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Earthquakes and other disasters: the Morel decision, eye witness photos on Twitter and the media
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Date: 21.01.2013
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Photographer Daniel Morel was awarded summary judgment last week in New
York in his ongoing copyright infringement claim against Agence France
Presse, Getty Images and the Washington Post. AFP and the Washington
Post will have to pay him damages after using his tweeted photographs of
the Haiti earthquake three years ago without a licence. Whether Getty
is also liable remains to be determined. AFP and the Washington Post
(and Getty, if ultimately found liable) might have to pay statutory
damages of up to $1.2m, but not the tens of hundreds of millions of
dollars Morel argued he was entitled to claim.
The judge’s key finding for people tweeting their
photographs was that Twitter’s terms of service (which are subject to
California law) do not give news agencies or anyone else an automatic
licence to publish tweeted photos. Twitter could have licensed Morel’s
pictures to AFP if they’d wanted to, without payment to Morel, but that
hadn’t happened. AFP could not rely on Twitter’s terms of service in the
absence of such a licence.
So far so good. But have the news media got the message?
It appears the answer to this question may be yes, but only up to a point.
An article in
The Guardian looked at this issue in the context of the helicopter
crash in London last week. Eye witness photos appeared on Twitter first
and were then picked up very rapidly by the media. Were the media aware
of the rules of engagement as confirmed in the Morel decision?
The Guardian itself appears to be: “The Guardian, which
also publishes MediaGuardian, has a policy of publishing with permission
and says where it inadvertently publishes without permission it will
seek to rectify the matter as quickly as possible and pay for usage.” The Guardian, in other words, doesn’t deliberately publish people’s photos without permission.
But other newspapers, whilst acknowledging that pictures on
Twitter are subject to copyright, may sometimes ignore one of the key
points about copyright – the requirement to get permission before you use a work.
A newspaper which published an eye witness’s tweeted
photograph of the aftermath of the crash is said in the Guardian article
to have confirmed that “in the heat of the moment, the paper could
not contact [the tweeter] about its splash, but if he, or anyone else,
contacts them regarding payment, they will oblige.” The newspaper’s picture desk is quoted as saying “All
the information about the source of the photo is entered into the
database and remains in our library. We’ve always been of the view
whoever took the photo owns the copyright, and if they want payment,
there is no question they will be paid.”
The difficulty with this is that eye witness photos will
often be “heat of the moment” material. If a newspaper doesn’t get
permission before publication it will almost always infringe copyright –
being willing to negotiate a fee after the event isn’t a defence to a
legal claim.
In most cases the media will get away with this. Perhaps the
tweeter isn’t interested in being paid, or the sums involved are too
small to make legal action likely. But a policy of publish now, negotiate later cannot be defended from a legal point of view. Copyright isn’t just a right to be paid, it’s a right to authorise publication.
The lesson for professional photographers is clear. Don’t rely on the Morel decision.
If you tweet photographs you risk them being published without your
permission, and if the photograph is a valuable newsworthy image you
will lose out if this happens because your negotiating position will be
undermined. Unless that is, like Morel, you are prepared to play
hardball. Charles Swan
Photography / Digital Media / Intellectual Property See also: Image Copyright on Twitter: Agence France Presse v Daniel Morel
Photojournalism and “Fair Use”: Fitzgerald v CBS Broadcasting
e-bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.
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