AFP v. Morel – Oral Arguments

- - copyright

There’s a transcript available from the oral arguments in the case where Agence France Press, Turner Broadcasting/CNN, ABC, Getty Images and CBS are suing Daniel Morel after they stole his images from Twitter immediately after the Haiti earthquake (Read all about this on BJP).

The transcript is available on the duckrabbit blog (here) and I would encourage you to visit and see what he’s got to say about it. He’s also done an excellent job engaging JF Leroy (Director of the Visa Pour L’Image photofestival) in a debate over Daniel Morel’s posting of valuable news images on TwitPic/Twitter. JF told the British Journal of Photography (BJP) “Photographers have to accept their responsibilities. You can’t put your images on Twitter and not expect them to be taken up by others” and duckrabbit has hounded him about this statement and gotten several responses (latest one here).

Obviously this is going to be an important case for photographers so I’m posting the latest developments as they come here. Of great interest to me is how content distributors are suffering because of the ease at which content moves on the internet and they’re fighting hard to claim some kind of right to distribute un-credited things floating around. Obviously this is not how copyright law works so they’ve not got a leg to stand on but it’s interesting to see how their lizard brain works in the oral arguments:

THE COURT:  What should I do about the language that says, All images uploaded are copyright their respective owners?
MR. KAUFMAN:  That’s true.  There is a difference between owning a copyright and having a license granted.  No one says that Mr. Morel lost his copyright by posting his images to Twitter/Twitpics.  We have never argued that.  We are saying that by accepting the terms and conditions, he accepted — he granted a license, and the terms of the license are what is set out in Twitter as to the use of third parties. Twitpics doesn’t talk about third parties.  It is silent as to that.  So you look to the other part of the equation, the Twitter, which does specifically talk to Twitter’s use, its partners’ use, and the user’s use. And it says when you put — other social networks and other sites don’t have this language.  You can — if you look at one or the other, this language happens to be very broad. It is what Twitter and Twitpics are all about.  It is the broadcast — re-twitting has become part of the lexicon, because these when you post these things up here, it happens again and again, it’s what people do at these sites.  It is not matter of stealing.

I don’t expect someone holding a photography festival in the south of France where content is shown to prospective clients in person to like or understand what is going on here just as I would expect AFP to be very aggressive in finding a way to make money off distribution of content, even if that mean stealing it. I only hope Twitter takes notice to what is going on here and that photographers rally around Daniel and that we try to turn these new social tools into something useful and profitable for photography.

There is the conclusory assertion that ABC removed copyright management information, but all of the exhibits in the complaint itself or in the counterclaims themselves show that there was no copyright management information on the photo, there was no copyright management information that would have come along with it when you download it, and therefore nothing was removed.  There is no case that says that you have to reach out and add additional information that may have appeared elsewhere on the page, and that allegation of violating through the removal of copyright management information doesn’t state a claim absent something there that was actually removed, which couldn’t have happened.  And if we downloaded and saved, we got what was there.  Whether we should have taken it or shouldn’t have taken it is a different issue and will come up later in the case.  But for the purposes of copyright management information, if you look at all of the exhibits depicting the image, there is no copyright management information on it and no case says we need to also pull information from elsewhere on the page.

MS. HOFFMAN:  The only thing I wanted to say is that all of the defendants here aggressively defend their own copyright and that the — that the claim that I just said, that Mr. Morel — and it probably is not worth repeating — but when Mr. Morel put up those images, it is not really any different than ABC, CBS, CNN wanting everybody to come to their sites to watch the Olympics or the tennis championships, and they aggressively defend copyright in those programs, even though they want all the world to see it, for the purpose of selling sponsorships.

Oh, the irony.

There Are 34 Comments On This Article.

  1. So – in the last excerpt-

    “it is not really any different than ABC, CBS, CNN wanting everybody to come to their sites to watch the Olympics or the tennis championships, and they aggressively defend copyright in those programs, even though they want all the world to see it, for the purpose of selling sponsorships.”

    Does this foreshadow the possibility that these large media companies may actually be undermining themselves in protecting their own copyrights?
    For example – say if the unfortunate event occurs that the courts decide in favor of these media companies – would that not mean that a door would open to all media found on the internet including news/photos/videos posted by those companies themselves? Could I then start a news organization completely fueled by posts from other large corporations, displaying all of their content as my own?

