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Tonight I have received a copy of the transcript of the court proceeding in the case of AFP, Getty, CNN and ABC against Daniel Morel (for the background to this case read here).

You can download the  proceedings here: AFP v Morel

It’s no exaggeration to say that the arguments presented in court mean that this case, if it goes AFP’s way, could affect all photographers who use the web.

AFP have argued that when they originally distributed Morel’s photographs they thought they belonged to another man by the name of Suero. It is true that Suero stole Morel’s pictures and re-posted then on his Twitpic page.  This led to AFP taking them and selling them on. Infact as you can see from this screengrab I have taken from Newsweek’s website there are still many places on the web where Suero/AFP and Getty are wrongly identified as owning the image:

What came out in court was that before contacting Suero AFP tried to contact Morel. AFP saw the pictures on Morel’s Twitpic page but they ignored the strong probability that he was the photographer, instead publishing the photographs under Suero, the thief’s, name.

As a news agency they put profit before accuracy. If that’s the kind of action that is considered damaging to the credibility of a news outlet, what they did next takes the story to a whole different level.

Morel swiftly contacted AFP requesting that they stop selling his images. In response, according to the court transcript, six hours later AFP recredited the pictures to Morel, but maintained their right to continue to distribute and profit from the images. The photos were now appearing on websites with the following credit:

So what argument are the photo agencies presenting in court which gives them the ‘right’ to continue to distribute and profit from these photographs without the photographers consent?

They presented two in court:

  1. The terms and condition of Twitter (yes I know the photos were published on TWITPIC and so did the judge) allow photo agencies a license to take and profit from the photos.
  2. That unless photographs have copyright embedded into them in written form then agencies have the right to distribute those photos for profit.

The first point is clearly nonsense, because Twitter doesn’t host photos.  AFP argued that Twitter’s terms and conditions were applicable to TWITPIC because of the way the two sites are linked.  It’s pretty obvious from the transcript that the judge was having none of it. It’s the second point that matters.

What AFP are arguing is that any picture on the web that doesn’t have the name of the photographer actually on the photograph is fair game for them to take and sell. The irony is that if this was true there would be nothing to stop me from stealing the photographs off  Reportage By Getty Images (the photos are niether watermarked, nor have the name of the photographer printed on the image) and then selling them on.

Why does this matter?

Duckrabbit made a big mistake in his analysis of this case by giving the photo agencies too much credit.  In my naiveté  I thought that this was probably a rare occasion, but now I am starting to suspect it’s the tip of the iceburg.

If AFP/GETTY win this case then no photograph is safe on the web unless it is watermarked. Why?  Because as I demonstrated in an earlier post anyone can take a photograph from one place on the web and re-post it  somewhere else on the web, removing the photographer’s credit. That would be an act of theft. Despite that photo agencies would then be free to take that stolen image and sell it with impunity because the name of the photographer had been removed by somebody else. In effect they would be free to repeat what they did to Daniel Morel.

What remains a mystery  is why Morel has received so little support from other photograpers?  Infact publicly he’s actually been given a good kicking by JF Leroy, (Director of the Visa Pour L’Image photofestival) for behaving like an ‘amateur’ ‘activist’!

Surely he is a hero because right now he is the one person standing between your on-line photographs potentially being flogged legally without your knowledge or permission by photo agencies. If this happens to you, and Getty decide to ignore you, are you going to be in a position sue them?

If Daniel Morel loses, you lose too.

(please note in an earlier version of this post there was a complaint by the photographer Jack Atley about how his photographs had appeared in Getty’s archive without his knowledge. It seems that Bloomberg, who he had been working for, have licensed their image library to Getty. Jack has written several times asking for all his comments to be removed.  We can only conclude from this that his complaint against Bloomberg was without grounds.  The lesson is PLEASE check the terms and conditions when you sign a contract. You may be signing away more than you think)

duckrabbit is a production company formed by radio producer/journalist Benjamin Chesterton and photographer David White.We specialize in digital storytelling.

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  • iamnotasuperstarphotogrpher

    This is absurd… I mean who is fighting Morel’s case for him? It is not exactly complex is it? Should be simple for the judge…

    • http://www.duckrabbit.info/members/duckrabbit/ duckrabbit

      Agreed … I’m sure that AFP/Getty’s strategy was to sue Morel till he shut up and went away. They probably thought a letter would do it. Turned out Daniel Morel was made of stronger stuff.

