January 13th, 2014

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

November 22nd, 2013

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

A jury has awarded photographer Daniel Morel $1.2 million in damages after deciding that Agence France-Presse (AFP) and Getty Images willfully violated his copyright. The award is the maximum amount of statutory damages possible under the law. AFP and Getty Images were also found liable for 16 violations of  the Digital Millenium Copyright Act. The verdict was read in Federal Court in Manhattan this afternoon, Morel’s attorney, Joseph Baio confirmed.

Throughout the trial, which  began on November 13, attorneys for Getty Images and AFP had argued that the distribution of Morel’s images was not willful infringement but the result of mistakes.  Lawyers for AFP and Getty Images had suggested an award of $275,000. That amount was based on a photographer’s day rate of $275 multiplied by 1,000, attorney Joseph Baio told Rangefinder’s Lindsay Comstock.

The case began in 2010 when Morel alerted AFP and Getty Images that they were distributing his exclusive images of the January 12, 2010 earthquake in Haiti without his permission; Morel received no payment for the use of his images.  A Federal Court judge ruled in January that AFP, which originally distributed his images, had infringed his copyright. The jury trial that was to determine whether or not the infringement was willful, and what statutory damages should be awarded to Morel.

Lindsay Comstock at Rangefinder reports that Morel’s lawyer described the photographer as “delighted” with the verdict, while the defense was “dumbfounded.”

Related Articles
In TwitPic Copyright Claim, Daniel Morel Seeks $13.2 Million from AFP, Getty

AFP, Washington Post Violated Daniel Morel’s Copyrights, Judge Rules

September 25th, 2013

In TwitPic Copyright Claim, Daniel Morel Seeks $13.2 Million from AFP, Getty

©Daniel Morel

©Daniel Morel

Photographer Daniel Morel is seeking as much as $13.2 million from AFP and Getty Images at a trial to determine damages for copyright infringement of his exclusive images of the aftermath of the 2010 Haiti earthquake, which Morel had posted via Twitter. The trial is scheduled to begin November 12.

A federal court determined earlier this year that AFP infringed Morel’s copyrights in 8 photographs by distributing those photos without his permission.  The November 12 jury trial is meant to determine the amount of damages owed to Morel, based upon the question of whether or not the infringements were willful.

Morel asserts that the infringements were “willful and intentional,” and says in court papers  that “AFP knew or should have known the images were his when they distributed them without permission.” For copyright infringement, he is seeking a maximum of $1.2 million in statutory damages.

Morel also contends that both AFP and Getty images violated the Digital Millennium Copyright Act (DMCA) by intentionally removing copyright management information that identified the images as Morel’s. He says AFP and Getty “knowingly provided and distributed false copyright management information” to their customers. For the DMCA violations, Morel is seeing a maximum of $13.2 million.

Getty and AFP no longer dispute that they violated Morel’s copyright, but deny that they acted with reckless disregard or willfulness. They say they “do not believe Mr. Morel can meet his burden of proof on this point.” They say in the pre-trial court papers that “they believed they had the right to do so and were acting within industry norms, customs, and practice.” Getty also says it distributed Morel’s images with “innocent intent.”

Both defendants also assert that if they did violate the DMCA, Morel is not legally entitled to the level of damages he is claiming for those violations.

Morel happened to be in Haiti at the time of the January 2010 earthquake there. He posted exclusive images of the destruction on his TwitPic account less than two hours later. The images were immediately stolen and re-posted under the name of another Twitter user. AFP picked up the images and distributed them through its own image service and through Getty under the false credit.

Morel’s agent, Corbis, sent take-down notices to Getty and AFP, but it took AFP two days to issue a kill notice. And when they did, they told clients and partners to kill images credited to Morel, but not the identical images that had been sent out initially under the false credit. Getty allegedly didn’t purge the images with the false credits, and continued to distribute them.

Morel has maintained that the companies violated his copyrights willfully because at least some AFP photo editors knew the images in question were his, not those of the other Twitter user who stole the images.

In his original claim, Morel also sued several AFP and Getty customers for unauthorized use of his images. Those defendants previously settled with Morel.

