So, AFP, how’s that “steal the photos & sue the photographer” business plan working out then?
Three years almost to the day since photo agency AFP heisted Haitian photographer Daniel Morel’s award-winning photographs of the 2010 earthquake the first court decision has been handed down in what has evolved into a high-profile and significant copyright case. In a humiliating ruling against the agency, a New York court has upheld Morel’s claim for copyright infringement against AFP. The agency had initially attempted to sue the photographer when he objected to their theft of his images from Twitpic, where he had uploaded them and linked to his Twitter account in an attempt to market his work.
This isn’t the end of the affair though, just the beginning of the end. For one thing, there’s the matter of the bill AFP will face. Morel’s claim against AFP calculated damages based on treating each download of any of his images by an AFP client as a separate infringement. This resulted in a figure so huge that nobody seemed quite sure what it was, but it certainly totaled upwards of 100 million dollars. The judge however threw this calculation out, stating that the law only allowed for one infringement per image, not for each use of that image. But although the court has now set the rules on how the damages should be assessed it declined to make an actual assessment, leaving that for a jury to later decide.
Morel uploaded 13 images, of which 8 were infringed, and the maximum allowed per image is $150,000. There’s also the matter of AFP’s falsification of Morel’s copyright information, which allows for up to a further $25,000 in damages per image. So the maximum the jury can award against AFP is $1,400,000. For their part AFP previously asked in a court memorandum that if found guilty they should pay only $240,000. Whether that memorandum will even apply when the matter comes before the jury is unclear; what is now clear is that AFP’s final bill will be somewhere between a quarter of a million and one and a half million dollars, plus substantial legal costs.
Exactly how much will be decided by the jury, who will decide partly on the evidence of willfulness in the AFP infringements; but since courtrooms are theatre they will also be swayed by the performances of the lawyers and witnesses. So far the AFP legal team’s performance has not been Oscar material: while outside court they have declared “we shall prevail”, inside they have at times been mocked by the judge. There’s plenty of evidence of willfulness in AFP internal memos that have already come to light, but it’s the agency’s director of photography for North and South America Vincent Amalvy who is likely to deliver the killer blow. In addition to his involvement in the Morel fiasco Amalvy was also caught stealing other Haitian images, and has already admitted that when it comes to breaking news AFP toss out the copyright rulebook. Such behaviour is unlikely to play well with the jury, so while the eventual award may not reach the maximum allowable, bet on it getting into six figures.
But the real final total for the Haitian infringements will almost certainly be more, possibly much more. For although AFP and Getty are the headline defendants in the case, their distribution of the images led to many further infringements by end users such as Time, CNN and many others. These have already been settled out of court for undisclosed sums. And the AFP ruling doesn’t include co-defendants Getty Images: that will be addressed by a jury trial, and should Getty lose the result will be further substantial damages awarded to Morel.
A press release from Morel’s lawyers the Hoffman Law Firm following the AFP ruling both addressed the issue of damages and hinted at the fate that may befall Getty:
“Although Judge Nathan rejected Morel’s legal theory entitling him to as much as one hundred twenty million dollars in statutory damages, Morel still hopes to win millions in damages following the trial. The ruling and the case may have implications for users of social media as well as ‘service providers’.”
That leads directly to the issue of AFP’s partner and co-defendant Getty Images. The court didn’t rule on Getty’s culpability, leaving that decision to a further jury trial, since Getty eventually entered a different defence from AFP. That defence is, to say the least, interesting, since it essentially hinges on Getty throwing their partner under a bus:
“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.”
The law Getty are relying on to back that statement up is the Digital Millennium Copyright Act, specifically the clause that absolves internet service providers from guilt when infringing material is uploaded to their servers by a third party: this is commonly referred to as the safe harbour or Youtube clause.
At first sight that looks like a viable defence: the DMCA is quite specific in its requirements and Getty appear to have been careful comply with at least some of them. But there are at least two potentially fatal flaws in Getty’s strategy. For one, the DMCA is specifically intended to protect an internet service provider from the legal consequences of copyright infringement on their servers initiated by a party over whom they have no control: Youtube should not be held responsible for the behaviour of a teenager uploading pop videos is the rationale. But such a comparison is obviously absurd: Getty and AFP are major media companies who have entered into a legal agreement to syndicate images for big money, not teens sharing ripped vids.
Secondly, the DMCA only protects a provider when the entire process of the infringement is automated. Getty are stressing 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.
And the biggest problem for Getty is that they are relying completely on the DMCA to get them off the hook: they have no other options left. So in the end Getty’s reliance on the DMCA may prove to be a sign of desperation rather than clever legal maneuvering.
Away from the courtroom there’s also a comic sub-plot to be resolved, starring various figures who either absolved AFP of blame or actively defended the agency’s actions. Aside from the usual freetard nutters these included the National Press Photographer Association’s Mickey Osterreicher, photo blogger John Harrington and Visa Pour L’Image’s J-F Leroy.
