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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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