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Haitian Photographer sued by Agence France Presse (AFP) for “antagonistic assertion of rights”

Barbara Hoffman
Hilary Gish
The Hoffman Law Firm
(212) 873-6200
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 such a difficult
environment. I work for AFP, please e-mail ben.fathers@afp.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
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
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
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.”

24 Apr 2010 11:04 | 1 replies

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