AFP Sues Photographer Whose Photographs It Used Without Permission

from the this-gets-confusing-fast dept

Wed, Apr 28th 2010 9:54am — Mike Masnick

David Sanger points us to a case that is so full of confusion and ridiculousness that it's difficult to know who to support. It appears that both parties are greatly confused about the law, terms of service and what each other did. It involves news giant AFP and a photojournalist, Daniel Morel, who was in Haiti at the time of the earthquake, and took some photos right after it happened. That's when things get mixed up. In an effort to get the photos out to the world, the daughter of a friend helped him upload the images to Twitpic, and then announce them via Twitter. From there a different photographer, Lisandro Suero, based in the Dominican Republic, apparently copied those images to his own account on TwitPic and tweeted that the images were available for licensing. The AFP then used those photos, uploaded them to Getty for distribution, and credited Suero. The photos then started appearing in a variety of places credited to AFP/Getty/Suero. Morel gets upset and sends a legal nastygram to the AFP... and after some back and forth the AFP sues Morel (yes, the AFP sued Morel after using his photos without credit) asking for summary judgment that it did not infringe on his copyrights and saying that Morel's claims that his work was infringed upon were "commercial defamation."

You can read the (relatively short) complaint here:

And you can read Morel's much longer response here (which, by the way, includes the photographs in question):

Where to start on the mess here? First, let's start with AFP. This is the same organization that once sued Google for merely linking to AFP stories with the AFP's headline in Google News. So for the AFP to pretend it's on the moral high road here for blatantly using a photo without licensing it is pretty damn hypocritical, even if you believe it had the right to do so. Given its own actions on copyright issues, the AFP seems to think that any use is infringing.

Second, as Dan Kennedy points out, the AFP's defense appears to be based on a bizarre reading of the Twitter terms of service. Those terms of service read:

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

AFP uses this in its filing, noting:

When Mr. Morel posted his photographs on Twitter, he made no notation that he was in any way limiting the license granted to Twitter or third parties or that he was in any way limiting the ability of Twitter and third parties to use, distribute, or republish his photographs. Thus, a third party would reasonably assume that based on the Twitter Terms of Service and typical use, by posting his photographs on Twitter, Mr. Morel was granting the requisite license to Twitter and third parties to use, copy, publish, display and distribute those photographs.

There are two very big problems with this line of argument (though, oddly, Mr. Morel doesn't seem to point out either problem in his response). Problem #1: The photos were posted to TwitPic, not Twitter. While many people don't seem to realize this, TwitPic is not a part of Twitter, but is a separate company. Thus, Twitter's licensing terms are somewhat irrelevant. Problem #2: Twitter's terms of service are between Twitter and the user, not for a third party. Reading the terms in question should be familiar to anyone who's set up any online user-generated content service. They're boilerplate terms that mean the service in question has the right to post the content that the user submitted. Not some third party. Note that the terms clearly say "you grant us a worldwide..." That "us" is Twitter. Not the AFP. For the AFP to claim otherwise is really bizarre.

Of course, this doesn't absolve Morel, either. First, once his lawyers contacted the AFP, the AFP did seek to stop distribution of the image. Yes, this was late in the process, but if it's true that AFP was really confused and thought it had the proper license, it did appear to act to rectify the situation as soon as it was notified. Morel's claims that AFP must have just known that he was the originating photographer seem questionable. On top of that, he immediately jumps to demanding a huge fee from AFP, even though he admits that the reason he uploaded the images was to help them get widely seen. As he said, he posted them online "in the hopes that his images would span the globe to inform the world of the disaster." He also claimed he posted them there so that he would "receive compensation and credit as a professional photographer," but just because you post images hoping to "receive compensation," it doesn't mean you're automatically entitled to compensation.

Even worse, while I don't think Twitter's terms of service matter at all here (see two paragraphs up), Morel's response to that issue doesn't help his case at all. He claims that Twitter's terms of service shouldn't apply because he didn't read them:

Mr. Morel had no prior experience with Twitter, the social networking site and did not read the Terms of Service.

While I don't think Twitter's terms of service apply for all the reasons above, his failure to read the terms hardly is the best reasoning in his defense.

If he should be upset with anyone, it sure looks like his real complaint should be with Lisandro Suero, who copied the images, claimed the work as his own, and offered them up to news agencies. Morel's complaint blames AFP for not taking the time to do the "due diligence" to make sure Suero actually took the photos:

What steps did AFP take to verify Suero's identity? From where were the images sent? Did they call Suero and ask him where he was when the images were taken? Did they contact other AFP resident photographers in Haiti or the Dominican Republic to inquire whether anybody had ever heard of Lisandro Suero?

Yet, this is coming from the same guy who just pages before admits he didn't bother reading the terms of service for the website on which he was uploading photos -- and many months later still doesn't realize that he uploaded them to a totally different service, called TwitPic, rather than Twitter? Complaining that the AFP failed in its due diligence seems a bit strange, considering the lack of due diligence on his own part.

