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AFP Steals Photog's Pics and Then Sues Him!
Jerry Bennett wrote: Yeah. Will do. I'll make sure to follow up here tomm. Stay tuned Apr 27 10 08:04 pm Link The part of the law quoted as an example of "fair use" is used incorrectly as an example. That part of the law was specifically directed at copyright of written material at the beginning where limited portions of copyrighted material may be used for news. This has been extended to movies and films; but the operative word is "portions" and do not include any works in it's entirety. Use of a photograph is not "portions" and just because it's news does not make it "fair". An example would be the Zapruder film, which was copyrighted and the usage rights sold to Life. There was a case of "fair use" of charcoal drawings of frames for use in a book, because of the additional commentary and use of certain frames. But other uses have been protected even while the Zapruder family transferred the film to the National Archives and Records Administration, but the family retained the copyright. In Dec. 1992 the JFK act transferred by eminent domain, the physical film under law to the National archives, but the family still held the copyright until 1999 when they donated the rights to the Sixth Floor Musuem. See: David Wrone - The Zapruder Film: Reframing JFK's Assassination (2003) Apr 27 10 08:18 pm Link well, that was interesting. thanx all. Apr 27 10 08:21 pm Link I think that those who assume that any use of a copyrighted photo is fair use, if news reporting is involved, better do some more reading. First, there is no hard and fast rule as to what fair use is and isn't. Someone can claim fair use and the copyright owner can dispute that. Should the disagreement continue, short of a settlement, the issue is not resolved until fought in court. Those who have ever fought a major court battle know that, "right and wrong" is very often decided by who has the better legal team, not who is "technically right." Further, a news organization can not just "take" a photo and use it. There are issues of monetary loss to the copyright holder and issues of first publication. There are also issues involving use of a complete work, as opposed to use of only part of the work. This last issue gets very complicated in regard to a photo. I agree that the real mistake that the photog in question made, is in publishing the photos on Twitter. This is true in a number of respects. First is the TOS. Those who read such terms carefully, usually find that they not only give the site copyright, but also give them the right to "sell, assign, transfer, yada, yada, yada." That fact validates the opinion that a few here have expressed, in regard to Twitter being the party with a right of action against AFP. Additionaly, by publishing the photos on Twitter, the photog gave up rights with respect to first publication and potential monetary value. In short, the guy gave his rights away. I also doubt that Twitter decided not to take action, because of fair use issues. Rather, I believe that they weren't particularly concerned about the issue. A few photos of the Haiti disaster have no significant monetary value to Twitter and they certainly aren't worth a court fight with a major news organization over them. Sorry, but I'm not buying the advice of the "Model Mayhem Legal Team." Apr 27 10 08:28 pm Link MerrillMedia wrote: Or maybe they would want to avoid a PR issue. Such as trying to profit from a disaster like Earthquake in Haiti? or look bad by preventing the news of such a disaster from spreading? Apr 27 10 08:37 pm Link What I get from reading all this is that the MMPhotographers, who are normally rabid about denying fair use to models, MUAs, etc, have spun around on a dime here and now think that fair use definitely applies to big corporations who want to steal from a little guy. Apr 27 10 08:46 pm Link Ricardo Sevilla 2 wrote: Yup, could be either one of those two issues. Apr 27 10 09:03 pm Link He could use Twitter, but not email... hmm... Apr 27 10 09:31 pm Link Natalia_Taffarel wrote: Natalia, that's simply not correct. That's like saying that if I grab your photos which you have posted on modelmayhem, and publish them, without your permission, only Modelmayhem has a case, not the photographer. Apr 27 10 10:22 pm Link You can argue points of law (and your or others interpretations of it ) til the cows come home, but the final arbiter would be a judge in court. What should perhaps be pointed out is what should the photographer have done (and others in similar situations in the future) to obtain what he wanted 1. Recognition 2. $$$ In my opinion only he should have: A. Uploaded only very low res images to show what was available. (from reading further it seems that twitter does not have pictures but a separate site twitpics does. Check the difference here: http://help.twitter.com/entries/13920-f … -questions