Wednesday, January 30, 2013

The Legal Lens: Judge Rules On Daniel Morel Twitter Photo Grab

The Legal Lens
with Samuel Lewis

Q. Last month, we talked about Instagram and the brouhaha over changes to its Terms of Service (TOS).  Has the new TOS gone into effect?

A. They have, although it seems the uproar over the TOS has quieted down.  Unfortunately, the TOS contains the same language that caused me concern when we discussed the issue last month.

Q. Have there been any other recent developments?

A. Well, not with Instagram.  However, there has been a development in a significant case involving Agence France Presse, Getty, the Washington Post, photojournalist Daniel Morel and Twitter’s TOS. 

Morel was in Haiti in January, 2010, when the earthquake hit.  He then posted some of his images to Twitter.  Shortly after Morel uploaded the images, they were reposted by another Twitter user.  AFP’s Director of Photography for North and South America found the re-tweeted images and sent eight of Morel’s images to the AFP photo desk.  AFP ultimately transmitted the photographs to Getty, who in turn provided the images to the Washington Post (the Post published four of Morel’s images).  Because of the way the images were originally obtained—from a Twitter account other than Morel’s—the images weren’t even credited to Morel initially.

After learning that the images belonged to Morel, and that AFP and Getty did not have permission to publish or license the images, AFP filed a petition against Morel in the U.S. District Court in New York seeking a declaration that AFP use of Morel’s images was covered by Twitter’s TOS, and therefore, the AFP did not commit copyright infringement.  Morel countersued AFP for copyright infringement, and also asserted claims of infringement against Getty and the Washington Post.

On January 14th, U.S. District Judge Alison J. Nathan released a 58-page summary judgment opinion (summary judgment is issued when a court is able to resolve aspects of the case—and sometimes the entire case— by making final rulings on legal issues based upon undisputed facts; summary judgment prevents a court and the parties from wasting time with a trial when there is no dispute over the facts and it is just a matter of applying the law to those facts).

Under Twitter’s TOS, users like Morel grant Twitter the right to make content “available to other companies, organizations or individuals who partner with Twitter for syndication, broadcast, distribution or publication of such” content.  Similar to Instagram’s TOS, Twitter’s TOS provides that any such use of content may be made without compensation to the user who posted the content to Twitter.  AFP contended that this language was broad enough to give it the right to use images posted to Twitter.

With regard to Twitter’s TOS, the Court ruled squarely in Morel’s favor.  As the Court explained, “it suffices to say that based on the evidence presented to the Court the Twitter TOS do not provide AFP with an excuse for its conduct in this case . . . Put differently, the evidence does not reflect a clear intent to grant AFP a license to remove [Morel’s images] from Twitter and license them to third parties . . . .”  The Court went further when addressing both AFP and the Post:  “AFP and the Post raise no other defenses to liability for direct copyright infringement, and, in fact, concede that if their license defense fails—as the Court has determined that it does—they are liable for direct copyright infringement.”

Unlike AFP and the Post, Getty also argued that it is not liable for copyright infringement because it is entitled to the benefit of the safe-harbor (limited immunity) applicable to online providers under the DMCA.  The Court found that there is a factual dispute, and thus, Morel will have to proceed to trial against Getty and let a jury decide if Getty qualifies for the limited immunity under the DMCA.  Similarly, the question of whether AFP, the Post and Getty are willful infringers is an issue that will have to be resolved at trial.

Q. This sounds like a good decision for photographers.  Is it?

A. The decision is good from the standpoint that the Court did not find the language of Twitter’s TOS to be sufficiently broad to permit agencies like AFP to license the use of the images to others.  While the Twitter TOS is broad enough to allow Twitter and others to republish the tweets, including images, it was not interpreted so broadly as to permit AFP or the Post to use the images without consent (although the way that the next court interprets the Twitter TOS may be different).

However, the Court’s analysis regarding damages was not so good for Morel.  In fact, the Court squarely rejected Morel’s theory of damages, which would have resulted in an award of statutory damages against AFP and Getty “in the tens or hundreds of millions of dollars.”  AFP and Getty argue that they are only liable for one award of statutory damages each—a maximum of $30,000 per image for infringement, and up to $150,000 per image for willful infringement—and not responsible, as Morel contended, for an award of statutory damages for every subscriber who used the images.  The Court ultimately ruled that “AFP and Getty are, at most, each liable for a single statutory damages award per work infringed.”

