Who Gets The Copyright On The Photo Of A Beaten Gaddafi, Captured Off A Cameraphone

from the copyfraud? dept

Fri, Oct 21st 2011 11:14am — Mike Masnick

The AFP news agency (with its partner Getty) has a bit of a history with some rather odd copyright claims. You may recall the lawsuit that AFP was involved in after it yanked photos from Twitpic of the devastation after the Haiti earthquake without permission, credited the wrong photographer and uploaded them to Getty. Amazingly, once the real photographer called out AFP for this, AFP sued the photographer... and lost big time.

You might think this would lead AFP and Getty to be a bit more careful in how they attribute photographs and claim copyright over them... especially on breaking news stories. And yet... you might have heard how ex-Libyan dictator Gaddafi was caught and killed yesterday. You also might have heard that his capture and beating were captured on video by some of the rebel soldiers who helped capture and kill him. Now, the pictures and video can be pretty graphic, so don't click on the following link if you're a bit squeamish. It's a link to a Getty Images page of a screen capture of the mobile phone video. In the info, however, the cameraphone operator is not named.

If you can't see that, it's the metadata beneath the photo, which notes that it's a video grab from a mobile phone of a National Transitional Council (NTC) fighter... but then says that the credit, if anyone uses the image, should go to: "AFP PHOTO/PHILIPPE DESMAZES (Photo credit should read PHILIPPE DESMAZES/AFP/Getty Images)."

Now, to be fair, according to the AFP, Desmazes was, in fact, on the scene, and took a photo of the cameraphone screen to get the shot:

"I was covering the fall of Sirte and heard gunfire a little further west of where I was. The rebels explained to us that Kadhafi�s men had tried to break out at night a little further west. There had been fighting but this sounded more like celebrations than fighting," said Desmazes. "So I asked the fighters to take me there. When I got there, they showed me big concrete cylinders in which they said Kadhafi had been hiding when he was captured. A little further on, I noticed some fighters gathered around a phone. I was lucky because I was the only one to notice them. The owner of the phone showed me the arrest of Kadhafi which he had filmed a few minutes earlier. Given the ambient light, it was very difficult to take a screen grab. The fighters gathered round and gave me enough shadow to take the shot. I was really lucky," he said.

So it's not as if he's just claiming credit for something he had nothing to do with, but it still seems a bit questionable that Desmazes/AFP/Getty have any real claim here. It would seem like this is a very derivative work from the original, without much creative input that would give a copyright to Desmazes. At the very least, it seems like they should give credit to the guy who shot the actual video. Obviously, it took some effort for Desmazes to get his shot of the cameraphone screen (and I must admit, the quality of the image is surprisingly sharp if it's a camera shot of a smartphone screen), but is that enough to get a separate copyright?

And if we take this thought process to the logical conclusion, since Desmazes/AFP get to claim a copyright for taking a photo of a cameraphone screen, if I take a photo of my computer screen showing that same photo, and crop it appropriately, now I could claim to be the copyright holder on the same image? That seems like quite a slippery slope.

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Filed Under: copyright, gaddafi, philippe desmazes, screenshots
Companies: afp, getty

40 Comments

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John Doe, 21 Oct 2011 @ 11:24am

I thought a picture of a picture doesn't get copyright?
I was under the understanding that taking a picture of a picture doesn't qualify for copyright? But these days, copyright goes to whoever claims it and has the deepest pockets. That ain't me.
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Anonymous Coward, 21 Oct 2011 @ 11:25am

Mike you work so hard to make simple things appear complicated.

The AFP photographer owns the rights to his image, that of the camera phone and it's image. The "freedom fighter" owns the copyright on the original image.

For the moment, nobody seems to own the rights, because the work hasn't been registered:

http://www.mondaq.com/article.asp?articleid=8111

So I think you are making a mountain out of a molehill on this one.
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John Doe, 21 Oct 2011 @ 11:31am

Re:
IP law created the mountain, not Mike.
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Anonymous Coward, 21 Oct 2011 @ 11:33am

I think the sadder part of this story is that someone is profiting from the torture and death of a fellow man. Gaddafi may have been a lot of things, but he deserves at least a little dignity in death.
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MrWilson, 21 Oct 2011 @ 11:34am

Re:
"The AFP photographer owns the rights to his image..."

"For the moment, nobody seems to own the rights..."

So the photographer owns the rights but nobody owns the rights. Got it. That makes perfect sense.
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Anonymous Coward, 21 Oct 2011 @ 12:01pm

Re:
It's even simpler than you describe it.

While true, the photog "owns the rights to his image," the point is that those "rights" hardly mean squat in this instance. The "rights" he has are those that are bestowed by the copyright law, and here, since it's just a picture of a picture, copyright law doesn't give him any rights. Sure he can slap his name on it and have people pay him for using "his image," but that's neither here nor there when it comes to understanding what rights he really has.

