This week’s release of the oral arguments in Daniel Morel vs Agence France Presse, Getty Images and others has provided a first insight into the thinking of the respective legal teams.
Morel’s case, presented by Barbara Hoffman, is of course pretty straightforward: you stole my property, now you have to pony up. The main opposition party, Agence France Presse, is represented by Joshua Kaufman, and their argument is inevitably more complex. Inevitably, most observers would say, because AFP haven’t a leg to stand on; therefore Kaufman has to transform what appears to be a straightforward case of theft into something more complex in an attempt to find a loophole for AFP to wriggle through.
Essentially Kaufman has opted for a smoke and mirrors operation, lifting a phrase from one Terms of Service here, a snippet from another ToS there, then attempting to cobble the various components into a coherent whole: it’s the law as practiced by Heath Robinson. Whether this strategy will work remains to be seen, but judging by some of Judge William H Pauley’s comments, His Honour was distinctly unimpressed by Kaufman’s tortuous logic.
There’s excellent background and analysis both at the British Journal of Photography and especially at Duckrabbit, who have highlighted the absurd logical conclusion of Kaufman’s argument: that unless metadata is embedded to state otherwise, AFP are entitled to help themselves to any image they find on the net.
But along with the common sense analysis came the Loony Toons brigade: self-appointed experts using their own imaginary authority to shore up the AFP case. At A Photo Editor one commentator, Leslie Burns, posted some nonsense attempting to justify AFP’s actions. When this was easily shot down by others Burns claimed superior knowledge on the basis that s/he is a law student. Nor an actual, real, grown-up, qualified, practicing lawyer, you understand, but a student.
However this week’s first prize for idiocy relating to the Morel case – the Visa D’Or Faux Pas if you like – unquestionably goes to John Harrington at his Photo Business News & Forum. In “Morel v. AFP, AFP v. Morel – Which Way Blows the Wind?” Harrington claimed that AFP were entitled to use Morel’s work, and tried to illustrate why. This was partly the same ground already foolishly trodden by JF Leroy and the NPPA, but Harrington took the attack on Morel a step further: rather than simply make vague comments about the dangers of social media he set out to prove in detail why AFP were entitled to behave as they did.
Harrington’s post earned him a fair amount of derision from readers, both at his own blog and elsewhere; one at Duckrabbit rather cruelly described him as “an obscure small-time PR photographer” with “no understanding of the challenges faced by Morel in the midst of a massive disaster”. However none of the readers noticed the howler at the heart of Harrington’s thesis: an error so fundamental that it both demolishes his argument and renders any other criticism moot.
To conclusively prove his case against Morel Harrington decided to play lawyer and use the Twitpic ToS to conclusively prove that AFP were entitled to help themselves to Morel’s work. Quoting the Twitpic ToS Harrington wrote:
From TwitPic’s TOS:
- By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites
- you retain all of your ownership rights in your Content. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service.
What part of that’s not clear? Photographer “A” delivers images to party ”B” (TwitPic and then Twitter) and in doing so, accepts terms expressly providing that party “B” has the right to sublicense his work to third party/ies “C”, then the photographer must abide by terms to which he/she agreed. As to Party “C” being Lisandro Suaero, who downloaded the images from TwitPic and reposted them on Twitter under his name (see FastCompany article here for this gem of information), nothing in TwitPic’s terms require photo credit, let alone, an accurate photo credit. Setting aside Suaero’s ethical breach for taking credit for someone elses’ work, AFP has obtained their rights from Twitter who legitimately got them from Twitpic who legimiately got them from Morel. AFP did the right thing, as they learned that Morel was in fact the photographer, and not Suaero, so they corrected the photo credit to attribute Morel. Morel is not some newbie, or someone unschooled in how to transmit photographs – he used to be an employee of the Associated Press as a photographer, so any claims of “I didn’t know…” will, for me, fall on deaf ears.
Yes John, here’s a question. Where are the first five words of those Twitpic ToS? You know, the ones in bold so they’re hard to miss. The ones that read “Date Modified: July 14th, 2010”.
Here’s another question: exactly what was the modification that was made on July 14th?
Don’t know? Time’s up: here’s the answer. The modification was the insertion into the Twitpic ToS of the exact clause that you quote and use as the basis for claiming that those ToS entitled AFP to syndicate Morel’s images. That clause does not exist in any earlier version of the Twitpic ToS, and most importantly, not at the time of the AFP theft of Morel’s images. Indeed, as AFP’s Kaufman noted in court, the Twitpic ToS at the time of the AFP/Morel incident make no mention whatsoever of third party use of material hosted on Twitpic: that is one of the elements at the very heart of the case.
