it is unconscionable Internet agreements.

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