In January of 2010, Daniel Morel, a professional photojournalist, was in Haiti when an earthquake struck. Within a few hours, he had taken hundreds of photos and uploaded a select few onto Twitter. A photo editor at Agence France-Presse found them being passed Twitter, under another user’s name, and he put them into the AFP photo system, which linked to Getty Images. On Friday, a jury ruled that AFP and Getty would have to pay Morel $1.2 million for willfully taking and selling his pictures.
On its face, this case seems simple: Even if you publish a photo on Twitter, no one else can take it and make money off of it. That’s what judge Alison Nathan decided last January—that the two companies had infringed on Morel’s rights. The question this time around was whether they knew what they were doing, and how much they’d have to pay for that mistake. And a jury thought it was clear that the two photo agencies did, in fact, know what they were doing, and that they had behaved badly enough to earn the maximum penalty.
What’s striking about the facts of this story, though, is not how unusual they seem, but how typical. A photo editor is at his desk, getting desperate for pictures of an event just hours old; he finds the perfect images floating around Twitter, and while it’s not clear who owns them, it’s not clear that they’re off limits; he makes a quick decision just to go for it. Decisions just like this get made in newsrooms every day; most don’t cost the organization $1.2 million. And because so few publications or news agencies get called out or pay the price, newsrooms bend copyright rules so often that it starts to seem okay.
The story begins with a DC-based photo editor, Vincent Amalvy, working to get images onto the wire in the hours after the earthquake. He tries the AFP’s Haiti bureau; he tries to get in contact with photographers on the ground, and, after hours of work, as Morel’s attorney put it at the trial, “He had nothing to show for an earthquake that looked awful, maybe worse. He, therefore, started to scramble.”
He notices a Twitter user, Lisandro Suero, posting moving Haiti pictures. And here’s what happened next, according to AFP’s attorney: “He sees these pictures, has every reason to believe this is a citizen journalist or journalist posting these pictures to get the word out. Public forum, high resolution, and saying just give me credit.” Amalvy took those photos—which belonged to Morel, not Suero—and put them into the AFP’s photo system.
The jury was asked to look at Getty and AFP’s response after this moment, too. But it’s this moment that’s really the problem: it reveals the gap between newsroom practice and newsroom policy. Amalvy said during the legal proceedings that he “believed AFP had the right to distribute the photographs for editorial (news) purposes.” An AFP senior photo director, Ben Fathers, wrote in an internal email at the time that “it is very difficult to know to whom the photos belong, that’s one of the risks of twitter but we are going to be vigilant so that we find the right bylines.”
That’s all well and good, but, as Morel’s lawyers pointed out, the AFP had policies requiring editors to verify the source of the photo. And Amalvy did try, his lawyers argued: he reached out, via Twitter, to Suero, whose account he was lifting the photos from. But the jury decided that wasn’t good enough. In other words, if you can’t find anyone to ask if you can have a slice of pie, that doesn’t mean you’re allowed to just go ahead and help yourself.
But what if you’re really, really, really hungry? Editors like Amalvy decide to infringe in part because there’s incredible pressure to produce something, incredibly quickly, with no patience for inconveniences like the real danger and trauma of living through an earthquake. Think about an old sheet of newspaper—even a typical page of the New York Times’ A-section. Not every story has a photo. But online, reporters, editors, and producers are typically required to hunt down a picture—maybe a whole handful—to illustrate each post. And they have to be good pictures. Smaller publications often put in this requirement with no budget to support it. Larger organizations depend on services like Getty and AFP to serve up photos fast.
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.