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News Wire Allegedly Steals Iconic Haiti Photo, Then Sues Photographer

Photojournalist Daniel Morel shot an iconic image of a shocked woman looking out from the rubble moments after last January’s earthquake in Port au Prince, Haiti. Within an hour, Morel jumped on Twitter to share 13 high resolution images he had uploaded on Twitpic. By the next day, the photo of the woman was picked up by Agence France Presse (AFP) and Getty Images, was run on the cover of several publications and websites.

But Morel said he never authorized the news wires to distribute his images. In fact, several of his images were credited to another person, Lisandro Suero of the Dominican Republic, who reportedly has no photographic background. However, Suero tweeted Morel’s images without the photographer’s permission, and claimed copyright as his own:

And so began a legal storm.

Now Morel is being sued by AFP after he sent them cease and desist letters that the agency calls an “antagonistic assertion of rights.”

According to court documents, AFP claims that they did not infringe on Morel’s copyright and is suing Morel for “commercial disparagement,” as well as “demanding exorbitant payment.” AFP says that Twitter’s Terms of Service allowed for them to use, copy and distribute the image, and that Morel did not specify limits on how the photo should be credited.

Morel responded, saying that he was not familiar with Twitter’s TOS, and maintains that the images were stolen from his account without his permission, distributed and sold by the agency, which then “induced” other publications to violate Morel’s copyright. In a counterclaim to the agency’s complaint, Morel’s lawyer, Barbara Hoffman wrote:

To the extent that under the circumstances a specific intent in posting the images on Twitter can be attributed to Mr. Morel given the circumstances, … he posted his images online and advertised them on Twitter in the hopes that his images would span the globe to inform the world of the disaster, and that he would also receive compensation and credit as a professional photographer for breaking news of the earthquake before the news and wire services.

Some publications, including The Wall Street Journal, NBC, and the Associated Press contacted Morel to exchange compensation for his permission to publish. Others did not.

In order to enforce his copyright, Morel sent several cease and desist notices to several publications.

It seems that the case really boils down to the semantics of the Twitter TOS.

What might be worth noting is that the court documents from AFP frequently cite Twitter’s TOS, which mostly regards the text in Tweets, and does not extend to content linked to (otherwise, entire sites’ content might be considered royalty-free). Morel uploaded on TwitPic, which has a separate Terms, and is an entirely separate entity from Twitter.

Media Nation blogger Dan Kennedy posted PDFs of AFP’s complaint against Morel and Morel’s answer.

Whatever the verdict, this suit may change the manner in which photographers and journalists transmit their data via social media, even in difficult emergency situations like post-quake Haiti.

Do you have legal insight, experience with copyright infringement, or any thoughts about social media and the TOS?


 
 
  • kentsparkman

    Does AFP have a partnership with twitter? if not, then twitter's TOS does not allow for use by AFP — according to the TOS at twitter:

    “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…”

    “Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter,…”

    Seems to me that if a previous partnership between AFP and twitter did not exist, then there is a serious problem with AFP just grabbing the images.

    That is of course if the usage even falls under the jurisdiction of the twitter TOS and not that of twitpic.

    Twitpic's TOS is even more restrictive on 3d party use. (basically not allowed)

  • http://twitter.com/ryusen Zarli Win

    If you have enough money you can sue for anything.. ask Apple

  • guest2a

    If you are posting images online for the public to view, you MUST have a clear cut determination of what happens to your images once they are uploaded. NO site can claim ANY sort of right over your final word to share your images with news organizations and other publications, used for profit. Whenever you sign on with a social networking site, etc, make sure to red the “terms and conditions.” Some flickr groups state that your image can be used once you post . . . . . yeah . . . . right! They do so by making newbies feel as if they are great photographers and suddenly important.

    Morel's case is just another bum rush. There should not be any “terms and conditions”that automatically take away the rights of a photographer, JUST because you happened to post them on a social network photo page, etc. Neither Twitter, nor any other agency/entity should ever have the right to determine an image's use to 3rd parties etc, on the photographer's behalf, unless the photographer agrees.

  • http://twitter.com/Xurumei Al Lyle

    It doesn't make it right, though, does it?

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  • kenneth okawa

    Why the hell did he post hi res, unwatermarked images in the first place? That's asking for them to be pilfered. Morel may be shit-out-of-luck if he did not register the images with the USCO within the specified time period.

    What this is, is a lesson to all photographers and wanna-bees who want to derive income from the images they create. The first lesson: 1. Don't post hi-res, unwatermarked and uncaptioned files online. 2. Don't let some other company host your images, especially your high-res files. Not reading their TOS, in which in nearly every case gives them the right to distribute your content freely, is not excuse. If you are serious about the profession, you should be hosting images on 'YOUR' own 'SECURE' site. 3. Register your images promptly upon publishing them, regardless of the value you perceive them to have, especially those that are created from a unique, isolated and/or exclusive moment.

    If you ignored steps 1 & 2 you have no legal leg to stand upon to be compensated for the images you created and “shared”.

  • jimdean

    No way would I ever, ever, ever post that image to anything. That's a keeper you file and get paid for. As for the TOS, the twitpic terms basically say they have the right to distribute the photo, but that's it. No blanket, “use it down the line” clause. It even has a phrase that pretty clearly indicates that no reuse is allowed.

  • Sarah

    i wonder if the woman being photographed gave her permission, can of worms right there!

  • JohnONolan

    Twitter's terms of service are actually completely irrelevant in this case. The image was hosted on Twitpic, the fact that it was linked from Twitter means nothing. So if we examine the Twitpic terms of service then, as Kent said, we see that the uploader retains ALL copyright.

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  • http://www.kbledsoephoto.com Kaitlin

    This is insane. I agree that the man shouldn’t have posted it without watermarking first, not to mention not have uploaded a high resolution file. This is just asking for it. Although- I do agree that if he might have been under time constraints.

    However- I don’t agree with Sarah’s opinion about the woman. Photography law states that if you are in a public place, anyone can take your photograph. Obviously this woman was not thinking at the time, due to the horrible tragedy that affected her, but any photographer could have taken her picture, and she would have absolutely no grounds to stand on if she ever decided to take it to court.

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    this is really bad……..
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  • RedRiderPDX

    Shame on AFP and other commercial entities that attempt to usurp photographer’s rights and deny payment!

  • http://www.facebook.com/BigDaveP David Portass

    Depends where in the world you are and where it’s being published. In the UK photos can be used for editorial purposes without needing the subjects permission in the form of a model consent. However they do still need the photographers permission to publish it (I believe).

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