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Agence France Presse’s slap to photographers

Agence France Presse filed a complaint against Haiti-based photographer Daniel Morel, claiming heengaged in an “antagonistic assertion of rights” after the photographer objected to the use by AFP of images he posted online of the Haitian earthquake

On Monday, Agence France Presse filed a complaint in the United States District Court Southern District of New York against Haiti-based photographer Daniel Morel. Agence France Presse claims Morel engaged in an “antagonistic assertion of rights” after the photographer objected to the use by AFP of images he posted online of the Haitian earthquake of 12 January.

At the heart of this case, which has prompted Morel to file a 66-page brief and 10 counterclaims, is the use, by news agencies, of social networking websites such as Twitter. However, in my opinion, this case highlights one major problem affecting the journalism world in particular: a blatant lack of respect for a photographer’s work and copyright.
The Daniel Morel case – What happened?
On 12 January at 4.54pm, Morel writes, “the most catastrophic earthquake in the Caribbean region in 200 years struck Haiti.” The devastation would leave 230,000 people dead and 1.5m homeless. Morel, an established and award-winning photographer who used to work for Associated Press and since 2004 works as a freelance represented by Corbis, was in Port-au-Prince when the earthquake struck.

Minutes later, Morel and an American journalist and friend, Eric Parker, “hit the street to obtain dayligh shots” of the devastation. “Everybody was panicked,” writes Morel. “Sobbing and dazed people wandered around the street. Lots of people were dead. Then I photographed until dark.”

With the help of a friend and hotel manager, Morel, that evening, created a Twitter account with the username “PhotoMorel”. It was the photographer’s first foray in the world of 140-character long Tweets. By 5.20pm that day, Morel posted on TwitPic 13 images he had taken that day.

TwitPic is an image-sharing website that links to Twitter while being legally independent from the micro-blogging website (this fact will be important later on).

The images attracted immediate attention, from news sources but also from one Twitter user named Lisandro Suero. The latter downloaded Morel’s images and uploaded them again on his own account, claiming to be the author. The images would, later, end up being taken on by Agence France Presse.

At 7.59pm, Morel received a query from a NBC News producer to use the images. At 8.13pm, it was the Wall Street Journal’s turn, followed by Associated Press, and ultimately Agence France Presse.

This is when things get interesting. Writing on Twitter, Vincent Amalvy, a photo editor with AFP, tries to get Morel’s images. It’s 7:12pm. Two and a half hours later, at 9.41pm, the same photo editor emails Morel asking “do you have pictures?” Four minutes later, AFP uploads Morel’s 13 images, but from Lisandro Suero’s TwitPic account, crediting Suero.

According to Morel, “AFP wilfully or with reckless disregard of Mr Morel’s rights, in its rush to receive credit for the news-breaking photographs to the world, failed to use due diligence to ascertain the identity of Mr Suero, or to verify his authorship of the photographs.” He adds: “No standard or traditional good journalistic practices were followed. Either AFP has no reliable process in place to verify the authenticity of the image or the accuracy of the source, or AFP failed to use such process or procedure.”
Ben Fathers to the rescue
The next morning – 13 January. Ben Fathers, who works with Agence France Presse, contacts Morel asking for him to email to discuss licensing of the photos. Now, one has to wonder, as Morel points out, why doesn’t AFP sends a “KILL” notice for the exact same photos it distributed under Suero’s name?

BenFathers.jpg

Fathers tried to contact the photographer five times in less than four hours. At 5.30am, AFP finally issued a wire to have the credit changed on the 13 images from Suero to Morel. The images were, then, licensed by Getty Images (who signed a distribution deal with AFP in 2003) for $195 each.

Morel will have to wait until 03 March to see AFP send a “KILL” order to all its affiliates. By that time, the images were used by newspapers and networks such as Boston Globe, the New York Times, The Age, Vanity Fair, USA Today, The Guardian, etc. Each time, the credit reads Agence France Presse.

