Who Gets The Copyright On The Photo Of A Beaten Gaddafi, Captured Off A Cameraphone

from the copyfraud? dept

The AFP news agency (with its partner Getty) has a bit of a history with some rather odd copyright claims. You may recall the lawsuit that AFP was involved in after it yanked photos from Twitpic of the devastation after the Haiti earthquake without permission, credited the wrong photographer and uploaded them to Getty. Amazingly, once the real photographer called out AFP for this, AFP sued the photographer… and lost big time.

You might think this would lead AFP and Getty to be a bit more careful in how they attribute photographs and claim copyright over them… especially on breaking news stories. And yet… you might have heard how ex-Libyan dictator Gaddafi was caught and killed yesterday. You also might have heard that his capture and beating were captured on video by some of the rebel soldiers who helped capture and kill him. Now, the pictures and video can be pretty graphic, so don’t click on the following link if you’re a bit squeamish. It’s a link to a Getty Images page of a screen capture of the mobile phone video. In the info, however, the cameraphone operator is not named.

If you can’t see that, it’s the metadata beneath the photo, which notes that it’s a video grab from a mobile phone of a National Transitional Council (NTC) fighter… but then says that the credit, if anyone uses the image, should go to: “AFP PHOTO/PHILIPPE DESMAZES (Photo credit should read PHILIPPE DESMAZES/AFP/Getty Images).”

Now, to be fair, according to the AFP, Desmazes was, in fact, on the scene, and took a photo of the cameraphone screen to get the shot:

“I was covering the fall of Sirte and heard gunfire a little further west of where I was. The rebels explained to us that Kadhafi?s men had tried to break out at night a little further west. There had been fighting but this sounded more like celebrations than fighting,” said Desmazes. “So I asked the fighters to take me there. When I got there, they showed me big concrete cylinders in which they said Kadhafi had been hiding when he was captured. A little further on, I noticed some fighters gathered around a phone. I was lucky because I was the only one to notice them. The owner of the phone showed me the arrest of Kadhafi which he had filmed a few minutes earlier. Given the ambient light, it was very difficult to take a screen grab. The fighters gathered round and gave me enough shadow to take the shot. I was really lucky,” he said.

So it’s not as if he’s just claiming credit for something he had nothing to do with, but it still seems a bit questionable that Desmazes/AFP/Getty have any real claim here. It would seem like this is a very derivative work from the original, without much creative input that would give a copyright to Desmazes. At the very least, it seems like they should give credit to the guy who shot the actual video. Obviously, it took some effort for Desmazes to get his shot of the cameraphone screen (and I must admit, the quality of the image is surprisingly sharp if it’s a camera shot of a smartphone screen), but is that enough to get a separate copyright?

And if we take this thought process to the logical conclusion, since Desmazes/AFP get to claim a copyright for taking a photo of a cameraphone screen, if I take a photo of my computer screen showing that same photo, and crop it appropriately, now I could claim to be the copyright holder on the same image? That seems like quite a slippery slope.

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Companies: afp, getty

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Comments on “Who Gets The Copyright On The Photo Of A Beaten Gaddafi, Captured Off A Cameraphone”

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40 Comments
Anonymous Coward says:

Mike you work so hard to make simple things appear complicated.

The AFP photographer owns the rights to his image, that of the camera phone and it’s image. The “freedom fighter” owns the copyright on the original image.

For the moment, nobody seems to own the rights, because the work hasn’t been registered:

http://www.mondaq.com/article.asp?articleid=8111

So I think you are making a mountain out of a molehill on this one.

Anonymous Coward says:

Re: Re: Re:

Ahh, you are THAT confident in Libyan copyright law… nice!

The photographer (AP) owns the rights to his own image, because he is claiming those rights outside of Libya. Inside Libya, it appears nobody owns the rights unless they take a registration action.

Got it. Makes perfect sense. There is nothing here for Mike to get excited about.

Anonymous Coward says:

Re: Re:

It’s even simpler than you describe it.

While true, the photog “owns the rights to his image,” the point is that those “rights” hardly mean squat in this instance. The “rights” he has are those that are bestowed by the copyright law, and here, since it’s just a picture of a picture, copyright law doesn’t give him any rights. Sure he can slap his name on it and have people pay him for using “his image,” but that’s neither here nor there when it comes to understanding what rights he really has.

It is indeed very simple: just because one creates does not mean one owns.

Matt (profile) says:

Re: Re:

Copyright inheres immediately in Bern Convention countries and the U.S., regardless of registration. At least if he had been in the U.S., the cameraphone operator would own the copyright to the image (and video) he took. The AFP copyright would cover only the creative, separately copyrightable elements in the derivative work – the photograph of the screenshot. If Mike went back to the same smartphone and took a photograph of its screen, he would not infringe the AFP copyright.

