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 – email@example.com – Thank you.”
From the Morel memorandum:
“At 7:48 PM, Amalvy sent an email to firstname.lastname@example.org with the image attachment ‘haiti 2.’ At 9:03 PM, Amalvy sent an email to email@example.com with an image attachment ‘haiti 3.’ At 9:03 PM, Amalvy sent an email to firstname.lastname@example.org 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 email@example.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 firstname.lastname@example.org 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.”
Fence [noun]: “a receiver of stolen goods” – Merriam Webster.
“An individual who knowingly buys stolen property for later resale, sometimes in a legitimate market.” – Wikipedia.
Like every latest greatest thing on the interweb Pinterest has seen a sudden rush of subscribers simply because…well…because it’s the latest greatest thing on the interweb. Described as a “virtual pinboard”, Pinterest claims to “let you organize and share all the beautiful things you find on the web”. This is usually done by a “Pin It” button, a browser bookmarklet that copies content from a web page to the user’s Pinterest board. From there it can be copied by other Pinterest users to their boards, and from there…well, you get the idea.
Alarm bells should already be ringing, but that hasn’t prevented a stampede for the Pinterest bandwagon. BMI Airlines launched a Pinterest lottery; GUESS, a Pinterest contest. Amateur Photographer, the world’s oldest photographic magazine, began pinning iconic photographs from the likes of Magnum, Corbis and Getty Images. The UK’s National Portrait Gallery has likewise been pinning images from their collection. And millions of individuals have been trawling the web, pinning whatever takes their fancy.
And then the questions started. Like: who owns all this stuff anyway? And what does Pinterest plan to do with it all?
As the answers emerged – somebody else owns it, and Pinterest now claim rights to do whatever they want with it – some of the corporate pinners began to back off. First the Boston Business Journal pulled all their material after only one day on-site. Then Amateur Photographer’s pins quietly disappeared: unlike the BBJ the AP has declined to say why. The NPG material is still there, but after comments from photographers the NPG is now “looking at the implications for the Gallery”.
As concerns grew it became clear that for many people Pinterest’s real crime wasn’t just that they had created a system designed to encourage easy copyright infringement, but that they attempt to shift the blame for the ensuing infringements onto their users:
“YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION, SERVICES AND SITE CONTENT REMAINS WITH YOU.”
“you agree to defend, indemnify, and hold Cold Brew Labs, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Site, Application, Services or Site Content, (ii) your Member Content, or (iii) your violation of these Terms.”
There is of course a way to use Pinterest perfectly legally: just pin work you’ve created yourself or own the rights to. It’s true that in doing so you give Pinterest the rights to do anything they want with your work, including selling it. But if you’re a tireless self-promoter who doesn’t care how your work is used you may feel the publicity you get from Pinterest makes the trade-off worthwhile.
Except for one problem: that’s not what other Pinterest users – your audience – actually want you to do. So when tireless self-promoter and internet fauxtographer Thomas Hawk went on a “manic pinning episode of his own work” he was accused by one fan and Pinterest user of “masturbating in public” in using Pinterest for self-promotion.
And Pinterest agree, albeit in rather more restrained language:
“Avoid Self Promotion
Pinterest is designed to curate and share things you love. If there is a photo or project you’re proud of, pin away! However, try not to use Pinterest purely as a tool for self-promotion.”
So by their own admission Pinterest isn’t primarily for publishing original creative work, but republishing the work of third parties who almost inevitably will not have given permission.
Pinterest’s main defence in all this is the Digital Millennium Copyright Act, which provides Internet service providers with a measure of protection against prosecution as a result of copyright infringement by their users. But DMCA requirements are quite specific. They’re a package deal in which the provider is supposed to meet all the requirements, not pick and choose which parts they prefer, adding additional language to suit. However, according to intellectual property lawyer Connie Mableson, that’s exactly what Pinterest have done, leaving their DMCA defence looking distinctly creaky.
