

We Stole Your Pictures, Now We’re Going To Sue You - aj
http://www.jeremynicholl.com/blog/2010/05/03/afp-steal-photos-then-sue-photographer-2/

======
jacquesm
What a disgusting story, big corporations act like this all the time simply
because they don't expect the 'little guy' to step up and bite back.

The gall to do this sort of is incredible, what bugs me is how people that
come up with this sort of thing sleep at night. Corporate accountability is
really rare.

~~~
grellas
_When Mr. Morel posted his photographs on Twitter, he made no notation that he
was in any way limiting the license granted to Twitter or third parties or
that he was in any way limiting the ability of Twitter and third parties to
use, distribute, or republish his photographs._

Wow, this is _really desperate_ on AFP's part if this is what they are relying
on to justify their alleged right to use the pictures. It is way beyond doubt
that a copyright holder retains rights to his copyrighted works even though
they might be posted to the internet. In posting them, he gives at least an
implied license to the internet host to display them publicly in the venue
itself but it is utterly absurd to conclude from this that any third party can
simply hoist them for his own profit. The fact that a sophisticated news
organization would resort to such an argument strongly suggests that they have
no defense to the photographer's claims.

This issue came up on HN not long ago when the idea was floated for publishing
comments from this site in a monthly magazine format and the question came up
whether the person who sought to do so had to get individual permissions from
each of the posters. My comment on why individual permissions were needed
(with some legal citations for the copyright law) is here:
<http://news.ycombinator.com/item?id=1262546>.

The AFP lawsuit filed in Manhattan is for declaratory relief and for
commercial disparagement. Most people, when victimized by others, have no idea
that an adverse party can take their attempts to fight back and use it as a
basis for suing them in a distant forum. Here, the photographer made claims
that his copyrights had been infringed. This allowed AFP to file its lawsuit
asking a court to consider the photographer's claims, to weigh them against
its contrary claims that no copyrights had been infringed, and to render a
judgment one way or the other on the issue (with AFP asking the court for a
judgment that the copyrights had not been infringed). This sort of legal
action can be used as a bullying tactic by a big player to force a smaller
player to settle up or incur significant legal expense (on the other hand, for
what appears to be a legitimate use of the same tactic by Google, see
[http://www.billboard.biz/bbbiz/content_display/industry/e3i8...](http://www.billboard.biz/bbbiz/content_display/industry/e3i8f1f42046a622bda0da37f7b3ad8a680)).
Here, the tactic has obviously backfired on AFP, since the photographer, in
effect, responded with both guns blazing with counterclaims that put AFP at
risk for some serious liability.

By the way, this piece sorts through the legal issues fairly astutely. It is
well written from that perspective (and otherwise).

~~~
jacquesm
I was actually surprised at the level headed tone of the piece and the solid
legal footing, most of the time stuff like this is 'shooting from the hip'.

Wouldn't it be nice to have a 'tit-for-tat' law, stating that if you sue
someone on wrongful grounds that the rest of the world can use your arguments
in court against you as precedent in the future.

That would make companies and individuals alike tread a lot more careful
before bringing nonsense like this to court.

Don't do to others what you don't want done to you...

Btw, it's great to have you back as a regular contributor on HN, we don't see
eye to eye on some stuff but that doesn't mean I'm not always parsing your
comments and learning from them every chance I get. Between you and patio11
you could start a site of your own!

------
ohashi
I am glad to see this guy fighting back, I hope he wins. Trial by jury is a
nice touch, nobody likes big corp screwing the little guy.

~~~
MikeCapone
If he wins it will set a nice precedent. But I'm afraid that not everybody
would go to all that trouble (trials are long and expensive), and so "little
guys" will only be marginally safer in these kinds of situations.

------
nostromo
5 years ago I took a picture of a cup of coffee and uploaded it to Wikipedia.
It's been the picture used on English Wikipedia's coffee page for quite a
while.

I see it used EVERYWHERE. When using TinEye I can find hundreds of places
using it, only a fraction actually giving attribution like the license
requires. But, I don't really care.

However, recently I noticed a hotel was using the photo in an advertisement at
SeaTac airport, clearly breaking the CC license I put it under. A friend
thinks I should send them a bill. What do you guys think?