So twitpic TOS would apply not Twitter TOS) B had photographer copyright over the centre of the image to make it very difficult to remove. C. Had his contact details for offers for the high resolution pics. Apr 27 10 11:02 pm Link I think that there's some serious money to be won by the injured party and that injured party is gonna be the photographer. It seems he did NOT Twitter the images. He used TwitPics and that is a completely different service which has a T.O.S. that protects the copyright of the photographer - so said the commenters on the original article. Read the original PDN article, especially the comments there. Jerry Bennet wrote: I don't belong to and have not read the actual T.O.S. of Twitpics myself, but if it were me, I'd screengrab the TwitPics T.O.S. right now - just in case they change. Apr 27 10 11:12 pm Link For all of you pointing to "fair use" the fair use doctrine [at least in the US] can NOT be used to, or where it will, destroy the economic value of someone's work. The effect of a use claimed as fair use under that doctrine has at it's centre the effect on the rights of the copyright owner... and most especially the economic value. There is a running argument, in legal circles, as to whether or not a photograph can even, or ever, be used under a fair use claim exactly because it can not be used except as a whole and thus also can not be a mere sampling, quote, or illustrative extract as with written material. Studio36 Apr 27 10 11:44 pm Link Maybe I'm reading this wrong, but it looks to me like the whole issue of "fair use" or not doesn't actually apply. From what I see, the main issue is that they took his photos and distributed them through Getty without proper credit and, in some cases, taking credit for the photos themselves. Beyond that, how does AFP think that the Twitter TOS somehow transfers to them? They are not Twitter and can not claim any right to Twitter's TOS. So in that respect, the question becomes did Twitter sub-license the images to AFP or are they partners with AFP? If either of those, then the Twitter TOS does in fact cover it and he's screwed because it goes from being a "fair use" issue to just being part of the Terms of Service that he agreed to (whether he read and understood it or not). Be interesting to know if Agence France Presse and Twitter have a deal. As if I needed any more reason not to use Twitter. -=>D Apr 27 10 11:51 pm Link Ricardo Sevilla 2 wrote: That doesn't mean what you seem to think it means. Apr 28 10 01:29 am Link As to fair use [US] you all need to look at 17 USC § 107 § 107. Limitations on exclusive rights: Fair use [in part]...In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall includeâ (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Studio36 Apr 28 10 01:32 am Link Angela Michelle Perez wrote: Twitter was known to be a bad site to park your images from the beginning. It was even reported in mainstream media. Apr 28 10 01:44 am Link I remember seeing the Tweets posted. I'm almost certain it's the same guy. http://twitter.com/ramhaiti You'd have to scroll back to the day of or the day after and you see his email posted as having photos available. I don't remember seeing any photos posted, nor links to the photos. Apr 28 10 03:56 am Link BlackArts - Jenna Black wrote: While you're right, there is "right to privacy" laws that are legislated state by state that doesn't make this iron-clad Apr 28 10 04:36 am Link BlackArts - Jenna Black wrote: Actually, you probably wouldn't sue the crap out of her, because she is most likely about 19 - 20 years old with about 137 dollars in the bank. No attorney is going to take your case on contingency and you aren't (unless you are just dumb) going to pay him/her $300 an hour, to sue someone with no money. Apr 28 10 08:13 am Link This is why you post tiny thumbnails that they can't even use seriously online and make people go to your site for the big photo. Make the social networking thing work FOR you, not against you. Apr 28 10 08:14 am Link Ricardo Sevilla 2 wrote: No, it's not. publishing content online does NOT place it in the public domain, and i can't believe someone would even suggest something so preposterous. Ricardo Sevilla 2 wrote: so... twitter EXPRESSLY states that you retain your rights, and only grant them a license to copy and display the work (which is NECESSARY, given the method of distribution), and you assert that if someone else violates your rights, it was YOU who effed up? lightonpixels wrote: Twitter's TOS doesn't NEED to provide protection to the photographer. Those protections are built into copyright law. Ricardo Sevilla 2 wrote: This is clearly meant to indicate that if you shoot, say, a photo of a traffic accident that happened in front of a famous sculpture, the sculptor could not turn around and sue for infringement, even though the sculpture is visible in the photo; it's incidental to the footage that's being