Monday, October 4, 2010

Morel v. AFP, AFP v. Morel - Which Way Blows the Wind?

Much has been said critical of Agence France Presse (AFP), and Twitter (and the unrelated yet seemingly related site TwitPic), in the case where, in the early hours following the devastating earthquake in Haiti, photogapher Daniel Morel "tweeted" 13 of his photographs to the outside world via the TwitPic network, and AFP distributed those same photographs to their worldwide network of customers, without compensating Morel for their use of his photographs. To date, much of that criticism has been directed towards AFP and TwitPic/Twitter, admonishing them because they "stole" the photographers work.

To the contrary.

(Continued after the Jump)

Morel signed up for a TwitPic account, which is free, and which has a lengthy set of terms and conditions under which he may use the account, and further, what TwitPic may do with material he transmits across their network (text or visuals). He agreed to these terms and conditions. Whether he conveniently forgot what he agreed to, or whether he never read them before clicking the metaphorical "I accept TwitPic's Terms and Conditions" button, the photographer is in the wrong. TwitPic has a network, and the tangent to TwitPic has a network, Twitter, which is bearing the brunt of this suit, and alleged wrong-doing. They both provide the service for free, for reasons that are mostly unknown right now. It may be that they are mining data from tweets about trends in society, age groups, or otherwise taking the pulse of the collective consciousness, and that may be a marketers dream data set. However, the Twitter network spends millions of dollars a year to operate itself, and in exchange for making that multi-million dollar network available to it's users, Twitter gets rights to content it carries over it's proprietary network. Their conveyance of those rights to third parties - in this case AFP, is perfectly within the bounds of their rights, and Morel is out of line.

Jean Francois Leroy, the Director of Visa Pour L'Image has a similar take on this. Over at Duckrabbit, (here) they use similar language - "AFP took Morel’s pictures without the photographer’s permission" and "they thought the photos belonged to somebody else". The operative word in the first quote is "took", and it's wrong. "Took" implies without permission, and they make it clear that's what they meant, when they say just that. The fact is, Twitter's T&C give AFP permission, granted to them by Morel, when he accepted them as a condition of his use of Twitter.

Leroy was quoted as saying:
"Anyone who puts images on Flickr or on Twitter, and then sees them being used, well too bad for him… a photographer should never put his images on a social networking site. If you put your image on Twitter or Flickr and find that it’s been stolen by someone else, well… tough. You can’t ask me to defend you. What I’d like is for all photographers reading this is that they stop putting images on such sites."
The only objection I would have to that quote is that Leroy characterizes the action as "stolen", and, as I have detailed above, AFP did NOT steal them, they have a license (permission) to use them. Otherwise, Leroy is spot on.

What if Morel had been smarter about his images, and used the internet to transmit his images to, say, a service like Photoshelter, where people can access and license images immediately, and which are search-engine friendly so the photos get found easily? They might not have seen the distribution and publication depth and breadth that they did because AFP has thousands of subscribers worldwide, but Morel would have maintained control of the licensing of his images, and likely profited significantly from controlling his rights.

I stand with Leroy, and common sense - don't use free internet services when your own intellectual property is at risk. Not only do you risk losing control of your work, but also, it's just not professional.

For those of you curious, here are the respective Terms of Service (i.e. the terms under which you may use the service, and further, agree to):

From Twitter's TOS:
- You may use the Services only if you can form a binding contract with Twitter

- The Content you submit, post, or display will be able to be viewed by other users of the Services and through third party services and websites...You should only provide Content that you are comfortable sharing with others under these Terms.

- 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).
- 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.

- Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

- We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.
From TwitPic's TOS:
- By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on or affiliated sites

- you retain all of your ownership rights in your Content. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service.
What part of that's not clear? Photographer “A” delivers images to party ”B” (TwitPic and then Twitter) and in doing so, accepts terms expressly providing that party “B” has the right to sublicense his work to third party/ies “C”, then the photographer must abide by terms to which he/she agreed. As to Party "C" being Lisandro Suaero, who downloaded the images from TwitPic and reposted them on Twitter under his name (see FastCompany article here for this gem of information), nothing in TwitPic's terms require photo credit, let alone, an accurate photo credit. Setting aside Suaero's ethical breach for taking credit for someone elses' work, AFP has obtained their rights from Twitter who legitimately got them from Twitpic who legimiately got them from Morel. AFP did the right thing, as they learned that Morel was in fact the photographer, and not Suaero, so they corrected the photo credit to attribute Morel. Morel is not some newbie, or someone unschooled in how to transmit photographs - he used to be an employee of the Associated Press as a photographer, so any claims of "I didn't know..." will, for me, fall on deaf ears.

Any questions?


AFP sues Morel for defamation (PDF)

BJP - AFP v. Morel: The debate rages on

BJP - AFP v. Morel: The Important Questions

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.


Anonymous said...

Great and informative post.

Reading your excerpts of the Twitter TOS leaves me with a question however. Photographer A posts his photos to his own blog (which he hosts on his on servers) and posts a link on Twitter. While Twitter can resell the content - in this case the link - it would not be able to license photos. Is that correct?

John Harrington said...

Correct. Twitter is only entitled to license out what you post - in this case, just the link.

- John

duckrabbitblog said...

John why don't you read the transcript of the court case?

AFP's laywers are NOT arguing that TWITPIC's terms and conditions gives them a license to sell the photos.

AFP argued that Twitter's terms apply because TWITPIC is linked to it.

Umm, let's see what the judge made of that:

'THE COURT: So let's see. You claim that the two
23 different terms of service have to be read together.
24 MR. KAUFMAN: Correct.
25 THE COURT: But isn't that contradictory to how you
(212) 805-0300
1 interpret the Twitter terms of service?
2 MR. KAUFMAN: I don't see how.
3 THE COURT: Isn't your best argument that it is
4 ambiguous? What do the Twitpics terms say?
5 MR. KAUFMAN: They don't discuss this at all. They
6 are not contradictory. They have -- they talk about language,
7 but they don't talk about third-party uses. It is silent as to
8 that. They just don't refer to it. There is no contradictory
9 language. They talk about you own your copyrights and other
10 kinds of things like that, but they don't discuss the reuse
11 aspect of it.
12 And, again, as we pointed out in our footnotes, your
13 Honor, this is not a unique interpretation of AFP for the
14 purposes of this motion. Again, the court is allowed to take
15 judicial notice of what's out there. People are re-twitting
16 and re-Twitpic'ing pictures by the hundreds of thousands a day.
17 This isn't just something that, all of a sudden, out of the
18 blue, we are coming up with. This is a regular, constant
19 occurrence that tens of thousands of people, hundreds of
20 thousands of times a day are also interpreting it the same way,
21 for better or for worse, but they are.
22 THE COURT: Is that somebody else on Twitter like
23 Suero?
24 MR. KAUFMAN: Suero, yeah.
25 THE COURT: Right? Suero, a thief, right?
(212) 805-0300
1 MR. KAUFMAN: Suero took --
2 THE COURT: That's your argument?
3 MR. KAUFMAN: No, other people are allowed to --
4 THE COURT: So the multitude is doing it; therefore,
5 it is okay.
6 MR. KAUFMAN: No, no.
7 THE COURT: It was Bertrand Russell who said you
8 shouldn't follow the multitude into evil. Remember that?
9 MR. KAUFMAN: Unfortunately, I don't read enough of
10 Bertrand Russell.
11 THE COURT: He was one of the greatest philosophers of
12 the 20th century.
13 MR. KAUFMAN: I know who was, but -- I certainly know
14 who Bertrand Russell was.
15 THE COURT: It is worth the read.
16 MR. KAUFMAN: Yes, your Honor.'

peter krogh said...

I don't see how the Twitter TOS is relevant. You can't upload pictures to Twitter, and they don't claim any license to linked material.

