Agence France Presse's slap to photographers

May 3, 2010 8:41 AM

Agence France Presse's slap to photographers. The AFP sues a photographer after using his photographs illegally: "On Monday, Agence France Presse filed a complaint in the United States District Court Southern District of New York against Haiti-based photographer Daniel Morel. Agence France Presse claims Morel engaged in an 'antagonistic assertion of rights' after the photographer objected to the use by AFP of images he posted online of the Haitian earthquake of 12 January."
posted by chunking express (44 comments total)

'antagonistic assertion of rights'

Imagine a human face aggressively banging itself into the bottom of a boot for all eternity.
posted by DU at 8:43 AM on May 3, 2010 [59 favorites]

I just love the phrase "antagonistic assertion of rights". It's like something you'd expect to see in the National Review about homosexuals.
posted by Pope Guilty at 8:48 AM on May 3, 2010 [7 favorites]

Dear 21st century humans:

All personal and professional responses are now to be categorized as either "total compliance" or a "slap in the face." Please make a note of it, and begin labeling your emails accordingly.

-- MGT
posted by hermitosis at 8:50 AM on May 3, 2010 [4 favorites]

The wonders of social networking: you can actually see video of Daniel Morel making an 'antagonistic assertion of his rights" on you tube.
posted by MuffinMan at 9:03 AM on May 3, 2010

WTF...

That's it, I'm not buying any more french fries....
posted by HuronBob at 9:03 AM on May 3, 2010

'antagonistic assertion of rights'

This is a thing? It sounds like a charge the police would level against a suspect when making a public statement about some questionable-use-of-force-by-an-officer type incident.
posted by quin at 9:05 AM on May 3, 2010

Dear MetaFilter:

Am I outraged because AFP used this guy's work without permission and then sued him for asserting his rights, or because this guy attempted to protect his intellectual property, which is not actually property because hey anyone can make a copy and what did he lose?

Please advise.

-Trying To Keep Up
posted by The Bellman at 9:09 AM on May 3, 2010 [7 favorites]

Not exactly on topic, but I once did a week-long job shadowing at the CBC in Toronto, and someone in the news department told me that AFP wasn't considered the most reliable. It was mostly used as a secondary, confirming source.
posted by The Thnikkaman at 9:09 AM on May 3, 2010

Writing on Twitter, Vincent Amalvy, a photo editor with AFP, tries to get Morel’s images. It’s 7:12pm. Two and a half hours later, at 9.41pm, the same photo editor emails Morel asking “do you have pictures?” Four minutes later, AFP uploads Morel’s 13 images, but from Lisandro Suero’s TwitPic account, crediting Suero.

From AFP's perspective, in an event like the Haiti earthquake, they stand to make much more money by publishing images as soon as possible without regard for rights. Act first and sort out the legal implications later. I'm just surprised that Corbis isn't involved since they work with Morel and stand to have lost the most money from this (since they probably take 60-70% of each sale of the photo).
posted by infinitefloatingbrains at 9:13 AM on May 3, 2010

Old Media: We can grab stuff from the web willy-nilly cuz if it's available it's free, but don't you dare try to stop us or do what we're doing or we'll sue.
posted by amethysts at 9:15 AM on May 3, 2010 [5 favorites]

> From AFP's perspective, in an event like the Haiti earthquake, they stand to make much more money by publishing images as soon as possible without regard for rights. Act first and sort out the legal implications later.

The author of the linked article concedes that. What's at issue is why AFP waited seven weeks to issue a KILL notice (removing the photos from access, notifying those who got them that they shouldn't use 'em) even though the attribution was challenged the day after they acquired them.
posted by ardgedee at 9:16 AM on May 3, 2010 [1 favorite]

According to AFP, Morel granted any third-party a non-exclusive license to use the images by posting them on Twitter. According to the micro-blogging site’s terms and conditions, says AFP, Morel granted a worldwide, non-exclusive, royalty-free license, with the right to sub-license others, to use, copy, publish, display and distribute those photographs.