  • andrew

    I’d advise every photographer to do a search of their name at both Getty and Corbis.

    Without ever having supplied either agency, I found a number of my photographs at Getty and one of my photographs at Corbis. Getty, in correspondence, claimed that my images had come to them when they acquired the Tony Stone archive. When I pointed out that I’d never worked with Tony Stone they expressed bemusement – they did however immediately offer to courier the original transparencies to me and were unfailingly polite.

    As for Bloomberg, don’t they transparently have a contract in which the photographer transfers copyright on images selected (with the photographer retaining copyright on outs)? If that is the case, then they don’t need to have a “WRITTEN CONTRACT…in place to say they could on sell…images” – they can do whatever they like because they own the rights. This is in no way comparable to the shocking theft of Daniel Morel’s photographs.

    • http://www.duckrabbit.info/members/duckrabbit/ duckrabbit

      Hi Andrew,

      good point. I’m sure that you’re right, which is why its important that all photographers check the terms and conditions.

  • Tsu Kamoto

    Photographers should be standing up for one another, because what duckrabbit noted as point two is a huge deal. It could finally be the tipping point that brings the already frail industry to its knees –> “2. That unless photographs have copyright embedded into them in written form then agencies have the right to distribute those photos for profit.” Thank you duckrabbit for pointing this out, and I hope this will be noted on more in the future.

    • http://www.duckrabbit.info/members/duckrabbit/ duckrabbit

      Hi Tsu,

      You make a good point. The reason why I pointed this case out is that the photographer said that he never signed a contract!

      • andrew

        Actually, Tsu makes a terrible and misleading point.

        “Work for Hire” is an American concept that largely applies to the lower reaches of the market. In most jurisdictions in the world a freelance photographer, unless s/he signs a contract to the contrary, legally holds copyright of assigned work; and even in the US, most respectable publications seek nothing more than first rights from photographers.

        Additionally, rather than encouraging photographers to “READ YOUR CONTRACTS BEFORE YOU DO ANY WORK FOR A CLIENT” we should be WRITING our contracts before working. Why let a client dictate the terms to you? Too often photographers are their own worst enemies…

        • http://www.duckrabbit.info/members/duckrabbit/ duckrabbit

          Ok .. THANKS Andrew for pointing that out! And I totally agree photographers can be their own worst enemies, but that tends to go for any trade.

          • andrew

            Duckrabbit, you clearly have a more compliant and reasonable plumber than I do.

        • andrew

          Tsu, if you work on assignment for, say, Time or Der Speigel the copyright doesn’t revert to you “after a certain time period” – unless you sign a contract specifying otherwise you hold the copyright from the moment you create the images. All that you should be giving in return for your day rate is a license for first publication rights, and in the event of them not publishing in a reasonable timeframe then this will be time-limited so as not to prevent future licensing.

          It’s a relatively new phenomenon for publications to expect photographers to routinely sign contracts, but as it’s becoming more common it’s incumbent upon us to strike out those clauses that are unreasonable and counter with our own contractual demands. I now insist on a clause revoking the license to publish if payment is not made within 30 days of invoicing.

        • Tsu Kamoto

          Thanks Andrew for the info. I’ve always wondered what the publication contracts are like. Good to hear that there is a little wiggle room for negotiations, though it seems photographers still need to be on their guard when it comes to retaining copyright, let alone timely payments. Agencies are an entirely different beast, and changing all the time. I have enough on my hands just shooting for them. Hopefully photographers will take note of these various types of contracts, but more importantly watermark their images and keep them off all social networking sites.

  • http://www.gordon-c-harrison.co.uk Gordon C Harrison

    If it was legal to use photographs that were not watermarked could someone explain why there was such pressure put on the US government a couple of years back to pass Orphans Works legislation? If it were legal to use images without a watermark or the name of the photographer embedded, as AFP asserts, there would be no need for greedy corporates to press for such legislation.

    The reason huge pressure was put on the US government (& the UK government only this year) to pass orphan works legislation is that it is ILLEGAL to use any work without permission, and if you can’t find the creator to obtain permission, then you cannot use it.

