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AFP v. Morel: The debate rages on

Jean-François Leroy has been forced to weigh in, one more time, on the legal case pitting Agence France Presse against Daniel Morel, after he refused to support the freelance photographer

As the Agence France Presse v. Morel legal case makes its way through the Southern Discrit Court of New York – oral arguments were heard on Friday 24 September – another debate is raging on online pitting a community of professional photographers against Jean-François Leroy, the director and co-founder of Visa Pour l’Image, the world’s largest annual photojournalism festival.

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At the heart of the debate are freelance photographer Daniel Morel’s actions. Morel was in Haiti when, on 12 January at 4.54pm, when “the most catastrophic earthquake in the Caribbean region in 200 years struck Haiti,” he says. 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, hit the streets to take pictures of the devastation. And, in the evening, with the help of a friend, he created a Twitter account and 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. 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.

Agence France Presse, which is the third largest news service, contacted Lisandro Suero and secured the rights to distribute the images. Whether AFP knew that the images were not Suero’s, but in fact belonged to Morel, remains a mystery (however, legal documents show that AFP  tried to contact Morel several times both before and after the images’ distribution in order to secure the rights. It’s highly unlikely that AFP didn’t realise Suero’s and Morel’s images were identical).

Once distributed, the images were published by hundreds of newspapers – such as Boston Globe, the New York Times, The Age, Vanity Fair, USA Today, The Guardian, etc. – and news sites around the world.

Several days after their publication, Morel started contacting Agence France Presse and various newspapers asking for his images to be removed or credited to their rightful owner – himself. His actions prompted Agence France Presse to file a court motion against the photographer, claiming that he was engaging in an “antagonistic assertion of rights” or damaging the news service’s brand. Agence France Presse claims that Morel, by posting his images on Twitter, offered any third-party a non-exclusive unlimited license to use and distribute the images.

However, Morel says, in 10 counterclaims, that “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.”

The case is now being heard by Judge Pauley in the Southern Discrit Court of New York.

Jean-François Leroy comes under fire

However, another debate is raging online. In June, the director of Visa Pour l’Image told BJPAgence France Presse that he couldn’t support Morel in his case against .

“Photographers have to accept their responsibilities. You can’t put your images on Twitter and not expect them to be taken up by others,” he told BJP. “In the span of a few hours, Morel’s images were on 300 sites. You don’t put images you think are worth $10,000 on Twitter. If I’m the witness of such a tragic event as this earthquake, I call an agency or Getty or Corbis. The photographer that calls me to complain about this, I’m sorry to say, I can’t defend him.”

In another interview with BJP, Leroy added: “Now I can’t insert myself in the legality of this case, but a photographer should never put his images on a social networking site. I have nothing against Morel, in fact, I feel very sorry for him, but I can’t condemn AFP, I can’t say that they are thieves.”His comments came under fire when they were first published in June, and again last week as the case made its way to the courts.

Both Duckrabbit and The Russian Photos Blog wrote about Leroy’s comments and rationale:

“Leroy’s rationale – that a certain group of people should avoid particular places because something bad might happen to them if they venture there – turns the world upside down and shifts blame for the crime from the perpetrator to the victim. In 2010 in the real world outside the web few would dare come out with such nonsense. Don’t agree? Then try this on for size:

“Any girl who goes to these clubs, and then gets assaulted, well too bad for her… a girl should never go to a nightclub. If you go to one and get raped, well… tough. You can’t ask me to defend you. What I’d like is for all women reading this is that they stop going to such places.” — Jeremy Nicholl, The Russian Photos Blog.

Duckrabbit adds:

If AFP, Getty and JF Leroy are implying its OK to take someone’s images and sell them on, then photography, apart from commissioned shoots, has absolutely no value, because nobody needs to pay for it, except the photographer who self-funds the work.