reported. MerrillMedia wrote: Ricardo Sevilla 2 wrote: or maybe it wasn't their concern because it's completely NOT their concern. They're not the gatekeeper to the rights of the images you post, and assuming they are is VERY dangerous. they have a license to reproduce the images you post, because if they didn't have that license, you could sue them for every browser cached image a viewer creates (if you had an imaginative lawyer). Apr 28 10 10:24 am Link regarding twitter's "right to sublicense", is there any more information on that? I'm betting there are restrictions, but that it has to exist for affiliates of twitter to post the content. edit: and if there's no other restrictions, do we know that twitter licensed the photos to the news outlet in question, or were they just ninja'd from the twitter feed? Apr 28 10 10:25 am Link Mask Photo wrote: You are forgetting that Twitter has language that includes a right to sublicense. If AFP lifted photos from a Twitter site, but didn't obtain a license from Twitter, Twitter has a cause of action. Once again, however, Twitter isn't likely to pick the fight, because it wouldn't be worth it to them. Apr 28 10 12:32 pm Link MerrillMedia wrote: YOU are forgetting that NOTHING in twitter's TOS states that the photographer gives up his/her rights, and in fact clearly states the opposite. Apr 28 10 12:50 pm Link I just realized something today that I didn't when I was reading this last night. They said he uploaded the photos to Twitter. But you can't upload photos to Twitter. So I searched for and found what his original Tweet was. What he did was upload his photos to Twitpic and then post the link in a Tweet. AFP screwed up on this one and their contention they were allowed to do it under the Twitter TOS will not hold up. Twitpic is not Twitter. They are different companies. It is no different than if he'd uploaded them to Flickr and then posted a link. The TOS of Twitter does not extend off-site to linked material. Even if AFP is a partner of Twitter, the only thing they could do under those terms is to show the original text of the Tweet showing the link. The photos are outside of that. Twitpic's TOS is nowhere near as invasive as Twitter's TOS: http://twitpic.com/terms.do That said, part of this is going to depend on exactly what he and his lawyer did after AFP complied with the cease and desist order they sent out. I think if he went too far in that regard, he could still be held legally accountable. It was also good to read that at least some organizations, like the Associated Press and Wall Street Journal, did the right thing and paid him for use of the photos. -=>D Apr 28 10 01:32 pm Link Curse you all for making me curious and thereby wrecking my productivity. It seems, from TFA, that the photos were uploaded to TwitPic (NOT twitter; you can't upload any photos to twitter; it's a text-only service). The TwitPic ToS (currently) say: "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 " NOTE that this does NOT give any indication of any right to sublicense. The twitter right to sublicense refers to the content that is submitted ON TWITTER. All you're submitting on twitter is a shortened URL to a location of your photos. If I were to post my portfolio's URL on twitter, would you all assume that I'm putting my entire portfolio in the public domain? faugh! UTTER FOLLY. Also note that the twitpic TOS explicitly states that they may sublicense to affiliated sites. Getty is not a twitpic affiliated site (unless my digging failed to uncover such, which could be possible). FURTHER note that, from TFA, "The Wall Street Journal, the Associated Press, and others did see Morel's tweet and offer him money" thus proving that SOME of the big boys KNEW that the photographer retained his rights, as indeed, he did. It seems that the basis of the lawsuit was that the photographer went after everyone who published the photos, and after AFP in particular, and AFP decided to sue him for being belligerent, and not because they were in the right in stealing his photos. Apr 28 10 01:39 pm Link DMHolman wrote: There's some discussion as to whether tweets are even copyrightable... There's some reason to assert that they may be considered "spontaneous utterances" which, apparently, aren't copyrightable. Apr 28 10 03:18 pm Link Mask Photo wrote: Let me try this again. According to the TOS, if you post pics on the Twitter site, Twitter acquires a license to use the photos. It also acquires a right to sub-license the photos. When those photos happen to be of a very newsworthy event, the right to sub-license has value. Since AFP apparently lifted the photos from Twitter's site, Twitter has a right to demand payment from AFP for using them without license, because their use is not "fair use." In spite of this, Twitter chose not to pursue the matter, but that is a choice, not a lack of right. Apr 28 10 06:56 pm Link Ricardo Sevilla 2 wrote: This is SO not correct. Yet