AFP and Twitter and the Photographer

APhotoEditor has posted about the tribulations of Daniel Morel, a Haitian photographer who posted images on Twitter which were then used by AFP without permission of the photographer, etc. The photog is upset and sent his lawyer after the “infringers.”

Sadly, here, it doesn’t look like there were any infringers, legally-speaking.

I know this is going to piss off many of you, but the photographer screwed up. He posted his images without taking steps to make sure he wasn’t giving away too many rights in the doing. As professionals, every photographer must take those steps. It’s a (big) part of your job.

Here, the results suck for the photographer. It didn’t have to be that way because Twitter has incredibly clear TOS which include the following:

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

After that, they even go further, explaining the rights:

You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

One read would have been enough to say “no, this won’t work.” But he didn’t bother. Morel’s own attorney has been quoted as saying “Mr. Morel had no prior experience with Twitter, the social networking site and did not read the Terms of Service.”

Well, there you have it.

Moreover, you can’t have it both ways. I’m sure that any photographer who submits T&Cs with his/her estimate and invoice expects those terms to be respected. Why shouldn’t Twitter expect the same?  Everything else that happened (AFP’s involvement, etc.) evolved out of that one mistake.

The point of all this? READ THE TOS FOR EVERYTHING YOU USE. Sure, it’s hard and boring and not what you may want to do, but it is your responsibility to protect your rights. You can’t claim ignorance. Certainly you can’t claim ignorance and then get upset when your own clients (and others) do the same when they violate your terms.

Do the right thing for your work and your business. Read TOS and T&Cs and do not use services that grab too many rights. Yes, many of those services are easier than finding alternatives, but the price for that ease is too high. In this case, in the rush to get his images out to the world, Mr. Morel appears to have (essentially) given them away.

(remember, I am not a lawyer, just a law student, so none of this should be taken as legal advice–it’s just my own opinion and musings)

10 Responses to “AFP and Twitter and the Photographer”

  1. gene x hwang/orange photography Says:

    Great info for all of us – thanks for posting this. I think a lot of people have neglected to look at Twitter’s TOS as closely as those of Facebook. Hopefully this will be a good lesson learned for others.

  2. Dan B. Says:

    Funny,

    When an artist tries to share his/her art even without pay, somehow they get the shaft; contests, social media outlets and even one’s own webpage. I had something kinda sorta similar and the AP has run one of my pictures with several articles- yet won’t acknowledge my existence. Yet the image was one time use only!

    Dan

  3. KC Ramsay Says:

    What’s your opinion of “watermarked” images posted to Twitter, etc? The modified images would be in the public domain, but useless for commercial purposes. Presumably if the images were valuable enough (as the Hatian images no doubt were) and the watermark was the photogs contact info, that might generate a licensed sale.

  4. Ed McDonald Says:

    Thanks Leslie for your take on the issue. In response to member requests, ASMP commissioned attorney Chris Reese to undertake a review of the Terms of Service (TOS) of six social media sites and to prepare findings and recommendations. The sites included in his assessment are Facebook, Photobucket, Flickr, MySpace, YouTube and Twitter. This report presents recommended best practices, considerations, common terms used, and hypothetical situations photographers may face when images are posted on social networking sites, and we posted our findings here http://asmp.org/articles/social-media-terms-service.html If you are considering the use of any Social Media for distribution of your images it would be prudent to read this article first. Thanks again Leslie.

  5. info Says:

    @KC The images would not be useless for commercial purposes… have you seen the new PS tools? A watermark is an easy thing to remove anymore (yes, it is a violation of other rules). The images would not be protected and would not likely generate licenses.

    However, if a photographer was willing to sacrifice an image to use, essentially, as advertising on a service like Twitter, knowing that the image could be taken and used by pretty much anyone and thus rendering its commercial value to 0 for the photog, and marking the image with, say, the photog’s URL, then that could be a tool to drive someone to look at the work on your site and then, possibly, to hire you/license other images.