These comments have led to Leroy directly intervening in the debate. Yesterday, he sent a comment to Duckrabbit claiming that his point had been misunderstood. He writes:

“First of all, you seem to misunderstand my fundamental point: it is not because I believe that Mr Morel was wrong to upload images to Twitter that I believe that AFP had the right to steal them. The reductio ad absurdum that you reprint by using a rape metaphor is not only deeply offensive to me, it is also patently wrong. A better one, in my view, would be that of an insurance company who would refuse to  cover the theft of a car its owner would have left with the keys on the ignition. My position here is that of the insurance company. While, had the owner of the car (or, in this case, of the images) have exercised a reasonable amount of caution, I would have been defending him, I am forced to see that this caution was not exercised, and that I therefore cannot defend him. This does not mean that I defend the thief, as you imply.”

Leroy adds:

“By choosing to use a tool that is designed to spread images as efficiently as possible, Mr Morel made a decision that was contrary to his direct financial interests, and, as such, behaved not as a professional photographer but as an activist. That he seems to have decided at that moment that the value of the immediate dissemination of his images to the public was greater than his own financial gain is extremely noble behavior, and it should be commended. However, it also means that it is extremely difficult for me to defend him within the limits of what I do, which is defending professional photographers. I was not in Port au Prince when the earthquake struck, but I am surprised that, as a professional photographer, Mr Morel claims that the only means available to him to transmit his images was a Twitter affiliate. I have no way of verifying this claim, but I must say I am surprised by it. I am curious to know what technological exception made Twitpic more accessible than other options (assuming the absence  of an FTP site, a password-protected archive uploaded to something like YouSendit, for example), which would have allowed Mr Morel to better protect his valuable intellectual property. This is an explanation that will hopefully come out of the trial. My understanding is that Mr Morel also made the fundamental mistake of uploading full-resolution images to Twitpic, or at least at a size that was usable by the people who printed them.”

He concludes:

“Making these kinds of files public, especially in the case of images that are so valuable, is, to me, akin to leaving your keys on your expensive car, and it is not something that I would do if I owned an expensive car. In other words, Mr Morel behaved in an amateur way.”

Were Agence France Presse’s action wrong?

Back in April, I wrote that Agence France Presse had clearly used images it didn’t have the permission to use – read my column “Agence France Presse’s slap to photographers“. There is no doubt – and I do hope that the court will realise that as well – that the French news wire shouldn’t have used the pictures without first contacting Morel. And, in fact, judging by the court documents I have seen, Agence France Presse’s Ben Fathers knew that was the case as he tried to contact Morel several times that 13 January.

Again, without doubt, Agence France Presse is clearly in the wrong.

But so is Morel – up to a point.

Daniel Morel has been a photographer for more than a decade. He’s worked for the Associated Press, and at the time he took the Haitian pictures, he was under contract with Corbis – the world’s second largest stock agency. As Leroy writes, Morel made a conscious choice to distribute his photos through Twitter and TwitPic instead of contacting Corbis. Why did Morel do that? I’m not sure, and hopefully, it will become clearer as the court examine the case.

HOWEVER, one fact has been largely overlooked by both Agence France Presse and its co-defendants and Morel. While Agence France Presse argues that Morel granted an unlimited license by posting his images on Twitter, it remains as a fact that Morel never uploaded images on Twitter. Instead, he used a third-party service called TwitPic, which says in its terms and conditions that the images posted remain the property of their owners. Morel used Twitter only to post a link to his TwitPic images.

Consequently, Agence France Presse’s argument becomes invalid. Morel did not grant any license to third parties and the news service should have contacted Morel and gained his approval before distributing his images.

Now what?

The case, if not settled out of court before it reaches its conclusion, could set a precedent – redefining the notion of copyright of content posted on social networking sites. We will have to wait to see what transpires from the Southern District Court of New York.

However, Morel’s situation, as well as the intense debate that came out of Leroy’s comments, is highlighting one simple fact: photographers should not publish valuable images online without protection (a watermark, a copyright notice, etc.)

It’s a shame, to say the least. But as different cases in the UK have shown (all of them involving high-profile publications such as The Guardian, The Independent, or the Daily Mail) online theft of images is a fact – and until new technology allows for the tracking of such offenders, photographers will have to be careful of where they post their images.

In the meantime, we have to hope that one New York court will see that Agence France Presse is punished for its action and its “antagonistic” behaviour towards Morel.

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