AFP adds that “when Mr Morel posted his photographs on Twitter, he made no notation that he was in any way limiting the license granted to Twitter or third parties.”

Wow, bizarre.
posted by delmoi at 9:20 AM on May 3, 2010

The author of the linked article concedes that. What's at issue is why AFP waited seven weeks to issue a KILL notice

Because... forgiveness is easier to ask for than permission.
posted by MuffinMan at 9:24 AM on May 3, 2010

Anyone have PACER access to court records and want to post AFP's filing?
posted by joshwa at 9:25 AM on May 3, 2010

Aha! Twitter hate + copyright infringement = Metafilteriffic!
posted by Devils Rancher at 9:28 AM on May 3, 2010 [1 favorite]

The email exchange, published on Flickr, shows Leach answering that The Independent didn't know it had breached the photographer's copyright. 'We took a stream from Flickr which is, as you know, a photo-sharing website. The legal assumption, therefore, is that you were not asserting your copyright in that arena. We did not take the photo from Flickr, nor present it as anything other than as it is shown there. I do not consider, therefore, that any copyright has been breached or any payment due,' Leach wrote.

Leach also added: 'I am puzzled about what you think we may have done wrong or if anything what your loss or claim would be.'

What
posted by niles at 9:29 AM on May 3, 2010 [4 favorites]

". According to [Twitter's] terms and conditions, says AFP, Morel granted a worldwide, non-exclusive, royalty-free license, with the right to sub-license others, to use, copy, publish, display and distribute those photographs."

Leaving aside the conflation of Twitter vs. TwitPic , uploaders are granting that license to Twitpic, not to any Tom, Dick, or Harry who wants to use the images. Only TwitPic, as the licensee, could have granted a sub-license to AFP. I don't see AFP alleging that Twitter or TwitPic granted them a sub-license...

I have no idea how AFP's lawyers could have signed off on this.
posted by joshwa at 9:31 AM on May 3, 2010 [5 favorites]

"[Honest and] antagonistic assertion of rights" is actual language sometimes used in actual lawsuits - it's a necessary thing in a lawsuit, as opposed to when there's a collusive suit where there isn't a real issue at stake - but to say the least, "antagonistic assertion of rights" is not a cause of action unto itself.

As far as I know. This is weird. I'd love to see these pleadings.
posted by Sticherbeast at 9:31 AM on May 3, 2010

Jeez, I have worked for newspapers and then a news service for many years, and if we took an image without permission, we would be in a shitload of trouble. It's theft. AFP may rationalize that it's easier to pay a penalty for doing so (and I happen to know of a major American TV program that does this routinely) but it's still wrong and a lot of companies absolutely forbid it.

It's HIS work. this is theft. And then they sue him? Christ.
posted by etaoin at 9:32 AM on May 3, 2010 [1 favorite]

Er, I'm not sure that's a real claim.
posted by 1adam12 at 9:32 AM on May 3, 2010

'We took a stream from Flickr which is, as you know, a photo-sharing website.'

Yes, in the same way the image on the front page of the newspaper is being shared with the readers.
posted by furiousxgeorge at 9:34 AM on May 3, 2010 [1 favorite]

I'm happy to toss a few bucks to Morel's legal defense/offense fund and watch the fun as AFP gets spanked and humiliated.
posted by twsf at 9:40 AM on May 3, 2010

Ah, the old 'pretending to be stupid' defence.
posted by unSane at 9:41 AM on May 3, 2010

I wish there was more direct reporting on this case. It appears that AFP's counterclaim against Morel is for commercial defamation. I believe the "antagonistic assertion of rights" nonsense is a misread of the pleadings.

That said, the commercial defamation business still sounds like bullshit, going off of the information we have here. Is AFP claiming that Morel's suit itself constitutes defamation? If so, AFP is either wearing-a-Napoleon-hat-and-hitting-yourself-with-a-mallet insane, or this is a SLAPP.
posted by Sticherbeast at 9:45 AM on May 3, 2010

Filings can be found here.