It is indeed very simple: just because one creates does not mean one owns.
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Anonymous Coward, 21 Oct 2011 @ 12:02pm

Pirate Mike ... I mean ... SHEESH!!!! It must be Friday again because you're over here posting another non-story. Why can't you just admit that you lost?
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The eejit (profile), 21 Oct 2011 @ 12:03pm

Re:
And what about those who fought for their fellow man's freedom? Dignity never even came into it for them. Whilst the loss of life is always a loss for humanity (regardless of the heinousnessw of the crimes committed), I will not weep for his death.
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Anonymous Coward, 21 Oct 2011 @ 12:06pm

Re: Re:
Ahh, you are THAT confident in Libyan copyright law... nice!

The photographer (AP) owns the rights to his own image, because he is claiming those rights outside of Libya. Inside Libya, it appears nobody owns the rights unless they take a registration action.

Got it. Makes perfect sense. There is nothing here for Mike to get excited about.
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kyle, 21 Oct 2011 @ 12:08pm

So by this logic if i take the picture of my monitor with the picture on it, i've got the rights to it...
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DCX2, 21 Oct 2011 @ 12:10pm

Re:
It's easy to say a dictator like Gaddafi deserves dignity when it wasn't your friends and family who were murdered by his regime.
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hothmonster, 21 Oct 2011 @ 12:10pm

Re: Re: Re:
Sweet I got this book of famous photographs on my ipad now I can just take pictures of the images and sell them as my own. In fact I may just take photos of all the images on Getty and set up my own website. Anyone need some stock photos? Go to www.ytteg.com.
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Anonymous Coward, 21 Oct 2011 @ 12:10pm

Re: Re: Re:
Actually, that makes no sense whatsoever.
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Matt (profile), 21 Oct 2011 @ 12:11pm

Re:
Copyright inheres immediately in Bern Convention countries and the U.S., regardless of registration. At least if he had been in the U.S., the cameraphone operator would own the copyright to the image (and video) he took. The AFP copyright would cover only the creative, separately copyrightable elements in the derivative work - the photograph of the screenshot. If Mike went back to the same smartphone and took a photograph of its screen, he would not infringe the AFP copyright.

But... what if someone were to edit the image without touching any of the creative elements AFP introduced? That would not infringe AFP's copyright.
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Chosen Reject (profile), 21 Oct 2011 @ 12:13pm

Re:
I don't even want to know who all is involved in the copyright ownership of this.
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Andy J (profile), 21 Oct 2011 @ 12:14pm

Anon @ 11.25. Since any dispute over infringement is most likely to occur outside Libya, the importanty fact is that Libya is a signatory of the Berne Convention. Berne stipulates that there is to be no mandatory registration of copyright (one of the reasons the US did not join until March 1989), and in any case the 1968 Libyan Copyright law says that although copies of a work have to be lodged with the Ministry of Information and Culture (and there is a penalty for not doing this) "Non-depositing shall not result in prejudicing the copyrights stipulated by this law. These provisions do not apply to works of art published in newspapers and periodicals, unless they were published separately."*
Therefore the statement that "nobody owns the right because the work hasn't been registered" is untrue.

*Translation/source: the Libyan govt "Copyright Protection Law, published in the Official Gazette, Issue No. 10 of 30/3/1968." wikipedia article on the Copyright Law of Libya
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TOG, 21 Oct 2011 @ 12:15pm

And if that's a derivative work...
they why the hell wasn't Fairey's O poster a derivative work?

Wow! Hypocricy known no bounds.
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Chris Brand, 21 Oct 2011 @ 12:15pm

so...
If I go to a movie theatre and record the movie, I get copyright on that copy ? Or would that only apply to stills ?
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Anonymous Coward, 21 Oct 2011 @ 12:17pm

Re: Re:
I believe the point here is that we are better than him. Give him the dignity afforded to any human and rise above how he treated others.

I will not weep for this man. His actions were atrocious. He was a monster, barely worthy of the name 'human'. However, stooping to his level chips away at your humanity. It's like being an asshole to someone because they're an asshole to you. That doesn't stop people from being an asshole, it feeds them.
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Chosen Reject (profile), 21 Oct 2011 @ 12:23pm

Re:
What you say might very well be true. But let's not miss the forest for the trees here, and remember that this picture is of a dead Gaddafi after he was overthrown. Libya the territory still exists, but Libya the government could be said to be in a bit of a transition at the time of the photo, so what laws/agreements/etc are in effect is a bit in question right now.
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William, 21 Oct 2011 @ 12:45pm

Re:
Actually, no he doesn't. He stole a copy of a copyrighted photo. SO if we ignore Libyan law, no one matters, but if we follow say, US law, it's illegal. You can't just pick and choose your laws.
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Anonymous Coward, 21 Oct 2011 @ 12:46pm

Re:
Why, again, is it so important to you?
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Anonymous Coward, 21 Oct 2011 @ 1:11pm

Re: Re: Re: Re:
A+ for not getting it.
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Jesse (profile), 21 Oct 2011 @ 1:17pm

Re:
Aww so all I need to do to use a Getty image without permission is take a picture of it with my own camera.

Thanks for simplifying things, AC.
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Anonymous Coward, 21 Oct 2011 @ 1:22pm

Getty is a multi-million dollar company filled with lawyers.

the rebel lives in the desert, he owns sand.

