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 email@example.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.
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.