      • The Vigilante Journa

        @marco aurelio, I don’t know about Yahoo News specifically, as I haven’t looked into the matter, but in 2005, Mr. Kaufman spearheaded the lawsuit AFP v. Google, suing Google for copyright infringement for linking to AFP story headlines in their newsfeed. Google and AFP subsequently settled in what appears to be a contractual licensing deal wherein Google effectively syndicates AFP wire copy. The same is true of Google New’s relationship to AP, though a lawsuit was not necessary for the two to strike a deal. Could we expect a similar deal to eventually emerge from this case, ie, AFP syndicates Twitpic feeds? Interesting idea to entertain: Citizen journalist-generated content sold to wire agencies who then feed their stories to Google…. my head is spinning!

  2. Interesting point they try to make about no copyright info being embedded in the photo. David Riecks, a noted metadata expert, has documented the tendency for so many sources and distribution sites to strip out the metadata. That is for them to strip out all copyright info that may be embedded in the image.
    Could it be that Twitter and it’s Twitpics are doing the same without informing content providers of this practice?
    (Even if there was no copyright info embedded it still does not justify the taking of the images.)

    • @Dennis Dunbar, Yes and all the artist has to do is prove they are the copyright holder. So the argument that there was no information attached to the photo isn’t valid. It’s like saying well Picasso didn’t sign this piece so it’s mine.

  3. it just looks like the newssites are just tying to pre-empt Morel and the rest of us, and in the diminishing-economy, recession-based world, to continue to push the limits on rigths-grabbing trends taking root over the last decade. wonder if photog societies can pre-empt and sue social networks to get rid of the right-to-sub-license clauses.

  4. I think something else that is missed is that AFP and Getty Images have the financial resources to outspend ANY photographer in court. Whether or not the law is on their side, they could simply chase away challenges by outspending their opponents. It will be interesting to see if justice prevails over financial resources, otherwise all of us photographers should forget about ever putting forward legal challenges to infringement.

  5. These social tools are businesses with their own terms and conditions, just like photographers have in their own contracts. Photographers need to respect the Terms of Use of these companies just as they expect their own T&Cs to be respected.

    This isn’t a question of copyright law, really, but of contract law.

    You can’t have it both ways–you can’t expect these social media tools to be free without giving up something. If you don’t like their rules, then don’t use the tools. Using these tools is not required, it’s a choice, and there is a price–in this case, granting a broad license.

    As I posted, if you expect the law to be there for you when you need it, you have to support it even when it sucks for you. This is just such a situation. I feel terrible for the photographer, but he ignored Twitter’s terms and it bit him in the ass, hard.

    (NOTE: I am NOT a lawyer–this is just my personal opinion)

    • @Leslie Burns, I agree with you EXCEPT that Daniel Morel DID NOT post his pictures on Twitter. That would be impossible. He posted them on TWITPIC which is a separate company with separate terms and conditions.

    • @Leslie Burns,
      How Twitter is used continually evolves and the T&C is continually changing. Better to participate and shape how it is used than to sit by and watch.

      The NY Times tweets all their newspaper articles. You’re telling me I can resell that content based on the broad license they’ve given twitter. Bullshit.

  6. Jeanine Marriage

    Leslie,

    Flickr is free too. Why should free necessarily mean getting screwed? Big media companies can just take content and sell it without verifying the author or compensating him? Have you any knowledge of the push to get the Orphan Works bill through Congress? These big fishies will try anything to get around the rules. There is a movement for this. It’s called corporate greed. Rather than boohooing for the photog and chalking it up to just the way things are, why not push for better protections and clearer laws in the new media age we live in? If you read the entire transcript, the strongest argument AFP’s lawyer can come up with is that the Terms and Conditions are suggestive at best. One has to wonder why ABC’s lawyer makes a motion to settle out of court after the proceedings.

  7. It’s time for professional photographers (and others, too) who are running businesses to act like responsible businesspeople and not victims. I’m tired of photographers talking about getting screwed. You are not a bunch of hapless victims, you are businesspeople. Hold your clients to your contracts’ terms and respect the terms you agree to as well. Equality and respect on both sides.

    Nothing is really free. Facebook, Twitter, Flickr, etc., all have to make money and they do. You give stuff up to use these service, be it privacy, access to personal info, or in many cases you grant a wide license to use your creative content, which the services then convert for cash (like selling your data to companies for marketing, for example). That is how you as a user “pay” for the access to these services. It’s terribly naive to think you actually have some sort of right to these services without paying in some form or another.

      • @duckrabbitblog,
        I’m about to graduate law school having studied intellectual property. In my classes, we have spent a lot of time discussing social media and their terms of service.