But… what if someone were to edit the image without touching any of the creative elements AFP introduced? That would not infringe AFP’s copyright.

Anonymous Coward says:

Re: Re: Re:

I believe the point here is that we are better than him. Give him the dignity afforded to any human and rise above how he treated others.

I will not weep for this man. His actions were atrocious. He was a monster, barely worthy of the name ‘human’. However, stooping to his level chips away at your humanity. It’s like being an asshole to someone because they’re an asshole to you. That doesn’t stop people from being an asshole, it feeds them.

hothmonster says:

Re: Re: Re: Re:

I agree in part. I understand the locals sharing these photos and taking pleasure in them. I can understand the urge to be there and take the photos and be in the photos. But for us outsiders to revel in this and for our major news outlets to put this image everywhere is pretty disgusting. Let alone the photographer who takes a picture of a rebels picture than sells it as his own, nothing like a little blood money i guess.

Andy J (profile) says:

Anon @ 11.25. Since any dispute over infringement is most likely to occur outside Libya, the importanty fact is that Libya is a signatory of the Berne Convention. Berne stipulates that there is to be no mandatory registration of copyright (one of the reasons the US did not join until March 1989), and in any case the 1968 Libyan Copyright law says that although copies of a work have to be lodged with the Ministry of Information and Culture (and there is a penalty for not doing this) “Non-depositing shall not result in prejudicing the copyrights stipulated by this law. These provisions do not apply to works of art published in newspapers and periodicals, unless they were published separately.“*
Therefore the statement that “nobody owns the right because the work hasn’t been registered” is untrue.

*Translation/source: the Libyan govt “Copyright Protection Law, published in the Official Gazette, Issue No. 10 of 30/3/1968.” wikipedia article on the Copyright Law of Libya

Chosen Reject (profile) says:

Re: Re:

What you say might very well be true. But let’s not miss the forest for the trees here, and remember that this picture is of a dead Gaddafi after he was overthrown. Libya the territory still exists, but Libya the government could be said to be in a bit of a transition at the time of the photo, so what laws/agreements/etc are in effect is a bit in question right now.

G Thompson (profile) says:

Re: Re: Re:

What the picture is of is irrelevant.

The Berne convention is in effect, as are all international treatise, until at such time that a Libyan government with appropriate authority (whether transitional, elected, or whatever) can negate that treaty(s).

The Berne convention as Andy stated is one of those things that the USA government really doesn’t like since it creates an equal playing field for all signatories in regard to copyright and that no registration is required so that the originating artist has full rights no matter what organisation tries to claim title and rip them off.

Tadley Acres says:

Wow. It’s incredible how rabid people can get when they wish to overlook the one critical factor; permission.

Sure those of you who want to set up a business are welcome to take pictures of every picture on the Getty site to sell or record movies while at the cinema for your market stall. All you’ll need to get started is permission from the copyright holder. Crack on then… Ah, they said no? That’s a shame I guess you won’t be able to do that. However, the photographer above actually approached the copyright holder and personally requested permission to take the photo. The copyright holder even assisted him as he took it apparently. The agreement was made with the owner’s understanding that the photographer was clearly a professional and taking it for the purpose of his work. The guy kept the video and sold it on to a variety of other agencies by the looks of it so will surely have made a nice profit out of it.

So when it comes to claims of theft and universal copyright law collapse, get a grip.

Tadley Acres says:

Re: Re: Re:

That’s entirely between the original copyright owner and the photographer. To basically call him a thief when you have no idea of the full situation on the ground is somewhat ridiculous. Here’s a thought; maybe he was happy for the picture to be out there? Maybe he was happy to see Gaddafi dead and the photos all around the world? You’ll be amazed but some people are happy to give pictures away. As it happens in this case, the guy wanted to sell the video (which he did) but was happy to let the photographer take a picture.

The only people who should be concerned about the details of the deal are the original owner and the photographer. It’s not up to people with no idea on what happened to throw accusations of ethical issues and copyright theft around. While AFP’s theft of images in Haiti was a real low and cannot be justified in any way, comparing the two situations isn’t really possible.

jane hamilton-post (profile) says:

That he should use the photograph is fair enough. That he should claim copyright is a despicable contortion of the law as set out in the Berne convention, which has been signed by many countries and could be regarded as default, at least in the spirit of the thing. The whole point here, imho, is that the spirit of the law has been broken against the wheel of it’s technicality, as indeed has the spirit of the law as signed under the Geneva convention regarding the treatment of prisoners of war.
I am sure the guy with the sand running out of the holes in his shoes will at some stage want some reparation on his video screen shot. I certainly would.

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