Photo agency refuses to return copyright to photographer, claims journalists don’t have copyright protection: Digital Photography Review

Do photographers own the rights to their images? This is the question at the center of a legal battle between photographer Francisco Leong and his former employer, Agence France-Press (AFP).

Leong, a Lisbon, Portugal-based photojournalist, had worked under contract for AFP. He first joined AFP in 2005 as a stringer and became a staff photographer in 2010 before leaving the agency in 2019. The agency in France claims that it owns Leong’s images.

However, Portugal’s Journalist Statute and Code of Copyright appear to give ultimate rights to journalistic work created during employment to the original creator. Leong told Press Gazette that ‘It is a rule that stands above any individual contract and states that the copyright belongs to a journalist, period… on my contract with AFP there was a clause saying the copyright was for AFP. I believe this violates the law and therefore is null and void.’

The AFP’s defense goes beyond the contract Leong signed. According to Leong’s union, Sindicato dos Journalistas (SJ) in Portugal, AFP is also arguing that it distributes news within the public domain and that what it publishes doesn’t deserve protection under copyright law, as it constitutes ‘mere vehicles that broadcast to the public the set of facts that portray a particular daily event or news.’ SJ argues that AFP’s defense could be a ‘scorched-earth policy’ and that it threatens the livelihoods of news photographers and agency journalists if AFP wins in a European Union (EU) court.

A photograph showing AFP’s headquarters in Paris, used under CC BY-SA 4.0

AFP goes even further, arguing that ‘mere news or photographs that merely report news events are not creative, do not possess originality, and, as such, do not deserve legal protection.’ SJ believes this argument could pose a genuine threat to news agencies in Europe, including AFP, to charge clients for photojournalism and journalism at large.

The SJ said, ‘…if the court rules in favor of AFP on this point, the business model of all news agencies will be put at risk, and thus the jobs of thousands of journalists. That is because if journalists lose protection over their work as it is not eligible for protection, logically their employers cannot claim protection over it either.’

Interestingly, despite its public domain argument, an AFP spokesperson told Press Gazette that ‘Francisco Leong’s photos are not in the public domain because the rights belong to AFP, regardless of whether they are subject to copyright under Portuguese law.’

Also at issue in the case is how AFP treats journalists and photographers who aren’t French. AFP doesn’t recognize copyright for non-French journalists and photographers. The SJ has asked the International Federation of Journalists and the European Federation of Journalists for support, stating that AFP discriminates against non-French staff. AFP said, ‘The risk is that journalists everywhere will get burned. We urge our fellow unions to make their members aware of this case and be prepared to defend our economic rights to our journalistic works.’

Leong is not asking for monetary compensation from AFP but wants the rights to his images. Leong told Press Gazette:

‘I am claiming my copyright because AFP held my pictures after [I left] instead of sharing the profits with me same as the French photographers and keeping the money for themselves… I want justice […] AFP line of defense is so absurd, so selfish, so short-sighted, that it’s hard to believe.’

Leong has asked Lisbon’s Labor Court to intervene in the court case before AFP’s defense is heard. As of now, the hearing has been delayed until October 6.

This case appears to have implications beyond Leong’s copyright ownership. If an EU court rules in favor of AFP, the result could undermine photojournalists’ rights throughout Europe. The result could also harm the ability of photographers and agencies alike to demand compensation for different types of news and photographs. Again, AFP argues that news or photographs that report news events aren’t creative and original and do not deserve legal protection. AFP appears to be arguing both that it owns Leong’s images and that Leong’s images don’t deserve copyright protection in the first place. These are significant claims.

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