Getty, AFP Appeal $1.2 Million Jury Verdict in Daniel Morel Case

Getty Images and Agence France-Presse (AFP) have asked a federal district court to undo the $1.2 million jury verdict against them for willful infringement of photographer Daniel Morel’s copyrights, calling the verdict “a miscarriage of justice.”

In a brief they submitted to the US District Court in Manhattan last week, the agencies argued that “no reasonable jury could conclude either AFP or Getty acted willfully as defined under applicable law, based on the evidence in the record.”

They asked the court to vacate the decision in one of three ways: declare that AFP and Getty are liable for “regular” rather than “willful” infringement, thereby forcing a reduction of the damages awarded; give the agencies a chance to re-argue their case before a different jury; or simply cut Morel’s award for copyright infringement from $1.2 million to $200,000 and call it a day.

A jury awarded Morel $1.2 million on November 22 after it determined that AFP and Getty Images willfully infringed his copyright by uploading eight of his exclusive news images of the 2010 Haiti earthquake, and distributing them without his permission. The award also included damages for violations of the Digital Millennium Copyright Act.

The award was the maximum amount of statutory damages possible under the law in the case, given that the jury found that both agencies infringed with willful intent.

In asking the court to overturn the verdict, Getty and AFP noted the the jury award was “60 times the maximum actual damages [Morel] could have recovered based upon [AFP's] after-the-fact willingness to pay him $20,000.” They also said the award was 4,700 times the day rate that professional photographers are paid on a freelance basis.

AFP had initially distributed Morel’s images under the name of Lisandro Suero, who had stolen them from Morel’s Twitter feed. Both AFP and Getty argued in court that their distribution of Morel’s images was not willful, but instead the result of honest mistakes that they tried to correct.

After learning that the images were Morel’s, AFP offered to pay him $20,000. He rejected the offer.

Morel’s attorney got a key AFP employee to admit in court that in his hurry to upload images of the earthquake, he had not followed company guidelines for obtaining news images from online sources.

The infringement “was obviously willful on AFP’s part because they didn’t check on the author of the photographs. The whole mess stemmed from that,” a juror told PDN after the verdict was handed down.

That same juror explained that the jury consider Getty’s infringement willful because e-mail evidence showed some Getty employees knew almost immediately that the images were Morel’s. Still, the agency continued to distribute them with credit to Suero for more than two weeks after the earthquake.

In their motion to reduce the award, Getty and AFP argued that the evidence does not show willful infringement. The agencies also argued that they did not violate the Digital Millennium Copyright Act, contrary to the  jury’s findings.

The agencies have an uphill battle to vacate or reduce the verdict because judges are often reluctant to overturn jury verdicts.

But the agencies have incentive to try because there’s more at stake than a $1.2 million judgment for one photographer: If the Morel verdict stands, it could encourage other photographers to play legal hardball with news agencies that rush to distribute breaking news images without permission, while hoping to negotiate fees with copyright holders after the fact.

Related:
Jury Awards Daniel Morel $1.2 Million in Damages from AFP, Getty Images

Morel v. AFP Copyright Verdict: Defense Strategy to Devalue Photos and Vilify Photographer Backfires

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10 Responses to “Getty, AFP Appeal $1.2 Million Jury Verdict in Daniel Morel Case”

  1. Diane Says:

    I certainly hope the amount of this award stands. Photographers need some respect for their work and rights. Next up, I wish someone would start a crusade to make it illegal to strip metadata.

  2. AFP and Getty Fight $1.22 Million Morel ruling | pauloinstagram Says:

    […] In November, we covered a jury ruling on the Daniel Morel vs AFP/Getty case which saw the two media organizations hit with the maximum possible penalty for infringing on the photographer's eight images of the Haiti earthquake in 2010. Slapped with a $1.22 million dollar fine, AFP and Getty have now mounted an appeal on the ruling. […]

  3. John McDermott Says:

    It should be the law that when a defendant appeals such a ruling that if the appeal is considered to be frivolous or an abuse of process to delay payment then the award gets increased by, say 100 or 200 per cent, and the plaintiff’s legal costs are paid by the appellant. It might serve to discourage such conduct.

  4. Jay Hirsch Says:

    In a word Getty Images is a “bully” in the photojournalism world. “Ignorance” on their part is an insult to any photographers intelligence. They know and knew very well what they were doing

  5. Brad Trent Says:

    Fuçk Getty and fuçk AFP. All they’re doing now is trying to wear him down further by tying him up in court until he quits or goes bankrupt. I so wish the appeals court could increase the award against these two companies.

  6. Nat Says:

    Diane, it already is illegal to strip metadata from files. That’s part of the DMCA 1998.

  7. John T Says:

    “Judge, we weren’t ‘willful’. We’re just stupid, therefore you should throw out the award”.
    Uh huh, sure.

  8. Pat Rogers Says:

    Of course Getty and AFP committed willful infringement. They knew exactly what they were doing as they have been doing exactly the same thing for years–negotiating “fees with copyright holders after the fact.”

    AFP and Getty insult the jury by calling it “unreasonable.” Who chose the jury? The attorneys for AFP, Getty and Mr. Morel.

    Where does the money (about $8 mill so far) come from to pay the attorneys for AFP and Getty? Out of the pockets of the underpaid photographers and contributors to the agencies.

    Instead of AFP and Getty hiring their typical $1000/hour attorneys, perhaps they need to hire $2000/hour attorneys. (Sarcasm.)

  9. Jamie Pflughoeft Says:

    “But the agencies have incentive to try because there’s more at stake than a $1.2 million judgment for one photographer: If the Morel verdict stands, it could encourage other photographers to play legal hardball with news agencies that rush to distribute breaking news images without permission, while hoping to negotiate fees with copyright holders after the fact.”

    EXACTLY. And this is why this verdict is so important.

    “In their motion to reduce the award, Getty and AFP argued that the evidence does not show willful infringement. The agencies also argued that they did not violate the Digital Millennium Copyright Act, contrary to the jury’s findings.”

    Really? Cause it sounds to me like that’s exactly what happened, according to the evidence and the jury AND judge’s findings. It’s encouraging to know that the latter individuals did the right thing, even though Getty and AFP clearly did not. It’s sad that the agencies that are supposed to represent photographers are the ones with so little respect for them….. ::shaking head::

  10. Dave Says:

    So $1.2m is 4,700 time the day rate for a professional photographer on a freelance basis. Hmmm, let me see. $1,200,000 / 4,700 = $255.32 A day! If that is indeed correct they sure can afford to pay since they’ve been underpaying the industry!