Harrington presents himself as an expert on the business aspects of photography; indeed he has published a book on the subject. Such a person must surely be aware that a ToS clause published on July 14th can have no bearing on an incident that occurred some six months earlier, or a on a legal case filed shortly after that incident. In other words, Harrington’s entire argument is a nonsense, in the most literal sense without any foundation.
However Harrington’s article does raise two other embarrassing questions for him, for there are only two possible reasons for his blunder. Either Harrington didn’t bother to check the history of the Twitpic ToS, in which case he was lazy and careless to the point of incompetence; or he did check them, realised the history didn’t support his argument, and therefore ignored it; in which case he deliberately set out to mislead his readers.
So was Harrington fibbing? Or just plain dumb?
Any answers John?
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?
Relations between photo agencies and contributors can be a tricky matter, especially when it comes to royalty percentages. When the agency is a microstock distributor with a crowd-sourcing base it doesn’t take many false steps to turn that cuddly community into a howling mob. And when those steps come from a Chief Operating Officer whose PR skills elicit comparisons with Tony Hayward and Gerald Ratner the results can be, well, explosive.
On September 7th iStockphoto COO Kelly Thompson lit the fuse to an impressive firestorm with his announcement on the agency’s forums titled “Important!: Royalty Changes and iStock Collections”. To the uninitiated iStock’s payment structure can appear confusing, to put it mildly, and Thompson’s announcement lacked clarity. But the iStockers themselves had no doubt: this was a pay cut, and a savage one, wrapped in vague and soothing language. Under the new rules contributor royalties would be as low as 15%.
After a few minutes bemusement the red mist descended and the brickbats started to fly. As the crowd swelled and searched for a target they settled on the obvious ones: Getty Images, who bought iStock in 2006, and Hellman & Friedman, the private equity firm that in turn acquired Getty in 2008. Although many iStockers had welcomed the 2006 deal with whoops and the belief that they were now headed for the big-time, the union has not always been entirely happy. Presented with a pay cut it was easy for the iStockers to conclude this was all the doing of Getty and the bankers: their community had been corrupted by the corporates.
As the fury grew the COO and iStock admins tried to field increasingly angry posts, but were soon forced to retreat; Thompson himself disappeared from view shortly after warning against personal attacks and “intonations of violence”. 132 pages and 2,633 largely abusive replies later the thread was locked and Thompson was back for a second attempt. This time he was better prepared, with performance facts and figures to support the reasoning behind the changes.
But word was out and the mob was waiting with pitchforks sharpened. They immediately seized on his statement that the changes were not Getty-inspired to mean this was a home-grown betrayal rather than one imposed from outside. In the eyes of many Thompson was instantly elevated from fall guy forced to do Getty’s dirty work to Public Enemy No. 1.
And his central justification – that the company’s business model was unsustainable – led to much analysis of company income and expenditure versus royalty payments, followed by speculation as to the veracity of previous claims of success in relation to the new claim of unsustainability:
iStock to contributors, 01/04/2008:
“That our revenue and payouts have eclipsed those of many traditional stock photography companies confirms that microstock is a viable and profitable business model for contributors and clients.”
iStock to contributors, 08/09/2010:
“Since roughly 2005 we’ve been aware of a basic problem with how our business works. As the company grows, the overall percentage we pay out to contributing artists increases. As a business model, it’s simply unsustainable.”
For those watching from a safe distance it was Thompson’s claim of unsustainability that was by far the most interesting. Ever since microstock’s appearance the prime charge laid by traditional stock photographers has been that the business model is unsustainable. Unsurprisingly their stress has been on its unsustainability for the photographer accepting a low royalty percentage on a product with a tiny price.
But Thompson was saying much more than that: he was claiming that the current microstock model is unsustainable for the distributor, not just the contributor. If true – iStock’s contributors have been vociferously contesting it – there are obvious implications for iStock’s rivals, all of whom pay higher contributor royalties.
