Unless you’ve been hiding under a rock, the chances of you seeing a recent image of Mount Everest with a queue leading to the summit are high (excuse the pun). The image has reignited the issue of tourism allowing, arguably, ill- prepared and under experienced climbers the chance and wonder to stand at the top of the world; 18 people have died this 7 month climbing season, making it the most deadly on record. There is also a sub story; the Nepalese man who took the image, Nirmal Purja or Nims for short, spent 16years in the British Military including serving with Special Forces. Capturing the image during Project Possible 14/7, an attempt to climb all 14 of the 8,000m Himalayan peaks in a single season, he has not personally earned from the photograph.
Given the elements of the story, it is perhaps no surprise the issue of compensation is doing the rounds with explorer Levinson Wood and TV presenter Ben Fogle lending weight to what has become an outcry. However the clamour for payment and rush for legal action are overwhelming the details behind the image release and spreading misinformation, no matter how well intended (and yes, I appreciate the irony of this, well intended, blog post). Unfortunately poor communication from team Project Possible are not helping matters.
The main response behind the call for payment to Nims seems to stem from his Tweet stating;
“It’s UNFAIR & UNPROFESSIONAL for these big agencies to use it [the image] without asking…”
While, according to the project lead PR;
“The permissions were granted to AFP with clear request for copyright acknowledgement…”
And in a second tweet;
“… the copyright notice which was agreed to read @nimsdal Project Possible.”
Disclaimer: I am not a lawyer. Indeed I have no legal training. All views expressed are my own. You should do your own research and seek professional advice should you require it. Full disclaimer here.
Which means people are agitating for Nims to be paid for something Project Possible offered for free. However, for sake of argument, should Nims wish to pursue the matter, the key issue in my mind is the question of governing or applicable law; ie the law of which country governs the issues to do with this potential copyright infringement? Given Nims’ British Army service and the fact Project Possible and his fundraiser page are in English, it is easy to assume that the governing law in this instance is England and Wales. And should Project Possible have handed over the image under their own T&Cs, under England and Wales law they would have had to assert their moral rights, something that is unclear from the above statements. However it is worth noting AFP is French. Had Project Possible been present a contract by AFP… this is now where it gets complicated as enforcing rights in a different country becomes difficult. And for good measure a third set of applicable law may need to be considered as Nepalese Law includes a section on Mountaineering, of which Para24 states;
“Broadcasting of News Relating to Mountaineering Expedition: The mountaineering expedition team shall provide all the news relating to mountaineering expedition through the liaison officer to the Government of Nepal.”
This law raises more questions such as the time frame for providing news and what is the definition of ‘news’, however key to Project Possible is the question whether or not they were allowed to distribute the image in the first place.
Another call to arms on social media has been the naming and shaming of all channels using Nims’ image, which according to some stands at 221. However as the image was distributed by an agency (AFP and I believe Getty), this makes the parties who sourced the image secondary infringers and it is reasonable for them to believe AFP had secured the necessary rights. This is a strong defence and makes trying to bring successful legal action against them difficult. Presumably many of these secondary infringers have long term relationships with AFP and are reliant on them for many of their images, hence it is not in their interests to openly point the finger at AFP and accuse the agency of being misleading.
Further comments on Twitter include anger over abuse of moral rights by cropping out Nims name from his image. This neglects the fact agencies have strict photography submission standards, which do not include watermarking by photographers. Other supporters are proposing potential amounts which may be recouped suggesting action be taken against all infringers, however this ignores the secondary infringer argument and the fact Nims has no record of being a photographer, which is important when establishing the value of an image. There are also various accounts supporting Nims and posting further images of him… without crediting the photographer. Oh the irony.
For sure the agencies involved have not covered themselves in any glory; both AFP and Getty have watermarked the image as their own without credit to Nims and according to some have charged their clients for the image licence (*at time of writing I am unable to find the image on Getty and it appears an account is required to access AFP images). And while not an excuse, bear in mind AFP deal with 3,000 images daily; it is entirely possible Nims’ contract details simply got lost. It is also worth pointing out different agencies have different rules, including attribution in regards to sub- licensing. However it is impossible to accurately plan a course of action, legal or not, without fully understanding how and when the image was first released. It is easy to jump on the social media band wagon and sabre rattle, but inaccurate details and language will only confuse matters.
Obviously there is personal emotional attachment with Everest for Nims, not including the risk of personal injury in taking glove off to capture the image. However, and in regards to legal action, there is a need to remain objective. There is a trade off between time and effort versus potential benefit gained if successful with a legal challenge. It is rarely an easy formula and the outcome is often hard to swallow. I’m sure Nims has, in his course of duty, taken what the British Army call a Condor Moment, ie take a second to assess the situation dispassionately in order to plan the best course of action. With all the messages being sent to Project Possible, now is the time for a Condor Moment; which I believe is being taken with the issue being seen by an IP lawyer. I wish Project Possible the best of luck, this issue is looking complicated. Lastly I disagree with the argument that free work raises exposure and offers future earnings; as this case shows, if something goes wrong you’re potentially left with no exposure if your credit is missing. However, should Nims raise his fund raising target amount due to what is happening, this may become my notable exception.
Image credit: @nimsdal Project Possible