A story concerning copyright in photographs circulated through Twitpic is making the rounds of the Internet. According to Reuters: “The case has garnered wide interest because it is one of the first to address how images that users make available to the public through social media can be used by third parties for commercial purposes.” This language is misleading; the case revolved around a violation of Terms of Service; terms that did not make reference to commerciality.
At issue is the unauthorized use by Agence France-Press (AFP) of the works of photographer Daniel Morel, a highly-acclaimed, Haitian-born photographer who was among the first to capture the devastation that following the earthquake in Haiti on January 12, 2010. From Reuters:
In the Morel case, the photographer put the Haiti images on Twitter, and they were then disseminated widely after an AFP editor discovered them through another Twitter user’s account … . AFP had argued that Twitter’s terms of service granted it the right to use Morel’s images. The judge, though, said that while the service terms do allow the reposting and rebroadcasting of users’ images in certain circumstances, such as “retweeting” them, it does not grant a license for commercial use.
More precisely, Morel posted his pictures to Twitpics and used Twitter to publicize the pictures.
The Twitpics Terms of Service dated to December 4 2009 (courtesy of the Internet Archive Wayback Machine) states: “By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites. All images uploaded are copyright © their respective owners.”
AFP did not meet the criteria of being an “affiliated site.”
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).
Tip: This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same. But what’s yours is yours – you own your content.
You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use
Again, AFP did not meet the criteria of those who “partner with Twitter …”.
The whole story is much more interesting (my thanks to Olivier Laurent, writing for the British Journal of Photography in April 2010.) Briefly, in the late afternoon of January 12, 2010 Morel posted his pictures to Twitpic. Within minutes, another individual identified as Lisandro Suaero, had downloaded the pictures and reposted them to his own account, claiming authorship of the photographs. AFP downloaded the pictures from Suaero’s account, licensed the photographs for further distribution via Getty Images, and gave credit to Suaero.
And then the story moves from interesting to disturbing. When Morel discovered that as a consequence of AFP’s actions, the photographs were circulating without his permission, he complained. Dan Kennedy, author of the blog Media Nation, writes that AFP’s response was to sue Morel for “antagonistic assertion of rights.” Kennedy obtained the AFP complaint and Morel’s defense; he posted these public documents at Media Nation. Morel’s lawyer Barbara Hoffman provides (in meticulous detail) an exact chronology of the events, including correspondence from members of the media who immediately responded to Morel’s pictures following their posting, and, tweets from AFP concerning the pictures. Morel’s reputation and the buzz caused by the photographs makes me wonder why AFP, a professional wire service for photographs, was so quick to take the photographs from Suaero’s account without authenticating their authorship. Twenty-two pages in, Hoffman gives an answer:
Upon information and belief, AFP willfully 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. No standard or traditional good journalistic practices were followed, practices particularly necessary to assure the authenticity of the content and information when the source is a social networking site. 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.
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? E-mails indicate that AFP was in contact with at least one AFP photographer on the ground in Haiti on January 12, 2010.
Upon information and belief, AFP was less concerned about verifying the authenticity of the Iconic Images because AFP knew the Suero images had been stolen from Daniel Morel, a well known resident Haitian photographer and therefore, notwithstanding the total lack of evidence that Suero was in Haiti to take the photographs, knew that the photographs were reliable images (paras 85-87).
In Morel’s defense document, the photographs are included. Many of the photographs are labelled “AFP/Getty/Lisandro Suero.” The next twenty-two pages describe the protracted effort by Morel and his counsel to have his name properly attributed to his work and control of the pictures returned to him.
Returning to the Reuter’s story, several issues remain to be settled. A trial is forthcoming.