Contact: Barbara Hoffman
The Hoffman Law Firm
Haitian Photographer sued by Agence France Presse (AFP) for "antagonistic assertion of rights"
Award winning Haitian born photojournalist, Daniel Morel, has filed an answer and counterclaim to the French international wire service Agence France Presse's lawsuit filed on March 26, 2010 in Manhattan federal district court. The French international wire service which distributes to approximately 110 countries, which provides text, photographs, videos and graphics to customers on a worldwide basis, asserts that Mr. Morel "has made demands that amount to an antagonistic assertion of rights in his photographs of the catastrophic earthquake in Haiti on January 12, 2010 at 4:54 p.m. taken in the hour immediately following the quake. The Complaint asks the Court to declare AFP had the right to use Mr. Morel's images without authorization or compensation and further claims damages for commercial disparagement based on Morel's attorney Barbara Hoffman's cease and desist letters to AFP subscribers, customers, and clients, including Getty Images, Inc., the Boston Globe, the Denver Post, Time, Inc., Vanity Fair, USA Today, and the Age, Australia requesting that they cease and desist from the display on their websites, and online photo galleries, the images licensed from Agence France Presse or Getty and in the case of the Washington Post, correct the misattribution to a Lisandro Suero.
Mr. Morel's answer and counterclaims admit that his lawyer sent such letters and further argues that AFP states no claim against him. Mr. Morel's counterclaims assert that AFP willfully or in reckless disregard of his copyright and other intellectual property rights infringed thirteen (13) of the images of the earthquake in Haiti by distribution, license and sale of the photographs to its subscribers, clients and customers, with a credit to AFP and Getty Images and that these images were credited incorrectly to one Lisandro Suero, tweeting from the Dominican Republic at the time of the earthquake and with no prior history as a photographer.
Mr. Morel's complaint also asserts claims against Getty Images, and CBS and ABC. Getty Images, an image distribution company is associated with AFP to distribute and license images in the United States. The latter two news companies, it is claimed, have independently infringed Mr. Morel's copyright in seven (7) and nine (9) images respectively, in a variety of ways.
When the earthquake struck, Daniel Morel was with an American journalist, Eric Parker in a school in Grand Rue, Port au Prince. Mr. Morel had been teaching the young students for the past three days on how to make their own Facebook pages and Mr. Morel was taking photographs to put on their Facebook pages, while his friend was buying art from the students.
He states in his complaint that, "I was about ready to leave and the earth started shaking. I got out in the street, it looked like the street was hit by 500 cruise missiles at the same time. My journalist friend was buried. After we dug him out, we hit the street to obtain daylight shots. Everybody was panicked. Sobbing and dazed, people wandered around the street. It was rush hour. Lots of people were dead. Then I photographed until dark. I saw a lot of injured and dead—people crying for help. Buildings collapsed—the Cathedral of St. Trinity, the Cathedral, the Iron Market, the Presidential Palace, the Palace of Justice, my father's bakery. The principal manifestations, institutions, and symbols of my Haitian childhood were destroyed in less than a minute. There were aftershocks every 15 to 20 minutes which lasted from three to five seconds."
Few professional journalists and photographers were in Haiti at the time of the quake and even fewer had access to the internet. Mr. Morel's Haiti earthquake photographs, including the thirteen, were among the first photographs by a professional photojournalist taken before sunset on January 12, 2010 to show the evolving tragedy to the world.
Mr. Morel's complaint further describes the situation on the ground: "At sunset, it was dark, there was no electricity or communication—all phone networks were down. Mr. Morel, nevertheless from the still-standing landmark Oloffson Hotel, with the assistance of Isabel Morse, the daughter of his friend Richard A. Morse, manager of the hotel, was able to use a laptop to connect to the internet and have Ms. Morse open a Twitter account with the username "PhotoMorel" for him at 5:20 p.m."