The way I read the TwitPic TOS, there is a very broad license for Twitpic to do whatever it wants with the photos, and that extends to its successors and affiliates.

I don't think users have the same unlimited license.
The only broad license to redistribute is *within the service itself*, unless TwitPic has actually formally licensed the image to a third party (which it seems to have the right to do, by my reading).

Unless AFP has a contract with TwitPic, then it would be limited to use the photos "through the functionality of the Service and under these Terms of Service". I don't see where these TOS let a simple user reproduce the content outside of TwitPic.

Of course neither of us are lawyers.

bruno said...

I don't see how telling a photographer today to stay away from social networks can be seen as part of 'best business practices'. Let alone labeling it 'unprofessional'.
Moreover, your blog is a free internet service provided by Google. Can we now suggest AFP and Getty to come over here and scrape the images of your blog?

Augie De Blieck Jr. said...

My reading of the TOS, as well as many others, is that they are there to allow Twitter to have open feeds to third party applications. They're there so that TweetDeck and Tweetie (now "Twitter for iOS" something or other) and all the other third party applications can freely "redistribute" your tweets outside the website and out onto your phone or iPad.

True, the language is broad enough to be interpreted by a court of law to mean that Twitter can take everything you post there and publish a book without paying you, or sell your pictures without recompense, but the "social contract," if you will, is that we authorize Twitter to redistribute our tweets so that everyone using Twitter can see them.

That all said, it's better to be safe than sorry, I suppose, and just not post anything interesting where others may see it in the hopes of promoting your work to larger groups. Photography: It's all about the compromises.

David Riecks said...

I guess I missed the part where AFP is an "Affiliated Site" of Twitpic. When did that happen? If it didn't, then I don't see how AFP claims a right to use the images. Twitpic' TOS state, "Twitter gets rights to content it carries over it's proprietary network. Their conveyance of those rights to third parties - in this case AFP, is perfectly within the bounds of their rights, and Morel is out of line."

It's not clear if you can only use Twitpic if you have a Twitter accont (they have OpenID as an alternate method on their sign-up page), so I don't buy the argument that Twitter's TOS has any relevance in this case. I'm not in disagreement if AFP wanted to reuse Morel's "tweets" (the text he posted on Twitter). However the images are on a different service, which is not owned by Twitter.

In my opinion, the bigger issue is what Suero did in misrepresenting the images as his own. If Morel had added CMI (Copyright Management Information) via embedded photo metatadata, then either Suero removed this or AFP ignored it. Twitpic is one of the few services that does preserve photo metadata (XMP, IPTC, Exif, etc.), so it would have been there if Morel had added his contact info, etc. From what I've read, Morel uploaded to Twitpic, and send out a Twitter post with a link to Twitpic. Suero downloaded the images and reposted on his how Twitpic account and then contacted AFP, who then used and licensed the images to others. What we don't know is if Morel had embedded copyright notice, contact info, etc. Whether Suero removed this, and what AFP saw in the images they distributed.


Anonymous said...

Articulate opposing viewpoint:

John Harrington said...

>>I don't see how telling a photographer today to stay away from social networks can be seen as part of 'best business practices'.

I didn't say "stay away" in general, but to avoid using it as a conduit for their images. I use Facebook/Twitter/etc for all sorts of things.

>>>Moreover, your blog is a free internet service provided by Google. Can we now suggest AFP and Getty to come over here and scrape the images of your blog?

No. That would be a breach of my copyright.

- John

Anonymous said...

It seems that most forget that Morel posted his images under "extenuating circumstances." The fact that Morel could even photograph while devastation was occurring around him is an act of courage. A lot of greed occurred in getting "first hand news" images out to the world (including the sad fact that another photographer stole another's work and tried to claim ownership). We have some moral issues here.... The judge was right in his Bertrand Russell quote.

Mark Loundy said...

This is not about what Twitter did with the images, it's about what AFP did with the images. I'm not aware of AFP agreeing to any licensing whatsoever in this instance.

--Mark Loundy
Twitter: @MarkLoundy

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