It is indeed filed as 'commercial defamation' which, considering how far out of bounds AFP acted, seems preposterous.
posted by infinitefloatingbrains at 9:56 AM on May 3, 2010 [1 favorite]

AFP's Complaint (PDF)

Morel's Answer to Complaint (PDF)

Worth the ~$10 spent on PACER to retrieve them? Hopefully.
posted by joshwa at 10:05 AM on May 3, 2010 [7 favorites]

Thanks, infinitefloatingbrains.

I like this bit from AFP's brief at 3: "Morel posted several photographs on Twitter in full resolution and with no limitation on their use." Here, AFP provides a false statement to the court. Morel posted the pictures to TwitPic, and not to Twitter. If AFP wishes to argue that one loses all copyright protection by dint of even posting a link to the item on Twitter, then that is certainly a new depth of absurdity for them to plumb. I guess this is self-serving, though: AFP apparently argues that, since Reuters as a Twitter feed, that Reuters no longer has any copyright to its stories. Hooray!
posted by Sticherbeast at 10:05 AM on May 3, 2010

Sticherbeast, that was my first thought, too; lots of columnists link their newest columns through Twitter. Does my clicking on them mean I own them now?
posted by emjaybee at 10:14 AM on May 3, 2010

Sticherbeast: "Is AFP claiming that Morel's suit itself constitutes defamation? If so, AFP is either wearing-a-Napoleon-hat-and-hitting-yourself-with-a-mallet insane, or this is a SLAPP."

They're claiming that his letters to the news organizations that published the images, in which he notifies them that AFP stole the image, are what is being considered defamatory:

"25. Defendant, through his attorney Ms. Hofmann, has sent correspondence to third
parties throughout the country, including in this District, and including Plaintiffs customers.

26. The correspondence sent on behalf of Defendant has made statements of fact concerning Plaintiff and Plaintiffs business that are false and defamatory of the Plaintiffs business reputation and practices.

27. Specifically, Defendant has made the statement to numerous third parties, including AFP's subscribers, that AFP is infringing upon Mr. Morel's photographs and that AFP did not have a license to distribute Mr. Morel's photographs.

28. The statement that AFP acted without a license and infringed Mr. Morel's copyrights is false because, as explained above, Mr. Morel did provide a non-exclusive license, through Twitter, to third parties, including AFP and its subscribers.

29. Defendant, through his attorney, has made these statements to numerous third parties with knowledge that they were false or with reckless disregard of whether they were false.

30. Plaintiffs counsel pointed out the Twitter terms of service to Defendant's counsel, but, upon information and belief, Defendant's counsel, on behalf of Defendant, has continued to make the false statements.

31. These false and disparaging statements are defamation per se because they reflect on Plaintiff s business reputation and business practices.

32. Furthermore, these false and disparaging statements have caused damage to Plaintiffs business reputation and its customer relationships. In addition to damaging Plaintiffs reputation, Plaintiffs customers have understandably requested indemnification, which wil result in direct monetary damage to Plaintiff in defense costs."

Yep, sounds like a SLAPP to me.
posted by joshwa at 10:21 AM on May 3, 2010 [1 favorite]

On one hand, I agree with the photographer.

On the other hand... I think we could use the precedent to overthrow the system.

VIVE LA TWITALUTION!
posted by blue_beetle at 10:24 AM on May 3, 2010

We took a stream from Flickr which is, as you know, a photo-sharing website.'

That's so dumb it hurts. Every single photo on flickr has a license printed right under it. Every. Single. One.