Even if Pinterest fix the wording of their DMCA offer there’s a further threat lurking: the DMCA is intended to protect providers some of whose users upload infringing content from time to time, not to protect companies whose entire raison d’être is copyright infringement. But that’s exactly the position Pinterest is in: without copyright infringement they have no business. Anyone at Pinterest who thinks that doesn’t matter needs to read this:
“We have spent millions of dollars on legal advice over the last few years and our legal advisers have always told us that we are secure and that we are protected by the DMCA which is a law in the US that is protecting online service providers of liability for the actions of their users.”
Those are the words of Megaupload founder Kim Dotcom, currently facing charges of racketeering, copyright infringement and money laundering. And what led to those charges? Why, Megaupload’s members were uploading and redistributing copyrighted material without permission – just like Pinterest’s members.
Econsultancy has asked: is Pinterest a copyright time bomb? The simple answer is yes. Pinterest is a cynical exercise that enables and encourages others to steal and is profiting from those thefts, while simultaneously attempting to plead innocence and place the blame on those who Pinterest encouraged to steal in the first place. But when the lawyers come calling, as they surely will, Pinterest may find that by shafting both creators and consumers of culture they have precious few friends left to defend them.
Charles Swan is one of the UK’s top intellectual property lawyers. His opinions on copyright and court judgements are to be taken seriously. Cory Doctorow…well, perhaps not so much.
Recently His Honour Judge Birss QC found in favour of Justin Fielder and Temple Island in the company’s claim that Nicholas Houghton and New English Teas had breached copyright in production and publication of a photograph [above right] of a London bus that had been Schindlered to within an inch of its life. Temple Island’s case was that the New English image was an obvious copy of their own Schindlerfest [above left] from a few years before. But although similar in many ways the two are entirely separate images: so where was the infringement?
Swan described the ruling as “ perhaps surprising”, a phrase that can have myriad meanings coming from a lawyer. But for the Interweb it meant just one thing: the sky was falling. “Photographers Face Copyright Threat After Shock Ruling”, screamed Amateur Photographer. “Create A Similarly Composed Photo In The UK And Risk Copyright Infringement”, howled Petapixel. According to these and others, anyone in the UK taking a photograph similar to an existing photograph now risked ending up in court for breach of copyright. To the most deranged, “taking a photo in the same place where someone else took a photo can now be a crime.”
None of this was true, but with crashing inevitability the most misleading and hysterical analysis came from Doctorow at Boing Boing. Eager not to let the facts get in the way of a good story, or perhaps because he’d neglected to actually read the judgement he was commenting on, Doctorow took aim at the “insane” and “bizarre” ruling and let rip:
“If a Reuters and an AP photographer are standing next to each other shooting the Prime Minister as he walks out of a summit with the US President, their photos will be nearly identical. Will the slightly faster shutter on the AP shooter’s camera give him the exclusive right to publish a photo of the scene from the press-scrum?”
“The judge here ruled that the idea of the image was the copyright, not the image itself.”
“This creates a situation where anyone who owns a large library of photos — a stock photography outfit – can go through its catalog and start suing anyone with deep pockets: ‘We own the copyright to “two guys drinking beer with the bottoms of the mugs aimed skyward!”’It’s an apocalyptically bad ruling, and an utter disaster in the making.”
Doctorow’s hysteria is of course unfounded. Just one paragraph from Birss’ ruling comprehensively demolishes Corky’s claims:
“The defendants went to rather elaborate lengths to produce their image when it seems to me that it did not need to be so complicated. Mr. Houghton could have simply instructed an independent photographer to go to Westminster and take a picture which includes at least a London bus, Big Ben and the Houses of Parliament. Such an image would not infringe.”
So why did the defendants go to such “elaborate lengths” and why did Birss rule the way he did? Simple: the combatants had history. New English had previously infringed a Temple Island image and settled in court. Temple Island offered to license an image to New English, but the latter declined. Instead they set out to produce their own image based on that of Temple Island: make it as close as possible, went the thinking, but just different enough to avoid infringing. That’s a judgement call, and New English got it wrong.