Osterreicher – who’s only a lawyer after all – managed to read the wrong company Terms of Service, quoting those of Twitter when the ones that mattered were those of Twitpic. Harrington, who posits himself as a business expert, got the company right but the date wrong, relying on ToS that Twitpic had introduced after and in response to the AFP theft: that led him to proclaim “AFP did the right thing”. And Leroy was especially vociferous in his defence of the accused, a stance that most observers concluded was entirely unconnected with the agencies’ close association with, and sponsorship of, his Perpignan photo festival.
Curiously, some of these carefully considered expert opinions have now mysteriously disappeared. In the wake of AFP’s crushing defeat it would be interesting to hear what Osterreicher, Harrington and Leroy have to say for themselves now. Instead expect only the sound of web pages being deleted.
For the last week the interweb has been amusing itself mostly at the expense of Agence France Presse photographer Joe Klamar. Assigned to shoot the U.S. Olympic Committee’s Media Summit, the AFP staffer delivered a set of portraits which are…well…different.
Response to the pictures was overwhelmingly negative as only the interweb can be. Amateur, terrible, shoddy, pitiful, horrific, shit and abysmal were just a few of the compliments doled out to Klamar’s work, along with the oft-repeated “I could do better with my cell phone”. Comments threads descended into outright brawls as the web’s photography experts fought over which of them would have produced the best set of pictures in Klamar’s situation. The level of self-awareness on display was perhaps best illustrated by KameraDude:
“As a Flickr Pro who has won hundreds of awards there, I can tell you these pictures suck. I know I could have done better had I been invited to take those pictures. Even with only one flash, my experience with Strobist more than qualifies me to take better flash pictures. I couldn’t even find this fellow on Flickr or 500px. What kind of editers or art directers choose him?
(Nikon D800E, Olympus OM-D, Fuji X100, Olympus OM-2 (used with Tri-x 400) IMac/Ipad. Silver Nikonian, Muti award winning Flicker Pro)”
There were of course some contrarian opinions. A few brave souls tried to claim the work as Art. Michael Shaw at BagNews pushed his luck to breaking point by trying to claim the “photos take a silent sledgehammer to the jingoistic adulation of the American team”. And of course the web’s nutty conspiracy theorists used the fact that the photos had gone viral as proof the whole scandal was a cunning plot by AFP & Getty to score some free publicity.
In fact only Ken Jarecke came close to the truth when he wrote: “this is what you get when you fire everyone that has talent and cares enough to use it.” But Jarecke was only half-right: his conclusion still points the finger of blame at Klamar, whereas the true responsibility lies elsewhere. What really happened is both disappointingly banal and depressingly familiar to actual working photographers, as opposed to interweb photography experts: the photo desk fucked up and left the photographer to carry the can.
The clues are in an AFP blog on the fiasco. Mladen Antonov, AFP’s photo director for North America, attempts some positive spin, claiming “Joe was sent to this assignment to do exactly these kind of pictures. We wanted something different and we got it!” But Klamar gives a rather different version: “I was under the impression that I was going to be photographing athletes on a stage or during press conference where I would take their headshots for our archives.”
Both these statements can’t be correct. Either AFP briefed Klamar that what was needed was an off-the-wall portrait session, or they told him it was a press conference. Since Klamar showed up with a classic wire photographer’s press conference kit of two cameras, 17-35, 80-200 and 300mm lenses, and a transmission laptop, it’s clear who’s telling the truth. Add to that the fact that this was the first time AFP had attended a U.S. Olympic Committee Media Summit and it all becomes rather obvious: the AFP editor handling the assignment was either too lazy or incompetent to check the details with the organisers and so misled Klamar into thinking he was heading to a simple press conference.
Arriving to find other photographers from rival agencies – ones that had bothered to research the story – setting up lights and backdrops, he was forced to beg for space on another photographer’s set. In other words, he was essentially left to fix the assigning editor’s unfixable mess.
So if the interweb should be ripping anyone to shreds over the photos it’s not the hapless Klamar, but the AFP desk jockey who failed to brief him. But since only AFP know who the editor was don’t hold your breath waiting for that to happen.
*Shiny Bum: noun, abbr. Shiny Bum Picture Editor. Professional news photographer term for photo desk editor, usually one lacking field experience. Generally not used to the subject’s face.
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 – vincent.amalvy@afp.com – Thank you.”
From the Morel memorandum:
“At 7:48 PM, Amalvy sent an email to wapix@afp.com with the image attachment ‘haiti 2.’ At 9:03 PM, Amalvy sent an email to wapix@afp.com with an image attachment ‘haiti 3.’ At 9:03 PM, Amalvy sent an email to wapix@afp.com 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 wapix@afp.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 wapix@afp.com 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.”
Just as the doomed Agence France Presse case against Haitian photographer Daniel Morel suffers yet another blow, the action on Twitter related photo heists has moved elsewhere.
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.
While it’s celeb material that has fuelled the deal, the new Plixi terms of use of course apply to anyone using the service. So anyone uploading images to Plixi is now effectively handing over the keys to the ranch, for free: perhaps that’s why Plixi appears to have forgotten to mention the WENN deal anywhere on their site. It is after all the kind of important change one might expect to read about on their news blog:
“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.
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?