In the end, this is a lot of arguing over nothing. Both parties seem to have screwed up in their actions. Morel admits he wanted the world to see his photos and various news agencies helped in that regards, and have helped boost his reputation as a photojournalist. It appears there are lots of ways that he could cash in on that recognition. Meanwhile, the AFP clearly mislabled the images and appears to be blatantly misreading the terms of service on a different site than the photos were uploaded to.

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Filed Under: afp, photography

28 Comments

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samsara (profile), 28 Apr 2010 @ 10:29am

Well, that's disappointing.
Never would have pegged Amanda F'n Palmer as the litigious type.
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Anonymous Coward, 28 Apr 2010 @ 10:31am

Always hilariously interesting to see where belief in the fiction of "intellectual property" leads.
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Anonymous Coward, 28 Apr 2010 @ 10:51am

Re:
All property rights are fictious in the sense that they're artificial constructs that we use in order to have a functioning society. That's not really a good argument against intellectual property.
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Anonymous Coward, 28 Apr 2010 @ 11:01am

Re: Re:
Before it was called intellectual property it was called intellectual privilege.
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william (profile), 28 Apr 2010 @ 11:02am

hmmm... this two way (three way?) collision is making my head hurt. I have an urge to laugh at both parties.

However, it's just curios to see that Suero is not involved or mentioned much at all. If anything, Morel should be sueing Suero for taking his photos and AFP should be suing Suero for paddling goods that doesn't belong to him.

Why is Suero left out? It's very, very strange to me.
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Michial Thompson, 28 Apr 2010 @ 11:21am

Hmmmm
Seems like the correct lawsuit would be against both AFP and Suero actually.

AFP used the photos without permission of their rightful owner. The defense of we licensed them from "someone" is pretty vague, and really just shows that they didn't do their due diligence in researching the photos before using them.

Then you also have a much more serious lawsuit against Suero, in fact AFP should also be suing as well.
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peter, 28 Apr 2010 @ 11:33am

Para 5. .....Denies the allegations of ¶5, except admits Mr. Morel posted photographs
on Twitter....

Seems that Mr Morel's own Lawyer does not know the difference between Twitter and TwitPic either.
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Whisk33, 28 Apr 2010 @ 11:41am

Re:
Since he wasn't the one who uploaded them, he probably is not familiar with either. It should come as little surprise that he doesn't know the difference. Though it would probably benefit him greatly if someone informed him and his lawyer of that fact.
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Joe NYC, 28 Apr 2010 @ 11:44am

Twitpic TOS
The Twitpic TOS says:

"Copyright

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"

Of course, once they're distributed through twitter the twitter TOS come into play.

Frankly, I think they're all TWITS!
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max, 28 Apr 2010 @ 12:05pm

One word for Mr Morel
watermark
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Dark Helmet (profile), 28 Apr 2010 @ 2:56pm

Here's the real question...
How long before Twitter sues TwitPic for trademark infringement? Morons in a hurry be damned, that usage confused a photographer in a hurry, an entire major news organization in a hurry, and the entire judicial system in a hurry....
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nasch (profile), 28 Apr 2010 @ 3:09pm

Re: Re:
The point is that intellectual "property" isn't property at all, and believing that it is causes all kinds of problems.
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Pessimistic Optimist, 28 Apr 2010 @ 9:23pm

Re: One word for Mr Morel
Another good word: EXIF

Most cameras these days allow you to add personal information (in addition to shutter speed, f/stop, lens, etc) to each and every photo you take. Embedded EXIF data is just one means. Companies like Adobe and Canon tend to also use their own proprietary data formats for this type of info in addition to EXIF. Hopefully Morel didn't overlook this important part of his camera's setup. If the original shots are in his cameras RAW format and only he has access to them, providing these should be admissible as proof of ownership as well.
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Roger Howell, 28 Apr 2010 @ 9:39pm

Question for Mike
Hey Mike, interesting story! Have you ever considered a career change? You definitely have a gift when it comes to analyzing a given situation logically and without letting emotional bias interfere. That is very hard to do for most folks. Combined with the fact that you seem to be both honest and fair, I think you would have made a great Judge. ;-)
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Michael, 29 Apr 2010 @ 6:59am

Re:
He is not the one with deep pockets.
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Michael, 29 Apr 2010 @ 7:04am

Re: Twitpic TOS
The picture itself is not sent through twitter. Links and embeds are more like sending a headline, not the content. I don't think the TOS in Twitter could really have any impact on the images themselves but I guess a technically-challenged judge could disagree.
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David Sanger (profile), 29 Apr 2010 @ 9:38pm

more from BJP
British Journal of Photography has even more extensive coverage of this unfortunate situation at

http://www.1854.eu/2010/04/agence_france_presses_slap_to.html
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joely, 26 Aug 2010 @ 2:54pm

Eric Goldman shitty shyster Eric Goldman shitty shyster Eric Goldman shitty shyster Eric Goldman shitty shyster Eric Goldman shitty shyster Eric Goldman mental case Eric Goldman mental case Eric Goldman mental case Eric Goldman mental case Eric Goldman asshole Eric Goldman asshole Eric Goldman asshole Eric Goldman asshole Eric Goldman asshole Eric Goldman closet gay Eric Goldman closet gay Eric Goldman closet gay Eric Goldman closet gay Eric Goldman closet gay Eric Goldman closet gay
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ericg, 16 Sep 2010 @ 12:31pm

Oh, shoot your shit up my ass one more time, Mikey Masnick! You know how I love it! My name ain't pussy boy Eric Goldman for nothing. I just love being your female slave since I am such a masochistic slut!
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nasch (profile), 16 Sep 2010 @ 2:03pm

Re:
Oh, shoot your shit up my ass one more time, Mikey Masnick!