    Clearly AFP’s moral compass, if they have one at all, is defective, as is the arguments of their legal counsel. They are not alone, most large corporate bodies abandoned the use of the moral compass decades ago.

    • http://www.duckrabbit.info/members/duckrabbit/ duckrabbit

      Hi Gordon, I entirely agree with you.

      I’m probably not the only one thinking that AFP/Getty would win this case merely because ‘Morel’ would stand down once they started to sue him for aggressive assertion of rights. That’s why it’s so important that photographers support Daniel Morel, and why its been so disappointing how many have really been prepared to do so.

      • http://www.gordon-c-harrison.co.uk Gordon C Harrison

        Photographers can be their own worst enemy. We mustn’t let Morel get crushed only because he can be financially ruined by those with no morals. How can we go about setting up a worldwide fund for photographers to contribute to support Morel? It would only take 4000 togs @ £25 per head to give Morel a £100,000 fund.

        • http://www.duckrabbit.info/members/duckrabbit/ duckrabbit

          Hi Gordon,

          this is a great idea. For the moment though I think Morel has backing. He clearly has a decent lawyer and if you read the court document it’s clear that the judge is not persuaded so far to throw the case out on the basis of the arguments that AFP are presenting.

          I doubt if this will go the distance.

  • http://www.nickturpin.com Nick Turpin

    Is the a way to donate to Morel already established?

    • http://www.duckrabbit.info/members/duckrabbit/ duckrabbit

      I’m pretty sure that Morel is reading this page. I think the fact that people are being vocal in support will mean a lot. Maybe we could start a petition or a facebook page for people to join and show their support for Morel in this case?

      • http://www.ianaleksanderadams.com Ian Aleksander Adams

        for it. Morals for Morel.

  • http://thenakedeyes.blogspot.com Armando Ribeiro

    Yes lets get something going sooner rather then later so this corporations start to feel the heat.
    Also would be great for Morel to feel a bit backed up at least for once.
    There is a momentum going lets catch the wave!

  • http://re-photo.co.uk Peter Marshall

    I started adding a discrete but visible watermark on all the images I put directly on the web in June this year, seeing the way things were going. But of course I have many thousands of un-watermarked images around, though mostly with my copyright details in the metadata.

    I very much hope (and expect) the court will give a relatively speedy verdict against AFP.

    I think we need to organise and act together with the help of our unions and professional organisations to fight these thefts.

  • http://www.journalistpicture.de marc hofer

    Well, it might be mentioned before but…

    what about the copyright info in the EXIF section ( evil people could of course edit it but hey, who is evil, right !? ). Would that also count ?

    • http://www.duckrabbit.info/members/duckrabbit/ duckrabbit

      Marc, you raise a VERY good point. I think it WOULD COUNT. However if someone removes that information and then re-publishes the photo on a site like TWITPIC, according to AFP logic they should not be held responsible if they then sell on that photograph.

      • Olivier Laurent

        Except that TwitPic and other social networking sites remove all EXIF data when processing the images and displaying them on their sites. So when Lisandro Suero downloaded the images from TwitPic on his computer before uploading them on his own account, the EXIF data was long gone. One could argue that TwitPic is guilty of assisting Agence France Presse in the taking of Morel’s images, as I suggest in my latest update on BJP: http://www.bjp-online.com/british-journal-of-photography/blog-post/1740373/afp-morel-questions

        • http://www.duckrabbit.info/members/duckrabbit/ duckrabbit

          Cracking post, as ever Olivier. Very fair.

        • http://msf.ca/blogs/photos/ Bruno

          FYI, I just checked an image I uploaded a year ago on twitpic and all the exif data as still there, as was the copyright info…so I’m not sure about your claim that everything is stripped when uploading to twitpic..

          • http://www.duckrabbit.info/members/duckrabbit/ duckrabbit

            Well that changes things. Thanks Bruno.

  • youarewrongsowrong
    • http://www.duckrabbit.info/members/duckrabbit/ duckrabbit

      Actually Getty are the main sponsor of Visa Pour L’Image (cough cough)

  • iamnotasuperstarphotogrpher

    Mr Morel,

    It is standard legal practice to string out the case for as long as you can as it assumes that the machine will out last, out fund and emotionally exhaust you. It probably wins more than it loses that way and corporate risk analysis will lead the agencies to take the bet that photographers and clients can come back given the lack of choice in the market even if they lose.

