AFP Sues Photographer Whose Photographs It Used Without Permission

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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