With the Court’s decision on damages, AFP, the Post and Getty have a considerably better idea as to their possible exposure—the amount that may be awarded—should the case proceed to trial. Unfortunately, those damages are considerably less than Morel was seeking in the case. 

Q. What should photographers take away from this decision?

A. If there’s one thing to take away from the decision, it is the importance of reading the fine print when using social media sites.  Much of the decision in Morel’s case turned on the Court’s analysis of the Twitter TOS, and considering each term and phrase within that TOS.  However, since the TOS vary from one social media site to another, the same phrase that tipped the scales in favor of Morel in Twitter’s TOS might not be present in the TOS for any other social media site.

RELATED STORIES: Lens Blog: New York Times;  PetaPixel

Samuel Lewis is a Board Certified Intellectual Property law specialist and partner at Feldman Gale, P.A. in Miami, Florida, and a professional photographer who has covered sporting events for more than twenty-five years. He can be reached at or

Note:  The information appearing in this blog entry is not, nor is it intended to be, legal advice, and should not be construed as such.  Rather, the information is provided solely for educational purposes by providing general information about the law.  This blog is not a substitute for legal advice from an attorney licensed to practice in the state where your business is based or where you live.

Saturday, January 26, 2013

LeBron James Tackles Fan

By Al Diaz
One of the requirements of my job is to transmit photos during a sporting event to make deadline for the Miami Herald’s section front and for any online needs.

During a basketball game I have to walk off the court to the media room where I “ingest” my photos using Photo Mechanic editing software and sending the photos FTP to the office.

When I do this there is always a chance that something can happen that goes viral, a doozie that all the sports writers talk about, such as a spectacular play in the game or a major injury. Lets say the Miami Heat’s Chris Bosh injures his back during the NBA playoffs, prompting doubt that the team could reach the finals without him. I’m glad I captured that moment last year.

Not last night. I missed it when a jubilant LeBron James tackles a fan that sinks a basket from mid court with a half-armed hook shot to win $75,000! I was inside transmitting.

Here is the ultimate highlight of Michael Drysch, a 50-year-old computer technician, shooting the shot of his life but I shot none.

Here is an updated story on Drysch, click here.

Sunday, January 6, 2013

PictureProApps is a Game Changer.

Sports photographer Steve Mitchell has been telling me about the power of his new iPad mini running PictureProApps. During the Orange Bowl game I watched photographers jaws drop when they saw how quick and easy Steve downloads, edits and transmits his images between whistles. He’s been raving about it for weeks! Once this new workflow catches on it will be the new norm for transmitting on tight deadlines.                                                                                                                                                                    Al Diaz

The new PictureProApps is a game changer for working photographers on the run and on deadline. 

Two hours before a recent sporting event I found myself staring into the computer screen. I’m wondering how best to utilize my iPad mini, besides surfing the web and checking email. So I googled, ‘transmitting with your iPad’. Holy cow, there it is! I found, "PictureProApps". An app built for the working photojournalist.

After downloading the app I quickly noticed a few changes that would help improve some of the app’s features. For starters, the 0 to 100 scale for compressing the size of photos had no indicator for the resulting megabyte size of the image. 

As a working photojournalist who is constantly working on a very tight deadline the 0 to 100 scale would not work for me. Too much math for me to try and figure out. Even though I was extremely excited about this app. I decided to contact the software developer David Shields about changing some of the existing features and adding a few.  

A few tweaks here and there made all the difference in the world. David came up with a design based on the browsers many photojournalists use on computers in the field.  

At a recent football game this season I was working the end zone as the Miami Dolphins battled the Buffalo Bills. The Dolphins were driving down the field when running back Reggie Bush reached for a touchdown and I captured the decisive moment. Now I had to make a quick decision. Do I run back to the media center with all my gear to transmit the key play or do it faster using the new PictureProApps? 

Since that day it’s now an easy choice with the iPad mini always tucked away in my Think Tank Photo Slim Changer belt pouch. I download the photos and tweak the captions using code replacement on assignment information already set up in the ITPC field. 

Code replacement is an automated tool that generates various collegiate and professional sporting rosters so photographers can upload the teams names and numbers quickly. Yes, the app allows you to use this feature.

