The much anticipated court case pitting Haitian-born photographer Daniel Morel against Agence France Presse, Getty Images and many other news organisations opened on Friday in New York. AFP had already agreed in advance to drop their claim against Morel for financial disparagement, leaving the first day for oral arguments as to whether Morel’s many and various claims against AFP and the other defendants would be allowed to proceed. After a hearing lasting several hours Judge William Pauley retired to consider the arguments, and it is not yet known when he will rule on whether Morel’s case for copyright infringement will proceed or be thrown out.
But nature, photographers and the internet all abhor a vacuum, and with no obvious excitement in court the onlookers soon became restless. Before the day was out Duckrabbit’s Benjamin Chesterton had tossed the first brick at Jean-François Leroy, organiser of the Visa Pour L’Image Festival of Photojournalism; or as Chesterton would have it, the Festival of Shanty Town Photography.
Leroy had already earned much opprobrium as a result of a June interview in the British Journal of Photography in which he appeared to defend AFP’s actions in misappropriating Morel’s images, distributing them without his permission, and then threatening legal action when the photographer objected. Two weeks later the Visa Director followed up with the even more surprising assertion that photographers should avoid social media altogether.
In “It Wasn’t Rape Your Honour” Chesterton accused Leroy of double standards, “siding with an industry that loves photographs because you can make money from them, but has no time for individual photographers.” The cheeky duck then rounded off the piece with a spot of “see how it feels when it happens to you”, heisting a batch of photos from the Visa website and noting the lack of copyright protection for photographers there.
Leroy was never likely to take that lying down, and sure enough he responded with the bizarre and meandering “My Position Here Is That Of An Insurance Company”. His reply is worth reading, if only because it’s always entertaining to watch someone attempt to simultaneously espouse two contradictory positions. So while he insisted that he was not defending either party, Leroy went on to describe Morel’s behaviour as wrong, mistaken, unethical and amateurish. Then for good measure he described Duckrabbit as defamatory and suffering from “viewing impairment”.
Unsurprisingly Leroy’s performance played very badly with the Duckrabbit audience, and unpleasant comments quickly followed. One lengthy response, a point-by-point demolition of Leroy’s argument, accused him of “industry arrogance and business logic gone mad”.
It’s the nature of such disputes that the ante is constantly being raised, so within hours the Duckster was back for round three, advertised this time as “with the gloves off”. In “Dear Mr. Leroy” Chesterton posed the question that had been hanging in the air ever since that first BJP interview: could Leroy’s position be explained by the fact that AFP’s main co-defendant, Getty Images, is also a major financial sponsor of Leroy’s Visa festival?
Now that’s a mean, low-down, nasty kind of a question. But it’s also a perfectly valid one, the kind that is asked every day of participants in other industries when there is a perceived conflict of interest: there’s no reason why the photo industry should be any different. Whether Leroy cares to answer it is another matter.
But Leroy is not the only member of the photo establishment to blunder over the AFP/Morel case. In America the National Press Photographers’ Association issued a press release that inadvertently revealed the NPPA legal department’s apparent inability to grasp the most basic issue in the case: where Morel had actually uploaded his pictures.
According to NPPA general counsel Mickey H. Osterreicher:
“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…This case is a perfect illustration of why anyone posting or uploading images to a web site should read and understand the terms and conditions of that site before accepting them.”
But Morel didn’t post any pictures on Twitter. Nobody ever has, because – as most 10-year-olds could explain to the NPPA – Twitter is a text message system: it can’t host pictures. Morel’s pictures were posted to Twitpic, an entirely separate legal entity from Twitter, with entirely different terms and conditions; therefore it is the Twitpic terms that are applicable in the Morel case. That’s the kind of very basic legal point one might expect a lawyer to notice.
Or to put it another way: this case is a perfect illustration of why any lawyer posting or uploading legal opinions to a web site should read and understand which terms and conditions are applicable before pronouncing on them.
So as a public service for Jean-François Leroy, Mickey H. Osterreicher, and anyone else who has difficulty understanding the bleeding obvious, here – yet again – are the applicable terms under which Daniel Morel uploaded his pictures to Twitpic:
“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”
Now, what part of that don’t you understand?