Judge Clears Way For Daniel Morel's Suit Against AFP, Others
NEW YORK, NY (December 30, 2010) – A U.S. District Court judge ruled this week that photographer Daniel Morel did not grant media companies blanket permission to publish his Haiti earthquake breaking news photographs when he used Twitter to link to his uploaded images on Twitpic.
Judge William Pauley III's ruling in the Southern District of New York clears the way for the photojournalist to move forward with a copyright infringement suit against Agence France-Presse, Getty Images, CBS, Turner Broadcasting System, and other third-party media companies. Morel settled with ABC earlier this year.
At the same time, Pauley's ruling dismissed Morel's counterclaims against CBS and TBS and his Lanham Act claims against AFP, Getty, CBS, and Turner. The Lanham Act imposes liability for "any false designation of origin, false or misleading description of fact, or false or misleading representation of fact." In layman's terms, the Act prevents "passing off" goods or services as being created by someone other than the content's actual author.
Morel had accused AFP of using, without his permission, his photographs from the January 2010 devastating earthquake in Haiti which Morel posted on TwitPic and linked to from Twitter shortly after the disaster struck.
As the suit explains in a convoluted chain of events, shortly after the quake struck Haiti the photojournalist uploaded some of his pictures to Twitpic and linked to them from Twitter. Then a non-photographer, Lisandro Suero, a Dominican Republic resident, re-posted Morel's photographs to his own Twitpic page and took credit for the images.
Morel claims that by the time an AFP editor contacted him to ask permission to use his photographs, the news service had already downloaded 13 of his photographs from Suero's page and distributed them. Morel claims his photographs were then licensed through Getty Images to other news organizations where they were published carrying a photo credit to Suero.
An attorney for Morel sent a cease-and-desist letter to AFP and other news outlets, the suit says, but the images continued to be published in some outlets and they continued to carry Suero's credit, he claims.
AFP claimed they had the right to use Morel's images because he'd posted them on Twitter, where they claim that Twitter's terms of service granted them "a worldwide, non-exclusive, royalty-free license, with the right to sub-license to others." Morel had not posted his images on Twitter but on Twitpic, and he had linked to the Twitpic images from Twitter. The Twitter terms of service at the time also said that users still owned their content, and that the purpose of Tweets was to let other users around the world see Twitter user's Tweets.
AFP had asked for a declaratory judgment to say that they were not infringing, and claimed the photographer had been "engaged in an antagonistic assertion of rights" after he objected to AFP's use of his images. In the initial suit, AFP held fast to their belief that Morel granted any third-party a non-exclusive license to his images by posting them on Twitter without making any notation that he was limiting the license granted to Twitter or third parties. Morel had asked his lawyer to contact newspapers and Web sites where the images appeared (with AFP photo credits) to request the images be taken down or removed, along with telling multiple parties that AFP "had no right to distribute them."
The judge's ruling this week does not prove or disprove Morel's claim, but merely clears the way for the photographer and the news organizations to continue to gather evidence and to move forward toward a trial.
NPPA Marketplace
- Insure Your Equipment
- You go where the action is….so should your insurance! Hays delivers comprehensive insurance for your gear - covering cameras, computers, editing equipment and rental.
- Join the NPPA
- NPPA members receive a wide range of benefits, from educational opportunities to mentoring, exclusive discounts, insurance options, business tips, and much more.