Versions of the recent history of the stock photo industry depend very much on who’s speaking. Ask a microstock contributor and you hear a tale of David vs Goliath, and how microstock pioneers swept aside an elite and greedy stock establishment. For professionals, on the other hand, it’s largely a story of amateurs enabled by digital technology producing inferior imagery, and wrecking the market by selling at giveaway prices. In fact one pro photographer ventured into the iStock fray to make that very point:
“All of you have been so happy to undercut traditional stock photography, copying the best selling images, shooting every hamburger you ever ate, and now that the traditional photographers (often derided as ‘trads’ by you) have come in to beat you at your own game, you’re shocked- yes, shocked!- to find out that this is a business, not a little happy family giving each other muffins and logrolling in the forums. Well, welcome to the real world- the one that you made for yourselves. 145 pages of whining and wanting things to go back to the way they were- it’s so pitiful. Face it. You aren’t going anywhere. You are going to stay here, and do what the man says. You are getting the bed you made yourselves, so go lie in it. Or go back to what you do best- arguing over the color of your little ribbons.”
That thread roared on for a further 167 pages & 3,336 posts before being locked, with iStock’s leaders largely conspicuous by their absence, despite numerous requests for Thompson to step outside and engage with his public.
On Friday the beleaguered COO emerged for his third attempt in as many days, but with a very different tack. “Where Do We Go From Here?” was not so much forum post as soliloquy, as he reminisced on 6 years at iStock, mused on the agonies of leadership, and – without a hint of irony – reminded the audience that it’s really not all about the money.
This last was a chronic misjudgment: the iStockers were looking for negotiations, not a lecture on moral values. If anything the response was even more bitter than before: one member pointed out that the money he made from iStock was intended for his wife’s breast cancer treatment.
For all the pyrotechnics at the iStock forums it’s questionable how many contributors will actually leave. It’s in the nature of these things that most of the noise is coming from a minority of contributors; it’s impossible to know if the rest are simply resigned to the new deal, or are quietly occupied deleting their files. Indeed many may not even know of the change in royalties. Reportedly iStock did not mail the information to contributors, but simply posted the news on the agency forums; so only those active on the forums would be aware of the issue. Anyhow, if Thompson’s analysis is correct iStock’s microstock rivals will also have to adjust their royalties downward at some point.
Nonetheless some contributors have already been approached by rival microstock outfits, and at least one non-microstock agency has made a very public intervention. As the iStock row took hold Alamy posted gloatingly on twitter: “Oh dear, lots of unhappy istock #togs today – don’t worry, earn 60% with Alamy, the fastest site in the industry”.
Whether that was a smart move by Alamy remains to be seen. For one thing Alamy’s current contributors are unlikely to welcome a sudden influx of iStock refugees. For another the agency has in the past abruptly changed terms and royalty percentages in a manner not dissimilar to iStock. And Alamy has also had problems with forum firefights, although never on such a spectacular scale as iStock.
But the last word – several million of them – belongs to the iStockers. Here’s some of that community spirit in action, with a taste of the back and forth between Thompson and his contributors:
“We know change is never easy and comes with challenges”
“I really hope someone will burn in hell because of this.”
“This is not ‘like robbery’. This is robbery.”
“What kind of crackhead business model are we riding on here? We are getting raped.”
“Rotten news all couched in happy, shiny language. Like getting a beautifully-wrapped turd for Christmas.”
“Hey, where’s my kiss? I didn’t get a kiss. Did anyone get a kiss? I usually get kissed before I get f…..”
“We knew when we made yesterday’s announcements that there would be a lot of feedback.”
“I think you would have been better off saying nothing.”
“What drugs do you use?”
“HOW MUCH FRIGGIN PROFIT DO YOU NEED MAN? If you cant operate on a model such as this you’re just a failure and a failed company. We all know that this company is a fucking cash hog. Getty would not have bought you if you weren’t.”
“You can’t survive on 60-80% of the profits from a product that you have 0% ownership in? Sad. Pathetic.”
“So I guess all those glowing announcements about how great iStock was doing and how much profit it was making year after year was all lies.”
“Money isn’t going to be what makes you all happy.”
“So THAT is your response to this mess?? Wow, thank fuck you’re not my boss!”
“Oh, for fucks sake … leave out the pathetic, for-the-camera, misty-eyed rhetoric will you? It isn’t going to wash this time.”
“Don’t pee on my leg and tell me it’s raining.”
“Pardon me while I vomit.”
“Cry me a fucking river Kelly. You’re all a bunch of spineless fuckwits and you’ll get what you deserve.”
Leroy was expanding on his previous defence of Agence France Presse in their court case versus photographer Daniel Morel, who is suing the agency for distributing his work without permission. Previously Leroy had criticised Morel for initially placing his Haiti images on TwitPic, but in his new comments he goes further, suggesting photographers completely avoid all such social media sites:
“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. You can’t ask me to defend you. What I’d like is for all photographers reading this is that they stop putting images on such sites.”