After trying several card readers I found the Vivitar 50-1 Hi Speed Card Reader / Writer  works best with the iPad mini. I tether it with Apple's "Lightning to USB camera adapter" to upload my photos to the iPad mini.

My new workflow allows me to FTP my images for my client faster than any of my wire service competitors. Yes the app allows me to select various upload options including FTP
Steve Mitchell, a professional sports photographer for the past 20 years, is currently working as a freelance photojournalist based in South Florida. Steve attended the New England School of Photography in Boston, Massachusetts and this is where he started his career. Steve is a contract photographer for USA Today Sports Images. His work has appeared on billboard ads and in major publications including Sports Illustrated, ESPN Magazine, USA Today, and the Los Angeles Times. Steve has covered several World Series, The Super Bowl, Sony Ericsson Tennis, MLB, NHL, NFL and the NBA finals. Sports photography is Steve's passion.

Flashes of 2012

The Miami Herald asked staff photographers to submit images from the past year that meant the most to them, and to share their thoughts. Scroll down to see their picks. 
Al Diaz

A bombardment of 25,000 tomatoes (10,000 pounds) was launched by a mob on Saturday, Feb. 11. Tobacco Road, Miami’s oldest bar, provided the tomatoes for the city’s first Tomato Smash and Bash. Even covered in protective plastic, my camera gear and I ended up coated with tomato paste. I felt a bit tousled, like a bowl of spaghetti. 

Veteran Miami Herald staffer Al Diaz, 54, is a member of the Herald news team that won the 1993 Pulitzer Prize Gold Medal for the newspaper’s coverage of Hurricane Andrew. Diaz earned his journalism degree from the University of Florida in 1983, and was hired by The Herald upon graduation. He is a first generation Cuban American. Diaz and his wife, Cindy Seip-Diaz; their children, Angelika and Bartek; and several pets make their home in Coral Gables. 

Marice Cohn Band 
It’s always a challenge for me to shoot sailing because I really know nothing about the sport — only that it’s beautiful, fast, and always surprising. Such was the case with the swift crossing of three sleek sails during this past year’s Rolex competition on the waters of Biscayne Bay, Jan. 27.

Marice Cohn Band has been a photographer at The Miami Herald since 1979. A native of Miami, Cohn Band graduated from Florida International University with a BFA in photography. As well as working full-time at The Herald, she has been a Girl Scout leader for 21 years in Miami Beach, where she lives with her husband, Michael. She is the proud mother of three daughters: Jessie, Samantha and Alexandra. 

C.W. Griffin
Sports photography is a challenge that requires skill, reflex, game knowledge and a little luck. When all those things come together, the photographer has a chance to capture an extraordinary moment — like this one, a touchdown celebration involving the Miami Dolphins’ Daniel Thomas, (33), Charles Clay (leaping, foreground) and Davone Bess (partially obscured) during a November game against the Seattle Seahawks. Covering a game is like going fishing: There will be opportunities to catch a big one. Your job is to seize them. 
C.W. Griffin, has been a staff photographer at The Herald for the past 29 years. His work has appeared in National Geographic, Smithsonian and Time, and in multiple volumes of the Day in the Life photo book series. He has taught at the University of Miami for more than 10 years, and also teaches at the Little Haiti Cultural Center with Iris PhotoCollective. While serving in the military, he was the first African American to be named military photographer of the year for all branches of service. 

Peter Andrew Bosch
Michael Hadler is called safe at home during a Miracle League game in Pembroke Pines last August. The league is for kids with disabilities. The joy on their faces as they scored was inspirational. So too were the cheers from their parents. 

 Peter Andrew Bosch, born in Sunderland, England, has been at The Herald since July 4, 1983. He attended the University of Kansas, where he received a degree in design. 

Charles Trainor Jr. 
My favorite image is from the Miami Heat’s 2012 media day. I had LeBron James squeeze a basketball. Later we Photoshopped the Earth into the picture. On the final squeeze, he roared like a lion, and the room went silent.

Charles Trainor Jr. joined The Miami Herald in 1981, and has shot most of the major news events that have impacted South Florida in recent decades. Highlights include his images of the Cuban rafters’ exit of 1994, the wreckage left by Hurricane Andrew and a project called ‘The Corridor’ that chronicled life in a section of South Florida over 18 years. 

