There’s enough ambiguity about the rules—in the minds of editors, if not in the law—that, in response to these pressures, news organizations have gotten into the habit of taking now, and asking permission and, if needed, paying up later. To justify this behavior, reporters and editors trade advice and rules-of-thumb—myths, really, based on received wisdom, rather than actual law—about what circumstances justify snagging photos of questionable copyright. Breaking news—like Haiti—is often cited as a circumstance that warrants a little flexibility. This isn’t to say that AFP made the right choice: as Morel’s lawyers pointed out in the trial, plenty of other news organizations reached out to him about the possibility of acquiring his photos and when he did not respond, made the simple choice not to post his pictures.
The good news is that this is, to a certain extent, a technical problem. On Flickr, for instance, photographers can license their photos through Getty and get paid for their work. Twitter, too, could make it easier for people to license the photos they post on Twitpic. As long as these services take a cut smaller than big photo agency would, these systems could appeal to photographers like Morel, who’d have the freedom to set their own price and control the distribution of their images more closely. Of course, increasing access to quick licensing systems isn’t entirely to news organizations’ advantage. “Citizen journalists” might decide it’s worth trying to monetize their pictures, too.
Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.