At first there appears some logic to Leroy’s position, but that rapidly disappears on even a cursory inspection. If social media sites were really places where any visitor was welcome to plunder whatever they found photographers would indeed be best advised to stay clear. But that simply is not the case. Most social media sites – including those mentioned by Leroy – have terms designed to prevent the third party use of contributors’ material. One could argue that the terms are not well enforced, but that’s very different from claiming the terms don’t exist, or that they mean the opposite of what they clearly state.
Leroy’s rationale – that a certain group of people should avoid particular places because something bad might happen to them if they venture there – turns the world upside down and shifts blame for the crime from the perpetrator to the victim. In 2010 in the real world outside the web few would dare come out with such nonsense. Don’t agree? Then try this on for size:
“Any girl who goes to these clubs, and then gets assaulted, well too bad for her… a girl should never go to a nightclub. If you go to one and get raped, well… tough. You can’t ask me to defend you. What I’d like is for all women reading this is that they stop going to such places.”
Leroy’s position is not just perverse and offensive: it’s also baffling because it runs directly counter to the stated philosophy of the festival of which he is a director. For years Visa has taken pride in exhibiting images that haven’t been published in the mass media; a perennial criticism has been that the festival shows too many images, to which Leroy replies he has a duty to show stories that would otherwise remain unseen. But if he genuinely wants stories to gain the widest possible audience Leroy should support photographers’ use of social media. Sure, a Flickr stream may not have the cachet of an evening show or exhibition at Perpignan, but if it’s pure eyeballs a photographer is after, the web and social media will trump Visa every time.
The reality of this squabble – which Leroy doesn’t admit, but may well suspect – is that social media sites are a far bigger threat to image distributors than they are to image creators. For if freelance news photographers use social media to distribute material to publishers they no longer have any need for organisations like AFP. Now there’s a thought.
The web is all a-twitter over comments made by Visa Pour L’Image’s Jean-Francois Leroy concerning the copyright infringement case between Daniel Morel and Agence France Presse, Getty Images and others. Speaking to Olivier Laurent in the British Journal of Photography, Leroy stated that he “couldn’t defend” Morel and “it’s not easy to say that Agence France Presse messed up.” His comments have not been well received in the photojournalism community.
Leroy’s first comment is easy to dismiss. He’s unlikely to be called as an expert witness to the New York court hearing the case, so for all practical purposes who if anyone he chooses to support is of no consequence. His second claim however – that AFP “didn’t mess up” – is far more dangerous. Leroy attempted to support this by saying “You don’t put images you think are worth $10,000 on Twitter. If I’m the witness of such a tragic event as this earthquake, I call an agency or Getty or Corbis.”
Really? Leroy’s assertion that the pictures would have been better placed with an agency likely rests on three assumptions. Firstly, that an agent would get better prices for the pictures; secondly, that the pictures would be more secure if hosted at an agency site; and thirdly, that if any pictures were stolen the agency would have better resources than an individual photographer to prosecute infringers.
The second assumption, that of security, seems based on ignorance: no image placed on the internet is secure. Not one. Ever. The best an agency site can offer is a password wall for high resolution images, watermarking on the publicly viewable low resolution versions, backed up with a copyright warning to deter would be thieves. But would-be thieves don’t care about the warning and watermarks are trivially easy to remove. And once the pictures leave the agency site, legally or otherwise, all that security is gone. So any agency site security is at best flawed and inevitably temporary.
What about Leroy’s third assumption, that a major agent is better placed than an individual photographer to pursue copyright infringements? Since 2007 Getty have been pursuing businesses in the UK for multiple cases of copyright infringement. Ironically the infringers being chased by Getty complain that the agency is being unreasonable and heavy-handed: terms like “bullying” and “threatening” echo AFP’s complaint of Morel’s “antagonistic assertion of rights.” And inevitably the defence the infringers present against Getty is in many cases exactly that which AFP/Getty present against Morel: “the pictures are on the internet so we thought they were free.”
But the interesting thing is that in three years the best Getty’s legal department has managed is a total of £26,000 from one business in an out of court settlement; and the majority of that was legal fees. Should Morel succeed in his case against AFP and Getty he is likely to be awarded damages far in excess of that. So in this instance, who’s doing better at pursuing infringements?
Leroy would surely agree that a prime function of a news photojournalist is to get the pictures out as quickly as possible. Morel did that, and, incidentally, from an earthquake that was still in progress. So if, as a senior BBC correspondent recently stated, Twitter is just another news outlet, shouldn’t photojournalists working on a breaking story be able to use that outlet without fear of their work being stolen?