Helpfully Birss even spelled out exactly how they’d got it wrong. If New English had never seen the Temple Island image and had produced even an identical image independently they would have been in the clear. If New English had scoured the web for similar images for inspiration and produced the image they actually did, they still would probably have been ok. But instead they were interested only in the Temple Island image, copying it as closely as they – wrongly – felt safe to do. And in so doing they breached Temple Island’s original expression of an idea.
Note the “original expression” bit. Contrary to what Doctorow, Techdirt and numerous others tried to claim, Temple Island hadn’t suddenly claimed copyright of London landmarks, Schindlered or not. They simply objected to another company – whose products incidentally sell alongside theirs in tourist outlets – studying one of their most marketable images, then setting out to replicate it as closely as possible.
In other words, the judge reached his conclusion by employing a commodity clearly lacking at Boing Boing, Techdirt and elsewhere: common sense.
The Shop Till You Drop Award [sponsored by Adobe]
The Robotog Award For Photography And The Law
The Uncle Bob Award For Wedding Photography
The Susan Sontag Award For Writing On Photography
Photo Caption Of The Year
The Enron Award For Business Management
Quote Of The Year
Photo Product Of The Year
The Remix Award For Plagiarism
Grand Prix de Folie Photographie
Professional photographers have rarely looked kindly on Google. The search engine giant has long been the first port of call for image infringers, and the situation was only made worse by Google’s habit of stripping metadata from images, turning them into orphans.
But over the summer things have changed. In June Google launched Search By Image, and the following month began displaying EXIF data in their image search returns. The latter absolves Google of the orphaning charge, but it’s Search By Image that’s the real game-changer. Google have promoted SBI as a tool for image users to find images they might want to publish, and it could of course be used by such people to track down photo owners so that the image could be properly licensed. But its real value to photographers lies in its ability to track down images that have already been stolen and published on the web.
Previously image searching on Google was a very hit and miss affair. Enter some keywords, and depending what had survived Google’s metadata mangling and any changes by the publisher you might or might not find the published mage: more usually than often not. But with SBI you enter a low-resolution version of the image on Google’s servers and they search the web for matching images: if any are found they appear in the search returns. And since a visual search is more precise and doesn’t rely on matching keywords SBI invariably returns far more results than a keyword search.
Of course SBI isn’t the first reverse image search: TinEye, PicScout and others have been running for several years. But Google’s offering is immensely more powerful simply because they’ve already indexed far more of the web than their rivals. Not that SBI is comprehensive: TinEye for one sometimes finds images that Google doesn’t, so ideally one should use several services when searching for infringements. But all of these searches are time-consuming, and SBI finds so many more images than the competition that if you’re only going to use one reverse image search then SBI has to be it.
All this is very bad news for photo thieves. For years they’ve heisted images with impunity: the chances of being caught were low, and if caught the default defence was “I found it on Google and didn’t know who the owner was”. But that excuse disappears with the now easily viewable metadata, and the chance of being caught has moved from remote to likely, going on inevitable.
Faced with the near-certainty of being caught a smart thief would stop. Unfortunately most image thieves aren’t smart, but dumb and lazy: too lazy to create anything original themselves, and dumb enough to think they can get away with stealing indefinitely. They’re also stuck in the habit of thieving, encouraged by spurious and misleading advice on such nebulous concepts as “fair use”.
So instead of the logical outcome of Google’s changes – contact the photographer for permission or don’t use the image – the actual result is likely to be lots more legal action from photographers. And of course lots more squealing from thieves who get caught.
But that’s their problem. The first reaction of photographers who try SBI is generally fury at learning the previously unknown extent of the theft of their work. That’s hardly surprising, but really we should be pleased to see the tables being turned, albeit slowly.