    Know this Mr Morel and state your case in the simplest terms possible and let the agencies scrabble around to complicate things on some technical grounds because they will make mistakes. They already have by the sounds of it so take confidence that they are trying to use the only thing they have left – attack as a form of defence.

    See this as due process – in a sort of conflict of interest kind of a way, Getty would be employing someone to make these kinds of strategic decisions based on a risk assessment and not if it is right or wrong. Know that too. I bet they settle after testing you and your case out as the legal teams are sucking up resources as they fight your very simple case of theft.

    This has probably become bigger than they expected and once the legal teams report back to the people high enough in the agencies to say “enough is enough, lets just end this”. The legal teams are creating billable hours too no matter what they say so trust that the longer it goes on, the more damage it does to these agencies.

    I bet it has not got that far yet but it is coming… then you will have your justice/rewards.

    Keep going. Look at your following here…

    Best of luck!!

  • The Vigilante Journalist

    The argument by AFP and co. that because the photographs were distributed using Twitter is absurd, point blank. If we follow this logic, that would mean that when I post a link to a New York Times article, anyone is free to then use the NYT’s content for reproduction without upholding the NYT’s Intellectual Property Rights. Am I getting this right?

    THE COURT: And you were selling them, right?

    (AFP Lawyer) MR. KAUFMAN: Yes, we were, your Honor. And the license says, Nonexclusive royalty-free license to reproduce, process, adapt, modify, publish, transmit, display, distribute in any and all media or distribution methods. And later it says here — there is a line in here where there is no compensation, as well in Twitter. I don’t have my finger on it. It says all media, your Honor. When you were making the distinction between Twitter and Twitpics, Twitter is text. All media would include something beyond text. That’s photographs as part of all media. And that’s why this applies. It allows other people who are subscribers to Twitter, who pick these things up off of Twitter, the content, to do these things. (Ahem — can you read Mr. Kaufman? Tt says “distribute IN any and all media,” which as a lay person, I understand to mean that you are free to DISTRIBUTE Twitter posts IN any format, not to USE ANY AND ALL MEDIA. However, Twitter does have text and image; ie. your background page can be an image and your icon is also an image, so we are talking about two different mediums within Twitter. You are free to distribute these in any format you so chose. You can make a poster, a movie, an on-line multi-media piece using a screen grab, the tweets themselves, the personal icon, or the background image, and you can project it on the Empire State Building if you want without contacting the Tweeter for rights usage. Welcome to the 21st century Mr. Kaufman)

    THE COURT: And you were claiming rights and exercising those rights for profit, right?

    MR. KAUFMAN: Yes, your Honor.

    […]

    THE COURT: But that’s in the Twitter agreement –

    MR. KAUFMAN: Correct.

    THE COURT: — about tweets. That’s not content, is it?

    MR. KAUFMAN: Yeah, I think it applies to –

    THE COURT: You do? What’s the basis of that?

    MR. KAUFMAN: By submitting posting or displaying content –

    THE COURT: But a tweet is not the content.

    MR. KAUFMAN: Right.

    THE COURT: The content here is Mr. Morel’s photos.

    • http://www.duckrabbit.info/members/duckrabbit/ duckrabbit

      It’s because the photos were on TWITPIC, which is linked to Twitter …

      • The Vigilante Journalist

        So the terms and conditions of Twitpic don’t apply?

        • http://www.duckrabbit.info/members/duckrabbit/ duckrabbit

          That’s what AFP are arguing …

          • The Vigilante Journalist

            AFP is arguing that because Twitpic and Twitter are connected, the terms of use of Twitpic are somehow null and void. Let us suspend our disbelief for an instant and ask a basic question: if the pictures on Twitter(Twitpic) are free, why did they go to great lengths to contact Suero AND Morel in order to get permission to use them? If you see a sign with a bowl of candy that says “Help Yourself” do you go hunt down the two managers to ask if you can help yourself, especially when time is of the essence to get candy fast? Why not open up your bag and dump as much candy from as many free candy bowls as possible?