        I do know what I’m talking about.

        Also, saying “no disrespect” is like saying “I’m sorry but” in a fake apology.

        • @Leslie Burns,

          Respectfully

          I would have hoped your legal class would have taught you not to speak in generalities. The terms and conditions of social media sites vary widely and should be looked at on a case by case basis.

          You say ‘It’s time for professional photographers (and others, too) who are running businesses to act like responsible businesspeople and not victims.’

          How many cases of professional photographers can you site where they have ignored the terms and are now acting like victims?

          If you read the transcript the judge in this case doesn’t seem to think so.

          • @duckrabbitblog,

            1. The terms don’t vary all that much really. Most require users to give up much more than most users would want, if they bothered to read the terms.

            2. Photographers are rather notorious for their “the world is out to get me” attitudes. I think the profession needs to stop acting like they have so little control.

            3. The word is CITE.

            • @Leslie Burns, thanks the spelling lesson. I admit its not my forte!

              I don’t think that it’s anything to do with ‘photography’ that people don’t pay enough attention to terms and conditions, it’s human nature. That’s why places like A Photo Editor do such a fantastic job of educating photographers.

            • The Vigilante Journa

              Leslie, it sounds like you’ve spent a bit of time studying social media, but it doesn’t sound to me like you have much understanding of how the market works for photographers, nor the constant rights grabs we are up against. This case is just one aspect of what we face on a regular basis. No one is screaming victimhood here. We are screaming injustice. There’s a big difference.

              I know a handful of professional photographers who use Flickr to SELL photographs, some of whom say they make their biggest chunk of cash through the site. Imagine that? People actually respecting the copyright notice on the page and paying you for your work! And the site is free. Hey the New York Times is free too. Most things on the web are free. Libraries are free. Some people specifically put creative commons licenses on their pictures and make them available for free to any agency that wants to use them. There is plenty of free to go around. Free doesn’t necessarily have to mean getting screwed, though in the mind of a lawyer, or soon-to-be one, I contend, there is often no apparatus in place to grasp the notion of free.

              I also know a lot of photographers, who DON’T use social media, who have one day just happed on their copyright protected images plastered on a Nokia billboard in Africa or republished in a book or magazine without their consent. The problem is, anyone can go to my website, take a screengrab of my picture and then go to Twitpic and claim it as theirs. If AFP, or other, comes along and asks “Hey is this your picture, can we use it?” and the thief says “yes,” there is nothing to protect me from the grab. Can you see where there is a problem here and why universal rights of protection need to be established to ensure professional photographers are not constantly getting abused?

              Photographers today need the web to survive and to promote themselves, but they are in a perpetual conflict with the dangers that come with it, social media or not social media, and yet we are not financially equipped to defend ourselves when rights grabs do occur, unlike big media companies who have lawyers up the wazooo and budgets to make our eyes spin. When image recognition technology becomes the norm, it will be a lot easier to track offenders, but for now we are in a constant battle with theft and corporate greed. It’s fine for people to tweet and retweet and share images all over the web. It happens millions of times a day. There is no way to stop this from happening. It’s a very different scenario, however, when a company takes that content and sells it for profit.

              A way to avoid this kind of theft is for media companies to simply buy directly from legitimate photographers’ archives such as Photoshelter or through legitimate agencies who represent them. Instead, they see a big pile of gleaming gold at the end of the rainbow and can’t stop drooling over the prospects of getting tons of images for free that they will then use for profit. Since you argue that free sites are not really free and that we, the lowly photographers, have to expect to pay in some way for those services, how is that any different from us expecting big media companies to pay for what they conveniently perceive to be free? Your argument can be turned on its head philosophically, but practically speaking, you’re right in pointing out that these kinds of injustices continue to happen, yet there are a lot of cases filed to prove that these kinds of situations are unconstitutional and violate our right to privacy or ownership.

              If you read the full transcript, you would have noticed that what is also at stake here is the definition of stripping copyright. Basically they are arguing that an image without a watermark or signature ON the photograph is fair game. This is absurd on so many levels, and I am sure I don’t have to explain to you why. But can you imagine someone taking an image that is not watermarked from the website of the NYTimes and selling it through Twitpic for profit? No. Why? Because the NYTimes has a legal team no one wants to mess with, and they would aggressively assert their rights in a court room, yet this kind of thing is happening all the time to individual photographers who do not have the means to engage in lengthy court proceedings. Can you see where I am going here with the victim schtick?