    Maybe.

    -Leslie

  6. David Says:

    I don’t think those ToS say what you think they say (and if I’m wrong, then maybe this just means that they’re not “incredibly clear”). Here’s how I read their ToS

    The quote: “By submitting, posting or displaying Content on or through the Services, you grant us…”

    All the photographer posted on Twitter was a URL. A plain text URL. Anyone using Twitter’s services would only see the URL. No photo at all. So Twitter should be able to republish and relicense the URL any way they like that’s consistent with their ToS. The photographer didn’t actually post a photo on Twitter. It’s not even possible to post a photo on Twitter. Only text. Like a URL.

    He posted the photo on Twitpic. That’s whose ToS we should be looking at. Twitpic’s ToS do say “By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites” but I don’t see a list of affiliated sites.

    People post links on Twitter all the time without the right to license the content found on those links. Does Twitter claim the right to use content on the whole web, just because someone linked to it on Twitter?

    Does Twitter claim that if I post a link to my website, they can distribute the photos from my site? Of course not. But they can republish the tweet I wrote on their service in which I link to my site. That’s what their ToS covers.

    As I read it.

  7. info Says:

    @David: You do bring up an important point. I guess it depends on the deal Twitpic has between itself and Twitter– that is how the court may interpret the sublicensing, etc. to work. Clearly, Twitter cannot expect to be able to sublicense content from other sites UNLESS it has a deal with the other sites to be able to do so.

    I don’t know all the details here but it really doesn’t matter in the big picture. My point is simply that so often photographers (and others, to be sure) use software or new services without reading the TOS and that is very dangerous. If there is any question, don’t use the service. Find another way. PITA? Often, yes, but it as the old saying goes, an ounce of prevention is worth a pound of cure.

    For everyone else, a friendly reminder: I do not approve anonymous comments. You have to come out, at least to me privately. Anonymity breeds sniping and trolls– something up with which I will not put. :-)
    -Leslie

  8. Leah Fasten Says:

    @David and all,

    Wow! I guess I was gravely mistaken as well. I didn’t realize the Twitter TOS applied to all images that were accessed by a link on Twitter. So if I, say, update a portfolio on my portfolio site and then link to the site from twitter, does twitter then have the rights to all the images on my portfolio site?

    Leah

  9. info Says:

    @Leah
    I don’t think that is possible unless the site linked to has an agreement with Twitter. I believe (and this is just speculation on my part!) that TwitPic has a deal with Twitter– so it is like posting “on” Twitter. But I would be very surprised if a court would see a link on Twitter to your own site as giving permission to Twitter to sublicense the material on your site.
    -Leslie

  10. Alicia Calzada Says:

    Hi there. I think AFP has a bad case for a different reason. The Twitter TOS grants TWITTER (the aforementioned “us”) the right to use, sublicense, etc.

    Twitter can make the content available to other companies that it has a partnership with, but nothing I have read indicates that it had a partnership with AFP.

    From the twitpic Terms: “By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites. All images uploaded are copyright © their respective owners.”

    I totally agree that if Twitter had given the photos to AFP to distribute or had some kind of relationship, the Terms would be in play (as they are when images go from Twitpic to Twitter). But it is my understanding that this is not what happened here.

    The suit is not against Twitter, it is against a party that is not part of the agreement between Twitter and Morel, a party that is not implicated in their agreement in any way.

    I have granted some publications that I work with the right to sublicense and re-distribute (a debate for another day), but that does not give someone else the right to use the photos from that agreement without either their permission or my permission.

    I think this is a general flaw with the way many media companies view facebook, twitter and youtube. It is a free-for-all for the beneficiaries of the terms of service, but not a free-for-all for the entire world, unless the TOS says that.

    I am interested to hear what you think about my perspective. I know I am late to this party, but I had law school finals so I glossed over much of this.

    -Alicia Calzada