Walter Michot 
I love photography and I love horticulture, so this was a great assignment for me. Angles, size, relationships and timing are the daily challenges of a photographer. It was June 6, 2012, a Wednesday morning. Approximately 40 really old trees were being dug up and moved from the old Brickell Tennis Club, future site of Brickell CitiCentre, to the under-construction MAM/Museum Park at Bicentennial Park. This image shows a tree-bearing barge moving north through the Florida East Coast Railway Bridge. 

Born and raised in Fort Lauderdale, Walter Michot attended Chaminade High School and went on to major in psychology and management at Loyola University of New Orleans and Florida State. While awaiting a job with the state of Florida, he decided to pursue his hobby of photography as a profession. He has been shooting pictures in South Florida for 39 years, 29 of them for The Herald.

Emily Michot 
This photo was shot in March on yet another media tour of the new Miami Marlins Park. This particular tour was for the media to sample and photograph the ballpark food, but when I saw these workers cleaning the windows, it made for a much better picture. 

Born in Fairbanks, Alaska, Emily Michot has been a staff photographer for The Herald for 17 years, and still loves every moment of it. Michot first acquired a passion for photography as a child in her father’s darkroom as he took photos and developed them for the Air Force as a public affairs officer. Michot later studied photography at the University of Florida and the Art Institute of Fort Lauderdale. Michot is married to Walter Michot, also a Herald photographer, and they have two sons. 

Patrick Farrell 
Nearly three years after Haiti’s devastating earthquake on Jan. 12, 2010, Catiana Pierre, 11 ( left), and her brother Dickenson Prudhomme, 6, take cover from the relentless rain of Tropical Storm Isaac last August. Wind and rain from the storm collapsed their family’s tent-home the night before. The children escaped up a nearby hill to watch the rising water of the Riviere Grise, which runs by the Marassa 14 Tent City and serves as a constant reminder of Mother Nature’s threats to recovery efforts. 

Patrick Farrell has been a photographer at The Miami Herald since 1987. He was the recipient of the 2009 Pulitzer Prize for breaking news photography for his images of Haitian storm victims. Farrell graduated from the University of Miami in 1981 with a major in film. He grew up in Miami, the seventh child in a family of 12. He is married to writer Jodi Mailander Farrell, and they have two daughters: Annie, 13, and Lucy, 12. 

Marsha Halper 
On Aug. 31, The Miami Herald photo staff was issued a challenge: find a page one-worthy image reflecting the start of the Labor Day weekend. Months earlier, at Miami International Airport, I had seen this beautiful, multi-hued wall of windows, part of a sound-and-light installation, and made a mental note to return to photograph it when the time was right. It was worth the wait: My photo of travelers at MIA making a colorful entrance to the holiday weekend ran prominently on our front page the next day. 

Marsha Halper has been a Miami Herald staffer since 1985. She was born in Baltimore, and is a graduate of Guilford College in Greensboro, N.C. Her work has been featured in Time, Newsweek and Mother Jones magazines, and was selected for the 1985 Hortt exhibition at the Museum of Art Fort Lauderdale, and for a 1988 show at the St. John’s College gallery in Santa Fe, N.M. 

Carl Juste 
 “Death is always harder on the living” — those words have come to mind so many times over the years that it is almost a cliché. On Dec. 14, 2012, the nation endured what seemed to be the breakpoint — the Sandy Hook Elementary School shooting that killed 20 children, brought the nation and its newly reelected president to tears and reignited the debate over gun control. For many in South Florida, gun violence has become the norm, with arguments and lovers’ spats resolved with the pull of a trigger. On Nov. 20, less than a month before Sandy Hook, 13-year-old Lourdes Guzman-DeJesus was riding in a school bus with her younger sister and seven other children when another student took a gun out of his book bag and accidentally shot her in the neck. The .40-caliber handgun came from his home. While covering Lourdes’ funeral, seeing her mother Ady Guzman-DeJesus weep inconsolably over the casket, another phrase came to mind — “Lost but not forgotten.” 

 Born in Port-au-Prince, Carl Philippe Juste came to the United States with his politically active family in 1965. Raised in Brooklyn, he arrived in Miami in 1973, earned a bachelor’s degree at the University of Miami and has worked at The Herald since 1991. Assignments have taken him to Pakistan, Iraq and Afghanistan, as well as to the nation of his birth. Juste is co-founder of Iris PhotoCollective, a collaboration to create a new context for exploring and documenting the relationship of people of color to the broader world.