              AFP Lawyer Mr. Kaufman points to the importance of knowledge and intent. That’s great news! So the next time they take an image from twitpic and sell it to the world, when they discover the image was taken from someone else’s website, they can just say “We didn’t know!” I’m assuming that in such a case they would take the images down, but in the meantime, they will have made thousands of dollars off the image, while the photographer hasn’t seen a penny, and then the said photographer has to spend $100,000 he doesn’t have defending himself in court? Does that sound like a fair situation to you? Do you think poor people are annoying for acting like “victims” when they protest that the system is set up to screw them, with credit card companies constantly looking for loopholes in the law to hike up interest rates and put them further into debt? If so, maybe you should go back and read some Bertrand Russel too.

      • @duckrabbitblog, when you talk like that you lose me…you didn’t say anything, you just put the other person down as not being as knowledgeable as you might be on this issue.

        • @john mcd., Wasn’t it Leslie having a crack at photographers?

          ‘It’s time for professional photographers (and others, too) who are running businesses to act like responsible businesspeople and not victims. I’m tired of photographers talking about getting screwed. You are not a bunch of hapless victims’

          Any specifics here to respond to?

    • @Leslie Burns,

      I agree with Leslie. There’s no such thing as a free lunch. We’re all paying (or being sold) in some way or another for using these non-subscription services.

      • @Terence Patrick, have you heard of advertising? What is Google’s main revenue stream? When I use their search engine I am not paying for it, the advertisers are. Can’t see the problem there. The same will happen with Twitter. What about A Photo Editor? A HUGE amount of work goes into this blog, but it’s free for me to read.

        Not to say you haven’t got a good point Terence, just that I think the picture is more complex.

        • Terence Patrick

          @duckrabbitblog,

          Not really sure why there is so much condescension in your comments? If you’re such an expert, please enlighten us.

          • @Terence Patrick, Apologies you felt ‘condescended’ Patrick.

            I think I made my point. Just don’t see how you are paying for google, or Flickr or Twitter or A Photo Editor unless you’re advertising or buying products from those companies.

  8. The problem with this case is that it has the potential to set a precedent regarding all social networks.

    From the transcript:

    “It is the broadcast — re-twitting has become part of the lexicon, because these when you post these things up here, it happens again and again, it’s what people do at these sites. It is not matter of stealing.”

    AFP is claiming that, in effect, they were simply ‘retweeting’ Morel’s photo. If you follow this argument to its natural conclusion, any agency could ‘retweet’ any image and make money from it, for themselves only. No need to actually license anything from any photographer.

    • @Mason,

      The difference is that retweets leave a trail back to the original tweet. Downloading a tweeted photo and sending out one’s own tweet without any credit or link (or selling to other parties, in this case) is a different story all together.

      My feeling on this case is that the photographer really left himself exposed without watermarking his image. Or alternatively, he could have posted the image to his site with his own T&Cs and tweeted a link to the image.

      • The Vigilante Journa

        @Terence Patrick, I don’t think Mr. Morel has a website, though that certainly would have been a good option. Mr. Morel left himself exposed, yes, but we are all left exposed the moment an image appears on-line without a watermark, and if you publish within the on-line press, that happens on a daily basis. For the record. I do not use social media to share my work. Most of my photos are watermarked in a Photoshelter archive, and I discourage the use of social media because what happened in Morel’s case is always a risk. But I do not condone the theft. It’s like saying I don’t go walking round sketchy neighborhoods in a miniskirt at 4 am, it’s reckless. But I am not going to condone the behaviour of rapists who attack a woman dressed that way at that time. It’s also worth noting the context. I do not go walking around a sketchy neighborhood in a miniskirt at 4 am, but I might have done so in the middle of an earthquake. Maybe I couldn’t get to my house, where my closet was full of more conservative attire…

  9. Who are the photo news distribution companies that you can send newsworthy photos to and have them distribute them legitimately so you get paid? Also, I’m a fine art photographer and have a ton of my work on Flickr, but it is all watermarked. Will this protect me or can they photoshop out my watermark and sell the images? I never agreed to the common license on Flickr.
    I was under the impression that they could only redistribute photos to promote the site, not for monetary gain to a third party. I guess I was wrong.

  10. Leslie Burns

    The fact that you are graduating from law school means that you ‘might’ know what you are talking about, but it is by no means certain that you do. I cite many cases of junior lawyers that I have come across who get it wrong.

    Bob