another example of why not to take your legal advice from MM. Apr 28 10 07:15 pm Link Ricardo Sevilla 2 wrote: I side with Jake on this. There's no way that this meets ANY of the fair use tests. Apr 28 10 07:32 pm Link Luminos wrote: Apr 28 10 07:48 pm Link So I spoke with one of the Attorneys regarding this issue. Unfortunately the main attorney that I wanted to speak with wasnt available today. Without looking into the details, he just told me the following. "This situation is in a very grey area of the law. To me, it seems that this photographer MIGHT get something, but I bet it's not a lot. Not enough to cover his own attorney fees atleast. I would have to analyze the situation and research past rulings regarding similar cases. Fair Use is too broad and a ruling can fall on either party. I think whoever has more money can win this case. So i'd bet on AFP winning". Now, I do have lunch tomm with the main attorney I wanted to talk to...the expert I could say. I'll update tomm. -RS www.ricardosevilla.com Apr 28 10 08:43 pm Link Ricardo Sevilla 2 wrote: I rest my case. (Pun intended) Apr 28 10 10:19 pm Link MerrillMedia wrote: This is not true simply because you can not upload photos to Twitter. Twitter has no mechanism for uploading and displaying images. The photos were uploaded to Twitpic; which is not owned by or partnered with Twitter. Only a link to the photos was placed on Twitter. The Twitter TOS can not possibly cover content that is not on their site. Apr 28 10 11:48 pm Link Then the next step in the chain is to look at the TOS for Twitpic and what rights the photog may have given away, by posting the photos there. What doesn't change, regardless of the site involved, is that AFP "lifted" the pics, without permission and that the use doesn't qualify as "fair use." As to who will fight who, or not, its all a matter of choice and dollars. My opinion remains the same that the dollars will have more to do with the eventual outcome, than anything else. Apr 29 10 10:53 am Link MerrillMedia wrote: you are basically failing at everything and need to stop. Apr 29 10 11:20 am Link lightonpixels wrote: I think I may not agree with either of you. The TOS as posted above indicates that the individual posting the images retains his full rights but then goes on to grant itself a license and the right to sublicense. In this case, the only true entity with the authority to sue for violation of copyright is the owner of the copyright, since AFP obtained neither license of sublicense from the only two entities with the authority to grant such license. Apr 29 10 11:28 am Link Jerry Bennett wrote: If these facts are correct, then the photographer has a right to go after the pirate, since the pirate didn't get a license from anyone. However, anyone want to guess whether the shooter further screwed up, by not registering copyright? Apr 29 10 11:32 am Link Carter Hill wrote: wait, isn't that what I've been saying? (this would be the photographer) Carter Hill wrote: well, it seems like AFP doesn't have a leg to stand on, and is inventing a charge with which to bully the photographer. glamour pics wrote: Interesting point, and considering he was waist-deep in rubble at the time, I'd not be entirely surprised if he did register. that's hardly a screwup; more like a product of the circumstances, and prior registration is NOT a requirement for him to receive damages, though it may affect the judgment. Ricardo Sevilla 2 wrote: perhaps this could be due to a lack of registration? copyright law is pretty clear on statutory damages given proper registration (though i admit to only an armchair familiarity with copyright cases). Apr 29 10 12:24 pm Link A colleague said, and I'll clarify following: Interesting point, and considering he was waist-deep in rubble at the time, I'd not be entirely surprised if he did register. that's hardly a screwup; more like a product of the circumstances, and prior registration is NOT a requirement for him to receive damages, though it may affect the judgment. It is necessary for him to register prior to seeking damages, though he may not be able to obtain statutory damages (isn't the figure something like $10k per image?). I believe there's a short grace period after the infringing publication, during which you can register and still seek statutory damages, but I don't have a citation in front of me. anyone want to chime in (with a citation)? ====== I clarify: Timely registration is required to qualify for the statutory damages (up to $ 150,000 / image) and usually to get attorneys fees. And the brief period is following PUBLICATION, not following the infringement. It's a 3-month window. Without the timely registration, it's usually impossible to get a lawyer to take the case on contingency, and usually impossible to make the case worth doing. Apr 29 10 12:48 pm Link |
. Unless there are any attorneys here, I hope to bring back useful info for all of us to use. 