While Morel asked, through his lawyer, the different news organisation to remove the images, arguing that Agence France Presse has no right to distribute them, the agency is now claiming that Morel is engaging in “commercial defamation”. AFP filed its legal complaint against the photographer on 26 March.
Agence France Presse’s slap to photographers
According to AFP, Morel granted any third-party a non-exclusive license to use the images by posting them on Twitter. According to the micro-blogging site’s terms and conditions, says AFP, Morel granted a worldwide, non-exclusive, royalty-free license, with the right to sub-license others, to use, copy, publish, display and distribute those photographs.

AFP adds that “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.”

That’s when the issue becomes murky. What AFP fails to recognise is that Morel NEVER published his images on Twitter. Instead, Morel uploaded the images on a third-party service called TwitPic. TwitPic hosts images that can then be linked to on Twitter. The process is automated, and depending on the mobile application you use, can be flawlessly integrated. However, the fact remains that the images were uploaded on TwitPic, which has its own terms and conditions.

These T&Cs were updated on 12 February to clarify its copyright policy (probably as the numerous copyright problems that originated with the Haitian earthquake). However, use of Wayback Machine, which archives previous versions of webpages, it becomes clear that at no time did TwitPic asked for non-exclusive licenses to distribute the images. Instead, it simply said “All images uploaded are copyright © their respective owners”.

Morel did not distribute images using Twitter. Instead, he distributed a link to images he uploaded on TwitPic. What Morel did is similar to what the millions of Twitter users do each day: sharing links to content found elsewhere on the Internet. BJP, for example, through its 1854 Twitter account, often links to its articles. Does that mean that anyone can “use, copy, publish, display and distribute those articles”? Can the AFP do? Of course not. So why would it be different for photographs.
The bigger picture
What is truly at the heart of this case, as I said before, is the blatant disregard for photographers’ rights the journalism community is revealing. Are we to believe that photo editors at Agence France Presse did not know that images, even found on a social networking site, should be used with their copyright owner’s authorisation?

Are we to believe that Agence France Presse didn’t think it should verify the origin of such newsworthy images?

As I wrote in an article in BJP’s March issue (which consequently is being used by Morel as evidence in his case against Agence France Presse), news organisations such as Associated Press and Reuters have procedures in place for the authentication, use and distribution of images sourced from social networks. Unaware, at the time, of the legal ramifications that case would take in the following weeks, I wrote about Morel’s images.

On 12 January, in the late hours of the evening, Santiago Lyon (@slyon66), director of photography for Associated Press, was on Twitter. A few hours before, a magnitude 7.0 earthquake hit Haiti, killing more than 200,000 people. At 11.32pm, Lyon sent a message to Daniel Morel. The man, based in Haiti, had just posted on Twitpic an image of the earthquake’s aftermath. Lyon’s message went straight to the point: “Santiago Lyon of the AP here. Great work so far in a difficult situation. Any chance we can do a deal for your images? Can I contact you? Would like to chat if possible.”[…]

Searching social networks for “eyewitness content” has become standard procedure for news organisations, says Lyon. However, they must have systems in place to authenticate the images. At AP, “we assess each photo on a case-by-case basis, only selecting the images that we feel are coherent and newsworthy and actually show the events they purport to show.”

Then follows the difficult task of identifying the copyright owner. “We search for contact information, we call, email, or comment on the photo asking the person to get in touch with us.”

Reuters uses the same procedures, Thomas Szlukovenyi, global editor of pictures, tells BJP. “We occasionally use pictures from social networking websites on major breaking news stories, but they go through an extensive verification and editorial evaluation process before we commit to using them and proceed with the photographer’s payment,” he says. “Haiti was a good example as we were not comfortable using the very early pictures available on social websites. Since we could not reach the people who posted the image, we did not use them. Our team of photographers was shortly in place and we were able to show the world ourselves.”