            If AFP acknowlegdes that Lisandro Suero was in error when he claimed the content to be his own, how is it that AFP is not guilty of the same error when they claimed the content to be their own and devoid of copyright protection? Also, why is Mr. Suero not in court, since everyone seems to agree that he is a thief? And who is Lisandro Suero exactly? Does he exits? His name is listed on Twitpic as, ironically, “D E Baser.” Daniel Morel’s twitpic page has his name listed as “Daniel Morel.” Since no one at AFP seems to have bothered to do a basic google search, which one of these two guys is more likely to be a legitimate person at first glance?

            AFP contacted Morel first, and then Lisandro. Why is this? Isn’t there a way to tell who posted the photos first? Don’t topic searches appear in chronological order? Wouldn’t it seem to suggest that the person who posted them first was more likely to be the rightful owner than the one who posted them second?

          • http://www.photo-mark.com Mark M

            If you read the transcript carefully, you’ll see that AFP is arguing that both Twitter and Twitpic TOS apply, but Twitpic’s does not address the key issue of licensing to third parties. The argument then continues that since Twitter’s TOS does address this issue, that it should apply. Of course the basic argument that twitter’s TOS has anything to do with this is suspect. Retweeting (which the AFP lawyer strangely refers to as retwitting) is nothing like downloading an image and selling it. To apply Twitter’s terms of service, AFP has free license to republish Morel’s tweets including the link in any media, but republishing what’s on the other end of that link regardless of how tightly integrated Twitpic might be is a real stretch. I think the judge sees through this. At least I hope he does.

          • http://www.ianaleksanderadams.com Ian Aleksander Adams

            The judge seems to know it’s bullshit. Surprises me that he almost encourages them to settle though – maybe because he thinks the big guys will still try to make it insanely difficult to do anything about it.

          • The Vigilante Journalist

            Doesn’t the judge say something to the effect that at best the language is ambiguous?

            It’s Mr. Penchina that makes a motion to request an order from the judge to mediate the case out of court, if I’m not mistaken. Don’t parties usually prefer to settle out of court when they have the feeling things aren’t going their way and may end up damaging their reputation more than anything? I could be wrong on that, but going to trial is hardly ever a good thing unless it’s a slam dunk.

  • http://www.markseager.com Mark Seager

    I have previously disagreed with Duckrabbit on another forum but here is a really important case that as Duckrabit mentions could affect all photographers in the future if it goes against Daniel Morel and that believe it or not it could happen.

    The reason I say this is because I was myself embroiled in a legal dispute a couple of years back where a client lost 148 of my original negatives.

    To me it was clear: They lost them and I was hurting but wanted to be compensated. Well you would not believe the skulduggery and the bullshit they tried to pull. Making an initial derisory offer to compensate to blaming the cleaning company employees and finally ME for leaving them in THEIR care.

    It’s easy to let the heart lead the head in something like this but fortunately I had a very robust law firm fight my corner who would routinely remind me to stay cool.
    Layers are like certain reptiles, cold blooded but with a nasty bite. I won BTW.

    I can imagine how Daniel Morel is feeling. These large corporations who make massive profits clearly knew they were dealing with something dodgy but continued to do so for profit knowing that any future claim made against them would be worth fighting and probably thought because Daniel Morel was Haitian he would not have the means to fight them.

    Taking legal action is not cheap.

    I sincerely hope Daniel Morel wins.

    • http://www.ianaleksanderadams.com Ian Aleksander Adams

      I’m hoping/betting that the firm working with him is doing it for a cut of the action. This is a big enough case with big enough clients that they could hope to get a good chunk of money. It’s obvious to the layman and it’s a fight worth fighting.

  • http://www.markseager.com Mark Seager

    BTW Maybe the reason so few photographers have spoken out in defence of Daniel Morel is probably because they don’t want to jeopardize their chances of getting a “screening” at Visa Pour L’Image or being considered for a “Getty Grant” to support photojournalism.

    Just a thought.

    • http://www.duckrabbit.info/members/duckrabbit/ duckrabbit

      I wouldn’t like to comment …

  • http://www.ianaleksanderadams.com Ian Aleksander Adams

    Amazing transcript. Judge sounds like a great person to know. Ornery to both sides in proper amounts according to their arguments. wish this was on court tv.

  • The Vigilante Journalist