#04: AFP, OGL and CC-A: big questions for photography and the internet

Screengrab showing a photo of the Haiti earthquake by Daniel Morel, as posted by a third-party on Twitpic

In my previous post about the government of Ecuador declaring a state of emergency via Twitter, I posted some photos of the events there that had been posted on Twitter.

Today there are some other interesting stories around copyright, photography, Twitter and the internet on the radar  – in relation to both development and art – so I thought I’d do a quick round-up, while they’re all developing stories, as it were. All of them raise big questions about how we use photographic imagery online and how the law is struggling to keep up with technology and the use of social media.

Twitpic versus AFP/Getty

First up is the case of Haitian photojournalist Daniel Morel, who is currently in litigation with the news photo agency Agence France Presse (AFP). The background to this case is being well-covered by the British Journal of Photography, with plenty of comment from other commentators around the blogosphere (including Duckrabbit, APhotoEditor, and Russian Photos Blog to name but a few). But essentially, the story goes thus:

Daniel Morel was in Port-au-Prince when the massive earthquake struck on 12 January this year. A few hours after the quake, despite the interrupted communications, he managed with the help of friend who was already on Twitter, to create a Twitter account and post a few images via Twitpic, under the username @photomorel. They were amongst the first images to emerge of the trauma that Haiti suffered that day. They weren’t titled or captioned; they were raw and traumatic.

Morel’s images subsequently appeared, very quickly, on the websites and front pages of media organizations around the world,  but credited to AFP/Getty and the wrong photographer (another person, who had downloaded Morel’s images from Twitpic, then uploaded them again, claiming they were his).

When Morel found out about this, he contacted AFP and asked them to refrain from using the images. They responded by issuing a notice to their affiliates asking them to correct the usage credit, but argued that by posting the images on Twitpic, they were somehow in the public domain, and therefore AFP could use them without compensation. Morel instigated legal action, which AFP responded to by issuing counter-action, accusing Morel of, bizarrely, ‘antagonistic assertion of copyright’.

Several months later and Morel vs AFP is now being heard in an American court. Lots of detailed legal debate over wording of terms and conditions has begun. But at the heart of AFP’s case seems to be two fundamentally worrying claims:

Firstly, that although Twitpic and Twitter are separate legal entitities, Twitpic could not exist without Twitter, and therefore Twitpic’s terms and conditions are superceded by Twitter’s. They contest that while Twitpic’s T’s and C’s assert that copyright and IPR remain with the contributor, Twitter’s T’s and C’s do not, and that it is Twitter’s conditions that therefore apply.

Now, it seems to me (as a reasonably educated person and photographer, but admittedly not a lawyer) that the T’s and C’s of Twitter‘s service are clear – by posting content to Twitter you grant Twitter a worldwide, non-exclusive to redistribute your content to their partners and affiliates, but you retain the Intellectual Property Rights and copyright in your content. As far as I can see, AFP is not a partner or affiliate of Twitter or Twitpic, so it’s therefore hard to see how this argument can stand up.

Secondly, and if anything, much more worryingly, AFP seem to be also claiming that as there was no Copyright Management Information embedded into Morel’s images, there was therefore no reason to stop AFP taking them from Twitpic and licensing (i.e., selling) them to third parties. As Duckrabbit put it:

“What AFP are arguing is that any picture on the web that doesn’t have the name of the photographer actually on the photograph is fair game for them to take and sell….

If AFP/GETTY win this case then no photograph is safe on the web unless it is watermarked. Why?  Because as I demonstrated in an earlier post anyone can take a photograph from one place on the web and re-post it  somewhere else on the web, removing the photographer’s credit. That would be an act of theft. Despite that photo agencies would then be free to take that stolen image and sell it with impunity because the name of the photographer had been removed by somebody else. In effect they would be free to repeat what they did to Daniel Morel.”

If this is indeed what AFP are arguing, and it is found to be acceptable online business practice, then it seems as though it could have profound implications for the usage of photography on the internet. Will it really mean that every photograph online will need to have a visual watermark stamped across it, to prevent agencies ‘stealing’ them? This would surely be a ridiculous state of affairs, and could mean much important photography may disappear from our screens.

In the age of digital that we live in now, this is almost inconceivable. There must be a sensible solution found, to protect the rights of photographers who post was their work online (and all other creative producers – writers, musicians, filmmakers etc), as well as (yes, unpopular this bit I know) those of agencies such as AFP, so desparate as they are to get the first scoop. Let’s hope the judge in Morel’s case fully realises the internet-wide implications of what he’s being asked to adjudicate on.

Open sesame

Meanwhile, on this side of the Atlantic, some interesting news in relation to copyright in government (i.e. public) information and data in a way presents almost the polar opposite to the Morel case.

Last week, the UK’s National Archives announced that from now on all information and content that is produced by government departments should be available for commercial re-use under what will be known as the Open Government License (OGL). This license is supposed to be based upon, and inter-operable with, the Creative Commons – Attribution license. There’s an excellent post about this in much greater detail over on Simon Dickson’s blog.

In photographic terms alone though, the new OGL should mean that the increasing amount of images currently being posted to Flickr over at the Department for International Development (DFID) – along with images from other government departments such as the Foreign Office – should become even more usable by the development community (and everybody else) than they already are.

DFID has been posting images taken by its staff under a Creative Commons Attribution – Non Commercial – No Derivatives license for a couple of years now. If you’re interested in photography relating to development issues, you really should go and check it out the DFID Flickr photostream. Not all of the images there are available under CC-licenses (some are posted as Copyright All Rights Reserved, with the permission of the supplying freelance photographers), but many are, and they’re available to download in hi-res and reuse. Quite what this means in relation to photo agencies like AFP and Getty, or indeed even to photographers like Daniel Morel, I’m not quite sure yet. I’m guessing it could be complicated…

I’m working on a list of other Flickr contributors (government and otherwise) that offer CC-licensed development photography and will post this separately.


And finally, not sure what was going on in Tate Britain’s ‘tete’ yesterday, but for a brief while they were trying to get photographers to sign a disclaimer, promising that no photographs of the latest Turner Prize shortlist would be used in a way that would ‘result in any adverse publicity’ for the gallery.

This ham-fisted approach neatly demonstrates a lack of understanding of how the media, technology and copyright law work on so many levels that I can’t quite believe it isn’t an entirely made up story. The irony of it is the fact that one of the nominees for the Turner prize this year is a ‘sonic artist’, whose ‘exhibit’ is an empty gallery with some speakers in it. Surely this fact alone was always going to result in all the adverse publicity they didn’t want anyway?


About russellphoto

Photographer and multimedia producer/editor working in international development. Also on Twitter @russellphoto
This entry was posted in copyright, development, humanitarian emergencies, photography, photojournalism, twitter and tagged , , , , , , . Bookmark the permalink.

2 Responses to #04: AFP, OGL and CC-A: big questions for photography and the internet

  1. Pingback: #08: From Haiti to Pakistan | Developing Pictures: photography+development

  2. Pingback: 24 posts later: a year of blogging on Developing Pictures | Developing Pictures: photography+development

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