~~~
kragen
Presumably you put it under CC-BY-SA, not one of the noncommercial-use-only CC
licenses, or Wikipedia wouldn't be able to use it. The hotel could have used
your photo legally in their ad if they had properly attributed you.

However, under the Federal Circuit precedent set by Jacobsen v. Katzer, I
think they're still liable for copyright infringement, and you're still
entitled to monetary damages.

------
isleyaardvark
_On March 26th AFP responded, filing suit in Manhattan federal district court
claiming Morel had “made demands that amount to an antagonistic assertion of
rights”._

I don't think this is well phrased. From what I can tell "antagonistic
assertion of rights" is a legal phrase that appears in the counter suit, but
is not the reason AFP is filing suit. "Antagonistic" is being used as a purely
descriptive, and not a judgemental term (more like, say "declaratory" than
"malicious").

That said, I can't say I'll be too torn up if the phrase "antagonistic
assertion of rights" hangs around AFP's neck like an albatross.

~~~
_delirium
Good catch--- it appears in a paragraph discussing why the court should
consider the case at all, so is mostly a jurisdictional comment. Courts are by
default reluctant to issue declaratory judgments, because the U.S. legal
system requires an "actual case or controversy" to consider a case. So AFP is
arguing that, by setting up an "antagonistic assertion of rights", Morel has
initiated an actual controversy over the matter that the court should
consider, i.e. it's not just AFP asking for a declaratory judgment on a purely
hypothetical issue. Of course, Morel's countersuit dispenses any doubts on
that point.

------
aj
I hope that AP get screwed big time if only so that they learn a lesson. They
have been such jerks with regards to C&D and the bogus copyright claims.

~~~
jancona
It's not AP, it's AFP (Agence France-Presse) that's accused of stealing the
photos.

~~~
aj
Oops. Good catch. I obviously misread that big time. Wishful thinking I
guess..

------
binarymax
Supposing he does win, I hope he gives a significant amount of the profit to
aid Haitian victims.

~~~
Vivtek
I think it's important to realize that he _is Haitian_. Imposing your demands
on a Haitian in matters dealing with his own catastrophe is kind of
presumptuous, don't you think?

~~~
binarymax
These are not my demands, these are my prayers. Presumptuous? ...possibly, I
am not here to pass judgement but if the same were to happen to me then I
would donate it without a blink. Also I feel that natural disasters, while the
majority are localized, do not belong to the nation of their happening - they
belong to all of us. We are all on Spaceship Earth and we are all humans. When
I peronally give donations I do not consider it an 'imposition', so why should
campaigning others to follow suit be considered as such? You can downvote me
all you like but I personally think the world would be better if everyone were
more generous, and I will stand by my view.

~~~
euccastro
If natural disasters belong to all of us, should this particular photographer
be more generous than other people with some dough to spare? Wealthy people
are mentioned all the time on HN. What prompted you to state your prayers in
this case?

------
rwmj
Stupid idea that you can "own" the pictures of a major world event.

~~~
varjag
Of course you can, if you took them.

~~~
Tichy
What happens to the woman on the picture displayed, though. If she survived,
hopefully she deserves a share, too? Did she have to give consent to having
her picture published?

~~~
KirinDave
In general, photojournalists don't need consent forms.

In fact, in most places in the western world you don't need consent forms if
the photos are taken in public, period. It gets a little trickier when it's a
portrait or something. But if you go out on the sidewalk of a busy street
where people have no expectation of privacy and start snapping photos, they
really don't have any claim to the revenue from those photos.

~~~
Tichy
I guess being half naked in the rubble of your house could be an interesting
case then. Private or not?

~~~
KirinDave
Journalism has different rules. But in general in the US the law deals with
"Expectations of Privacy." If the party in the picture has a reasonable
expectation of privacy then yes, consent would be required.