Why, do you have colitis?

http://en.wikipedia.org/wiki/Fecal_bacteriotherapy
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out_of_the_blue, 16 Nov 2010 @ 4:42pm

@ nasch: Interesting that you comb through old items.
Sheerly to defend Mike.

After 5 months, you were on to this after 94 minutes.

Things that make you go: HMM.
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nasch (profile), 16 Nov 2010 @ 5:30pm

Re: @ nasch: Interesting that you comb through old items.
If you sign up for a profile, you get a little check box when you comment that says "email me when there are new comments on this thread". It's the only reason I follow Techdirt discussions at all after I read them.

HMM.
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nasch (profile), 16 Nov 2010 @ 5:30pm

Re: @ nasch: Interesting that you comb through old items.
And the only reason I was aware of your comment.
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Ryan Diederich, 17 Nov 2010 @ 3:17am

There is no such thing...
as intellectual property. Just because you came up with it, doesnt make it yours (nylon, anyone?). Point is, intellectual property is the silly label given to things such as patent and copyright, which arent "intellectual property" and more of a monopoly protection.

I have great ideas in my head, and I know that I cant design/build/publish these ideas until I can start to patent them. This is neccessary because I dont have money.

Copyright and Patents are definitly an important part of economic and capitalistic lifestyle, they simply shouldnt be abused...
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out_of_the_blue, 17 Nov 2010 @ 8:04am

Re: Re: @ nasch: Interesting that you comb through old items.
Yes, I knew that. Just curious whether you'd react to a dig. 48 minutes, quite prompt.
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nasch (profile), 18 Nov 2010 @ 7:42am

Re: Re: Re: @ nasch: Interesting that you comb through old items.
Sorry this one took me so long. ;-)
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Phyllis Galembo, 14 Oct 2013 @ 4:31am

Daniel Morel heads to trial NYC Nov.12,2013
Haitian Photographer Daniel Morel Heads to Trial in New York Federal Court Against Media Giants AFP and Getty Images.

New York, New York, October 14, 2013. The trial of Daniel Morel vs. Agence France Presse and Getty Images is set to begin with jury selection on November 12, 2013 at the Thurgood Marshall US Court House, 60 Centre St., Manhattan before Federal District Court Judge Alison Nathan.
Daniel Morel, the well-known photojournalist, took dramatic, award-winning photographs in Haiti during the first moments following the January 12, 2010 earthquake that devastated his native country. An AFP editor took many of the photographs off the internet and distributed them through AFP�s �feed� and through Getty Images� electronic distribution network and website. The photographs were ascribed to �Lisandro Suero,� who was in the Dominican Republic at the time of the earthquake, and credited to �AFP/Getty Images.� As a result, Mr. Morel�s misattributed images were sold to AFP and Getty Images customers around the world, frequently appearing on the front pages and websites of major newspapers and other publications.
On January 14, 2013, Judge Nathan found that AFP and Getty Images violated the US Copyright Act and infringed Mr. Morel�s copyright when they took Mr. Morel�s photographs off the internet, misidentified them, added their own names to the credit lines, and licensed them to their world-wide clients -- all without getting Mr. Morel�s permission. The jury in the upcoming trial will decide whether AFP and Getty Images acted �willfully� in their misuse of Mr. Morel�s photographs and in their mistreatment of him in the months following their infringements. The jury will also set the damages that AFP and Getty Images will have to pay Mr. Morel for their persistent misconduct.
The legal battle started in unusual fashion in 2010. After Mr. Morel complained to AFP, Getty Images, and their customers that the media companies had licensed the photographs without his permission, AFP sued Mr. Morel for �commercial disparagement,� sought to strip him of any copyright protection in his photographs, and requested compensatory and punitive damages against the photojournalist. Judge Nathan dismissed the claim that Mr. Morel forfeited his copyright in the photographs by posting them on Twitter. In a landmark ruling, Judge Nathan held that �Twitter�s terms of service did not give the news agency a license to publish the images without Morel�s permission.�
The trial, which is expected to last a week, is open to the public.

Mr. Morel is represented by Joseph T. Baio (jbaio@willkie.com) and Emma J. James (ejames@willkie.com) of Willkie Farr & Gallagher LLP.
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Cdaragorn (profile), 21 Jul 2018 @ 9:18am

Re: Re:
Except that you've fallen for the fallacy that intellectual property laws deal with property rights.
"Intellectual property" has nothing to do with property. Putting it into the name doesn't magically make it so. It's literally only saying that no one else can do the exact same thing that you did. Which is also why it is in fact contrary to a functioning society. Thus making it a great argument against intellectual property.
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