And this is why mine all say "All rights reserved." It's not that I think my pictures are all that, or that I wouldn't let some individual use them free if they asked nicely. It's just that they're mine, and I reserve the right to make decisions on how they're used and by whom. I see no gain from preemptively giving away my rights to my own work.
posted by drjimmy11 at 11:31 AM on May 3, 2010 [4 favorites]

AFP: Agence Freetard Press
posted by Xoebe at 11:41 AM on May 3, 2010

This is particularly rich coming from the folks who sued Google for indexing their site.
posted by Horace Rumpole at 11:48 AM on May 3, 2010 [2 favorites]

Woah, I knew something like this might happen. Morel's twitpic's we're retweeted like mad (I recall even commenting on some of them), and later I saw people retweeting that other accounts twitpic links. Why on earth did the KILL call take seven weeks?
posted by dabitch at 12:10 PM on May 3, 2010

So in order to defend their actions, AFP's legal counsel is taking a position that's even more extreme than that of the Pirate Party? Wonders never cease.
posted by Kevin Street at 1:55 PM on May 3, 2010

dabitch

Woah, I knew something like this might happen.

I get premonitions like that all the time... and am consistently amazed by my prescience. :-p
posted by The Confessor at 2:03 PM on May 3, 2010

I just read on TorrentFreak that Fox News recently used photos without permission too. Link
posted by a womble is an active kind of sloth at 2:16 PM on May 3, 2010

Well, that's one (more) argument for using Flickr's post-to-Twitter service instead of TwitPic; it at least makes the licensing pretty clear.

It sounds like AFP's argument, such as it is, is that uploading to TwitPic carried with it implied permission for anyone to use it, either due to the way TwitPic's TOS is written (which is dumb, since the TOS would seemingly govern the user/TwitPic relationship and not the user/anyone-else relationship) or because of the lack of any other clear licensing.
posted by Kadin2048 at 2:36 PM on May 3, 2010

Twitpic's TOS couldn't be any more clear.

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.

Unless AFP is trying to argue they are a Twitpic affiliated site (such as Twitter), then I don't see how they have a leg to stand on for taking the photos and using them however they like. In fact, that they are arguing they have the right to do what they did is just completely insane to me and sounds exactly like the people I catch using my photos as backgrounds on their MySpace page ... "But it was on the internet, so that means I can take it and use it!"
posted by Orb at 2:49 PM on May 3, 2010

Every single photo on flickr has a license printed right under it. Every. Single. One.

When you view it at Flickr. There are other ways to view Flickr images such as recent photos by MeFites or the Hive Mind viewer showing pictures tagged with Copenhagen & bicycle

In the photo privacy settings, you can only say "no one" "friends & family" "contacts" or "anyone". There's no way to say "only on flickr.com, but not on other websites through RSS or the flickr API". Maybe that's needed.

A copyrighted photo with privacy="anyone" can show up at the panda vomiting a rainbow. Is putting a widget that pulls up such a photo on another site "copying?" Flickr's rules are that you have to put a link from an image appearing somewhere else to the Flickr page and there's no suggestion that wasn't done & there's no suggestion that wasn't done here.
posted by morganw at 3:33 PM on May 3, 2010

The strange thing is that neither party's brief has any mention of the TwitPic TOS, but instead only refer to the Twitter TOS.

If I were defense counsel I'd be all over that.
posted by joshwa at 3:44 PM on May 3, 2010 [1 favorite]

For me, the thing that pushes AFP's actions over the edge into clearly indefensible territory is that they sold Morel's pictures. They gave him credit but took the money for themselves, which pushes this past somebody copying a photo for their own use, or using widgets like the panda one. I think it would still be wrong if they gave him the money they earned from the photo, since he didn't authorize them to sell it in the first place.
posted by Kevin Street at 4:00 PM on May 3, 2010

The strange thing is that neither party's brief has any mention of the TwitPic TOS, but instead only refer to the Twitter TOS.

Yeah, that's weird, but it isn't like the Twitter TOS is any less clear than the one at Twitpic. Twitter has the right to send out Tweets to the places they send them, but the content is still owned by the Tweeter themselves. Which is all silly, seeing as what was posted on Twitter were links to photos posted elsewhere (Twitpic). Like someone upthread said, since news outlets post links to their stories on Twitter, does that mean we can all copy their stories and post them on our blogs in their entirety? Yeah, I think not.
posted by Orb at 5:04 PM on May 3, 2010

AFP: All Fotos Permissible
posted by bwg at 6:50 PM on May 3, 2010