 

Associated Press and Reuters can be commended, in this case, for their stringent procedures. However, countless cases tend to prove that these procedures are exceptional and that journalists, in their race to beat their competitors, are forgoing proper journalism teachings.
The Independent and The Guardian
In January, we wrote about The Independent’s illegal use of an image sourced from Flickr.

On 05 January, at the height of the recent blizzards, The Independent used the Flickr API to source images tagged with ‘UK Snow’ to illustrate an article on the adverse conditions affecting the country. The stream of images appeared for two days.

However, among the images was one by photographer Peter Zabulis, who shared his work on the photo-sharing website under an ‘All Rights Reserved’ licence. Zabulis contacted The Independent’s editorial director for digital, Jimmy Leach, asking for clarification on why his image was used and whether the newspaper would be paying for the use.

The email exchange, published on Flickr, shows Leach answering that The Independent didn’t know it had breached the photographer’s copyright. ‘We took a stream from Flickr which is, as you know, a photo-sharing website. The legal assumption, therefore, is that you were not asserting your copyright in that arena. We did not take the photo from Flickr, nor present it as anything other than as it is shown there. I do not consider, therefore, that any copyright has been breached or any payment due,’ Leach wrote.

Leach also added: ‘I am puzzled about what you think we may have done wrong or if anything what your loss or claim would be.’

However, the Flickr API’s terms and conditions specify that a publisher is ‘solely responsible for making use of Flickr photos in compliance with the photo owners’ requirements or restrictions,’ and that All Rights Reserved images cannot be used without consent from the copyright owner.
http://www.bjp-online.com/public/showPage.html?page=872809

One month later, it was The Guardian’s turn:

Guardian News & Media has apologised to a photographer after it used one of his images for an online article without credit or compensation.Following BJP’s report on The Independent’s breach of copyright when it used an all-rights reserved image posted on Flickr, a US-based photographer contacted us to report that The Guardian had featured one of his images without permission.

Daniel Sheehan, who lives in Seattle, told BJP that on 09 December The Guardian published an online article headlined ‘Spanish fan calls police over saxophone band who were just not jazzy enough’. To illustrate the article, the newspaper used one of Sheehan’s images without contacting him. On discovering the breach of his copyright, Sheehan tried to reach The Guardian’s music editor to no avail.

Contacted by BJP, a Guardian News & Media spokeswoman said that the issue has now been resolved. ‘As an organisation that publishes hundreds of thousands of pictures each year, and despite robust internal procedures to identify and pay for freelance pictures, even with the best intentions omissions can occur from time to time,’ she says. ‘We have now been able to contact Mr Sheehan to apologise and resolve the matter.’

Sheehan has confirmed to BJP he was contacted by Guardian News & Media’s head of rights and content acquisition, who has offered payment for the image’s usage.

Further examples of such questionable journalistic practices can be found in Morel’s case. Three copyright infringements by CBS, ABC and CNN have barely been mentioned. In addition to counter-suing AFP and Getty Images, Morel is also citing as co-defendants the three networks.

CBS, for example, contacted Morel at 8.01pm on 12 January, asking if it could use or buy the images. While Morel never answered CBS News’ emails and Tweets, the network still used the images. So did ABC and CNN. The latter went as far as producing, on 19 April, an invoice claiming that it had acquired the images from Corbis on 13 January – despite the fact that Corbis started distributing the images only on 22 January!

What does this say about journalism in the digital age? Is it alright, because easily available, to use other people’s works without their authorisation? Getty Images, the BBC, CNN, News Corporation and other don’t think it is – at least when it concerns their own content. So why is it okay to use photographers’ images without their authorisation or consent?

Journalists need to be trained and educated about the value of copyright and of photographers’ – amateurs or professionals – work.

Morel is now claiming damages for the loss of income and copyright infringement of his images. He’s asking for $150,000 for each act of infringement, as well as statutory damages. I sincerely hope, if the case goes in front of a jury, that the court finds in his favour – for photographers’ sake!

August 2017 Issue:

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