In a lawsuit filed in U.S. District Court in New York, Agence France Presse (AFP) claims that it did not violate photojournalist Daniel Morel’s copyright by distributing his images from the scene of the Haitian earthquake because Morel had posted his photos to Twitter, via TwitPic. AFP argues that by posting to Twitter, Morel was bound by Twitter’s terms of service (TOS), and that he therefore granted “a nonexclusive license to use his photographs.” The relevant section in the TOS would appear to be this:
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).
As I reported on Saturday, AFP has sued Morel, charging him with “antagonistic assertion of rights.” I have since received copies of AFP’s complaint (pdf) and Morel’s answer (pdf). It’s a fascinating case, involving the question of how a journalist can transmit his work under difficult conditions without giving up his rights. (Last month I took down one of Morel’s photos from Media Nation after hearing from his lawyer, Barbara Hoffman of New York.)
The AFP suit, filed by attorneys Joshua Kaufman of Washington and Brendan LeMoult of New York, also charges Morel with “commercial defamation.” According to their complaint, Morel, through Hoffman, undermined AFP’s reputation even though the agency took steps to cease distribution of Morel’s work once Hoffman informed it that Morel’s copyright had been infringed. According to AFP’s suit:
Even though it believes it acted under an appropriate license, when AFP was contacted by Mr. Morel’s attorney indicating that he believed the publication of the photographs was a copyright infringement, AFP again acted in good faith to cease publication and distribution of the photographs and notified its subscribers that the photographs should not be published or distributed.
In response to AFP’s eight-page complaint, Hoffman submitted a 66-page rebuttal. I have not had an opportunity to read it in detail. But clearly the heart of AFP’s complaint revolves around Twitter’s TOS. Hoffman writes that Morel found himself working under difficult conditions after the earthquake and trying to find a way to transmit his photos. The manager of the hotel where he was staying helped him set up a Twitter account. She continues: “Mr. Morel had no prior experience
with Twitter, the social networking site and did not read the Terms of Service.”
Nor has any of us, I suspect. So I’m sympathetic to Morel on those grounds. On the other hand, if AFP really did act “in good faith” to halt distribution of Morel’s photos once it had been notified, it is difficult to understand why Morel kept pushing his claim.
Thus Hoffman also includes a long section aimed at proving AFP did not, in fact, act in good faith, taking 13 images from the TwitPic page of a Dominican named Lisandro Suero. Suero, she writes, had “pirated” the pictures, and AFP acted “willfully or with reckless disregard of Mr. Morel’s rights, in its rush to receive credit for the news-breaking photographs to the world” by failing to verify Suero’s bona fides.
Ironically, Morel’s photos are included in Hoffman’s filing, which is a public court document. So if you want to have a look at them, all you have to do is follow the link to her rebuttal, above.
All in all, a pretty interesting case.