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June 30, 2021updated 30 Sep 2022 10:24am

Agency photographer attempts to take back copyright in ‘game-changer’ lawsuit

By Charlotte Tobitt

A former photographer for Agence France-Presse (AFP) has filed a lawsuit against the news agency hoping to get rid of a clause that handed over his copyright in a case that a union has warned could “burn all journalists”.

Lisbon-based Francisco Leong first joined AFP as a stringer in 2005 and became staff in 2010. Since leaving the agency in 2019 he has been trying to retrieve his copyright because he believes the clause in his contract violated Portugal’s Journalist Statute and Code of Copyright, which give ultimate rights to journalistic work created in the course of employment to the creator.

Leong, 55, told Press Gazette: “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.”

But Leong’s union, Sindicato dos Jornalistas (SJ) in Portugal, warned AFP’s chosen defence could prove to be a “scorched-earth policy” that “threatens the livelihoods” of news photographers and agency journalists across Europe if it wins in an EU court.

According to the SJ, AFP’s defence argues that the news it distributes is in the public domain and does not 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”.

AFP has also argued “mere news or photographs that merely report news events are not creative, do not possess originality, and, as such, do not deserve legal protection,” according to the SJ.

The union said this argument could threaten the right of AFP and other agencies such as Reuters and Getty to charge their clients for news journalism.

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Although the international Berne Convention on Intellectual Property does not cover “news of the day”, courts have generally seen this as excluding only the raw facts, not the manner in which journalists present them.

The SJ said: “…if the court rules in favour 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.”

Asked about its defence, a spokesperson for AFP told Press Gazette: “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.”

AFP was also accused of discrimination because it does recognise copyright for journalists and photographers on French contracts.

The SJ has written to the International Federation of Journalists and European Federation of Journalists asking for support, saying: “AFP appears to be waging a scorched-earth policy against non-French staff.

“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 told Press Gazette he is not seeking any money, saying: “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 defence is so absurd, so selfish, so short-sighted, that it’s hard to believe,” he added, claiming that if the agency wins it would be a “game-changer”.

Leong has asked Lisbon’s Labor Court to intervene in the case before AFP’s defence can be heard but the hearing has been delayed from Thursday (24 June) until 6 October.

Picture: Jose Sena Goulao

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