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

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