Haitian photographer Daniel Morel can go on to sue AFP et al
US court says pic credits protected
A US COURT has ruled that Haitian photographer Daniel Morel can go on to sue Agence France Presse (AFP) and others, striking out a motion to dismiss the case. It dismissed an argument that pictures made available via Twitter are fair game.
Possibly more significantly in the long run, the Southern District Court of New York ruled that Morel can pursue a claim against AFP for removing his credit from his photos.
The story is tangled. AFP opened by suing Morel for claiming copyright in his own pictures, saying this was "commercial defamation" and "an antagonistic assertion of rights". Morel was then left counter-suing for abuse of his pictures; and AFP and co-defendants moved to strike out this counter-suit.
The judgement very clearly describes the sequence of events (leaving out references to paragraphs in Morel's counterclaim document):
Morel is a professional photographer who has worked in Haiti for over twenty-five years. [He] was in Port au Prince, Haiti, when an earthquake devastated the city. He photographed the immediate aftermath.
Although communications with Haiti were disrupted, Morel was able to access the internet that afternoon. Under the username "photomorel" he opened accounts on Twitter, a social networking site, and Twitpic, a third-party application of Twitter....
Morel uploaded his photos on Twitpic, posted on Twitter that he had "exclusive earthquake photos," and linked his Twitter page to his Twitpic page. There was no copyright notice on the images themselves, but Morel's Twitpic page included the attributions "Morel" and "by photomorel" next to the images...
A few minutes after Morel posted his photographs, Lisandro Suero, a resident of the Dominican Republic, copied the photographs, posted them on his Twitpic page, and tweeted that he had "exclusive photographs of the catastrophe for credit and copyright." Suero is not a photographer and was not in Haiti during the earthquake. Suero did not attribute the photographs to Morel...
That evening, numerous American and foreign news outlets emailed Morel and posted on Twitpic asking to purchase his photos for publication. Four CBS news representatives contacted Morel seeking to purchase his photographs and offering to credit him as author. In addition, five CNN representatives contacted Morel complimenting him on his photographs and requesting permission to air them.
Within an hour of Morel's posting, Vincent Amalvy, an AFP photo editor, placed a link on his Twitter page to Morel's photographs. An hour later, Amalvy posted on Suero's Twitter page inquiring about the photos Suero posted. At 9:41pm, Amalvy emailed Morel asking, "do you have pictures?" Minutes later and before Morel responded, AFP downloaded thirteen of Morel's photographs of the disaster in Haiti from Suero's Twitpic page...
AFP operates an online photo database called ImageForum, which it uses to market and distribute its photographs. AFP placed Morel's photographs on ImageForum and transmitted them to Getty, an image licensing company...
Morel alleges that in their rush to obtain credit for the photographs, ADP and Getty willfully or recklessly failed to follow standard journalistic practices or use due diligence to verity Suero's authorship and the photographs' authenticity. Morel alleges that although there was no reason to believe Suero was in Haiti to take the photographs, AFP trusted the images' authenticity because they knew Suero "stole" them from Morel, a well-known resident Haiti photographer.
Morel is represented exclusively by Corbis, a photography agency and direct competitor of Getty...
The Freelance can so far find only a blog posting by Jeremy Nicholl to confirm that AFP agreed to drop its "defamation" claim against Morel before this hearing.
In the 24 September hearing, AFP and co-defendants claimed that they had an express licence to use Morel's images, or, alternatively, that they were third-party beneficiaries of a license agreement between Morel and Twitter.
There have been suggestions that these terms and conditions have been changed since the earthquake. The Court recorded Twitter's as saying that:
you agree that this license included the Right for Twitter to make such Content available to other companies...
The transcript shows the Court - Judge William H Pauley III - giving very short shrift to the argument that this gave AFP a licence to sell Morel's pictures, and particularly the claim that Twitter's terms and conditions applied to works uploaded to Twitpic, and even more particularly the unfortunate argument that because a multitude of people, including Sueno, were re-Tweeting and copying others' work it was OK.
The court also ruled that Morel can proceed with his complaint that AFP removed the credits he had placed on his TwitPic page, contrary to Section 1202 of the Copyright Act, inserted by the "Digital Millennium Copyright Act" and rejected AFP's argument that this applies only to "copyright management information" embedded in an image or sound file (for example in "EXIF" data).
‘It was Bertrand Russell who said you
shouldn't follow the multitude into evil. Remember that?’
It rejected Morel's claim that AFP's use of Morel's pictures was "passing off" under the Lanham Act, on the grounds that the US Supreme Court had held that this should be used for trademark infringements, not copyright.
Eric Goldman, Associate Professor of Law at Santa Clara University, concludes:
This case is a clusterf**k. AFP made numerous mistakes that resulted in infringing photos being injected into the news coverage of a major world crisis, which inadvertently tainted a variety of downstream media properties - all of whom, due to copyright's strict liability standard, are likely to write checks to Morel. AFP and its unfortunate partners should end their likely-futile and sometimes-silly defense and settle up with Morel so that everyone can move on to more productive endeavors.
The Freelance is particularly pleased to see the technical term "clusterf**k" introduced into the legal lexicon.
Unless AFP and co-defendants take Goldman's advice, the issues will now be decided in a substantive hearing on a date yet to be announced.