Mr. Morel intended to retain copyright in and credit to his images, at the same time he informed the world of the disaster and advertised his images for license. Perhaps, it's just the nature of an unfolding disaster that early pictures tend to be more sensational and less about telling a story. Daniel Morel was interested in licensing his images if the price, terms and conditions were right. He was not interested in selling or licensing cheap. It was enough that he and the world were witness to what had happened and what was happening. Later, he would tell the full and complete story of the Haiti Earthquake and the impact on the history of Haiti.
Apparently on or about 5:28 p.m., Lisandro Suero of the Dominican Republic, pirated Daniel Morel's thirteen images and put them on his Twitter page.
Daniel Morel's claim then goes on to state that at approximately 9:45 p.m. EST, AFP uploads the earthquake images from Lisandro Suero's account, without Mr. Morel's knowledge, or permission. He alleges, on information and belief, that AFP conducted no investigation into the identity, profession, authorship or location of Lisandro Suero. The images were distributed to subscribers clients and customers worldwide.
Mr. Morel alleges that at 2:06 a.m. on January 13, 2010, Ben Fathers (34Benjie) of AFP tweeted to Mr. Morel as follows: "Hi Daniel, great pictures from suc h a difficult environment. I work for AFP, please e-mail email@example.com."
One image seen below, appears on January 13, 2010 the front page of major newspapers worldwide, credited to "AFP/Getty Lisandro Suero."
On January 21, 2010 blogger, Michael David Murphy in an article entitled, "Does Haiti's Earthquake call for a new Photojournalism" (www.foto8.com) states, "if there's an iconic photograph from the disaster, it might belong to Daniel Morel, a Haitian photographer who lived through the earthquake." Subsequently, Mr. Morel was credited on some blogs and elsewhere for the image, and AFP claims to have issued a credit change, of name but not affiliation (i.e. AFP), and a "kill" for "copyright reasons."
Mr. Morel's answer and counterclaims for copyright infringement, removal of copyright management information, and false or misleading statements of attribution or http://forum.nikonpassion.com affiliation against AFP and Getty request several million dollars in damages for willful infringement. Mr. Morel's complaint alleges that Getty licensed the Earthquake images to charities, magazines, media outlets, TV and websites, all for a fee and without Mr. Morel's authorization. The 63 page counterclaim with exhibits includes examples of the photographs on websites and elsewhere that continue, such as in web photo galleries, in the New York Times, National Geographic, Time Magazine, and the Jehovah's Witness Watch Tower, licensed on information and belief from Getty.
As one blogger noted, conflict photographers on the first flights may be more experienced in reacting to events rather than telling a story. Twitter offers a real opportunity for independent distribution of images by photojournalists like Daniel Morel without the need to freelance for wire services, enter into license agreements, or even worse, contribute "work for hire" to news services. However, not if images are free for the taking for all media and commercial uses.
If the argument of AFP/Getty were to prevail and such activity were to become the norm it would ruin the livelihoods of photojournalists who live on licensing streams and harm the interests of those content owners who rely on fair compensation for their work in order to support their creative endeavors. Licensing is an important source of revenue for content creators, especially true for photographers and photojournalists in these difficult times where cheap stock images provided by amateurs, or "citizen journalists," compete with quality images taken by photojournalists like Mr. Morel.
Assignments are limited and even the Magnum Photo agency, according to reports, has created a fund for its photographers to document Haiti, apparently not obtaining funds elsewhere.
The rule of law that AFP/Getty apparently argues here essentially would permit someone to take and commercialize a content owner's property without authorization, attribution or reasonable compensation, undermining the long-established practice of using such revenue streams to support the ongoing creation of new content by these photojournalists.
In an article entitled "Fair Game: Intellectual Property in the Digital Age," (www.bigthink.com/ideas) blogger Francis Reynolds reflecting on the fact that the technological means to plunder grow more prevalent everyday, causing some to question copyright, comments "while society may seem to be moving in that direction, no matter how much this "plundering" may seem to chip away at our intellectual hierarchies, the politics of allusion and borrowing continues to be shaped by the existing power dynamics of ownership. That's why advocates of a world of free and therefore free-flowing content sometimes risk shortchanging those who have historically been wronged by cultural and intellectual appropriation or outright theft."