It's obvious who owns the rights here.
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hothmonster, 21 Oct 2011 @ 1:28pm

Re: Re: Re: Re: Re:
Oh thats not right? I can only do that if the original picture is from a poor person in another country who could never sue me. Ohhhh I think im getting it.
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Anonymous Coward, 21 Oct 2011 @ 1:33pm

Re: And if that's a derivative work...
that is right all Fairey did was take a picture of a picture. He didn't change the colors or the style, tone or character of the picture, it was just a straight copy.
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Anonymous Coward, 21 Oct 2011 @ 1:34pm

Re:
Woot your improving, you got a bite
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Anonymous Coward, 21 Oct 2011 @ 1:35pm

Re: so...
according to the AC at the top only if the original movie is owned by poor people in another country who could never actually take you to court
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hothmonster, 21 Oct 2011 @ 1:38pm

Re: Re: Re:
I agree in part. I understand the locals sharing these photos and taking pleasure in them. I can understand the urge to be there and take the photos and be in the photos. But for us outsiders to revel in this and for our major news outlets to put this image everywhere is pretty disgusting. Let alone the photographer who takes a picture of a rebels picture than sells it as his own, nothing like a little blood money i guess.
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Anonymous Coward, 21 Oct 2011 @ 3:04pm

Re:
So I can take a photo of every image on Getty's website, crop it, then sell it completely legit?

Thanks for the info AC, I've got a new business to start up.
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btr1701 (profile), 21 Oct 2011 @ 4:33pm

Re:
> Gaddafi may have been a lot of things, but he
> deserves at least a little dignity in death.

No, he doesn't.
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Atkray (profile), 21 Oct 2011 @ 8:44pm

Re: Re: Re: Re: Re: Re:
Now I understand why they are trying to keep people from filming movies with their camera phones.
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Michael (profile), 21 Oct 2011 @ 10:23pm

This is great! Now you can get your own copyright on any photo you want: Just take a picture of it yourself!
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G Thompson (profile), 21 Oct 2011 @ 10:49pm

Re: Re:
What the picture is of is irrelevant.

The Berne convention is in effect, as are all international treatise, until at such time that a Libyan government with appropriate authority (whether transitional, elected, or whatever) can negate that treaty(s).

The Berne convention as Andy stated is one of those things that the USA government really doesn't like since it creates an equal playing field for all signatories in regard to copyright and that no registration is required so that the originating artist has full rights no matter what organisation tries to claim title and rip them off.
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Tadley Acres, 22 Oct 2011 @ 1:10am

Wow. It's incredible how rabid people can get when they wish to overlook the one critical factor; permission.

Sure those of you who want to set up a business are welcome to take pictures of every picture on the Getty site to sell or record movies while at the cinema for your market stall. All you'll need to get started is permission from the copyright holder. Crack on then... Ah, they said no? That's a shame I guess you won't be able to do that. However, the photographer above actually approached the copyright holder and personally requested permission to take the photo. The copyright holder even assisted him as he took it apparently. The agreement was made with the owner's understanding that the photographer was clearly a professional and taking it for the purpose of his work. The guy kept the video and sold it on to a variety of other agencies by the looks of it so will surely have made a nice profit out of it.

So when it comes to claims of theft and universal copyright law collapse, get a grip.
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Shii, 22 Oct 2011 @ 7:12am

Re:
Tadley: You're saying the guy who took the original photo signed away all his rights without even asking put his name on the attribution line? That he said "use the AP photographer instead"? What a nice guy.
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Tadley Acres, 23 Oct 2011 @ 10:41am

Re: Re:
That's entirely between the original copyright owner and the photographer. To basically call him a thief when you have no idea of the full situation on the ground is somewhat ridiculous. Here's a thought; maybe he was happy for the picture to be out there? Maybe he was happy to see Gaddafi dead and the photos all around the world? You'll be amazed but some people are happy to give pictures away. As it happens in this case, the guy wanted to sell the video (which he did) but was happy to let the photographer take a picture.

The only people who should be concerned about the details of the deal are the original owner and the photographer. It's not up to people with no idea on what happened to throw accusations of ethical issues and copyright theft around. While AFP's theft of images in Haiti was a real low and cannot be justified in any way, comparing the two situations isn't really possible.
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jane hamilton-post, 23 Oct 2011 @ 11:24pm

That he should use the photograph is fair enough. That he should claim copyright is a despicable contortion of the law as set out in the Berne convention, which has been signed by many countries and could be regarded as default, at least in the spirit of the thing. The whole point here, imho, is that the spirit of the law has been broken against the wheel of it's technicality, as indeed has the spirit of the law as signed under the Geneva convention regarding the treatment of prisoners of war.
I am sure the guy with the sand running out of the holes in his shoes will at some stage want some reparation on his video screen shot. I certainly would.
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Anonymous Coward, 24 Oct 2011 @ 3:22am

Re:
If you don't have it in writing or a witness I doubt you can prove that he has permission.

More is he paying the guy?

What kind of freetard wants things for free?
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