Related story:
AFP, Washington Post Violated Daniel Morel’s Copyright, Judge Says

March 12th, 2013

Photogs Dish Anonymously About Clients’ Rates Via New Tumblr Site

A new site on Tumblr set up by an anonymous editorial photographer seeks to provide a platform where photographers can share information about what clients in all fields, from editorial to advertising to non-profits, pay photographers.

Still in its infancy, the site, Who Pays Photographers, is based on a similar Tumblr, Who Pays Writers, which, you guessed it, lists fees paid to writers. According to the anonymous founder of Who Pays Photographers, the response has been a bit overwhelming, indicating a serious interest among photographers to talk about, and read about, the fees clients pay for photographic work.

Thus far the site has information about The New York Times, Getty Images, AP, AFP, The Wall Street Journal, ESPN and several other clients in the US and abroad.

We exchanged emails with the creator of Who Pays Photographers to find out a bit more about her/his goals for the site.

PDN: How long have you worked as a photographer and in what field?

Who Pays Photographers: I’m an editorial photographer with 6 years experience, about half of that time as a staffer at a magazine, and more recently, as a freelancer.

PDN: What inspired you to start the site? Was it just a natural reaction to seeing Manjula Martin’s Who Pays Writers, or was there more to it?

WPP: The site was a simple reaction to Who Pays Writers, a site that was linked to a number of times during the recent Nate Thayer kerfuffle with the Atlantic. It seemed obvious that the photo industry could really benefit from having such a resource and I found it surprising that nothing of the sort existed. (more…)

January 15th, 2013

AFP, Washington Post Violated Daniel Morel’s Copyrights, Judge Rules

A federal court has ruled that Agence France-Press violated photographer Daniel Morel’s copyrights by distributing his images of the 2010 Haiti earthquake without permission.

The copyright infringement claims turned on whether the terms of service for Twitter, the social network that Morel used to distribute his images of the earthquake, gave AFP the legal right to download the images and re-distribute them.

“The Twitter TOS [terms of service] provides that users retain their rights to the content they post–with the exception of the license granted to Twitter and its patterns–rebutting AFP’s claim that Twitter intended to [give AFP license] to sell Morel’s photographs,” the court said. On that basis, it concluded that AFP was liable for copyright infringement.

The court also found The Washington Post, which published the images, liable for infringement.

But the court declined to rule on whether the infringement was willful, or whether Getty Images–which also distributed Morel’s photographs–is liable for infringement. The judge left those questions for a jury to decide. See our story on PDNonline for more details about the ruling.

--David Walker

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Morel Releases More Evidence Against AFP, Getty in Copyright Case

Insult to Injury: AFP Suing Photographer It Stole Images From  (for PDN subscribers)

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July 16th, 2012

Photojournalist Describes Wreckage in Tremseh, Syria

© AFP/photos by D. Leal Olivas

Spanish photographer Daniel Leal Olivas, who reached the Syrian village of Tremseh on Friday July 13, reports that he saw what looked to be the effects of shells fired by tanks in the village. That would contradict the Syrian government’s claims that the Syrian Army did not use heavy weapons, a violation of a UN agreement. Olivas, speaking to PDN by Skype from the Istanbul airport on July 16, also said mourning villagers begged him and his companion not to leave them.  How many people were killed in Tremseh, what kinds of weapons were used and whether the Syrian government was pursuing opposition fighters or targeting civilians remains uncertain, according to reports from the BBC, The New York Times and other news organizations, as the Syrian government and anti-government activists have made claims and counter claims about what happened.

Olivas, a news photographer, has made two month-long trips to Syria this year; his first, in April, was his first time photographing in a war zone. In the past two days, he has given interviews to Al Jazeera and to National Public Radio about what he saw in Tremseh on Friday night. “I’m not a military guy,” he told PDN, then added that “being in Syria for two months, you know what weapons they used.” In Tremseh he took photos, many of which he transmitted to Agence France Press, showing burned out homes, holes blasted through walls, and boys holding up shells that Olivas says would have been fired by a tank – presumably on Thursday. He also photographed bloody hand prints on walls. He told Al Jazeera (quoted in The Guardian’s Middle East blog), “All the tank tracks were in the ground, very fresh. Everyone was in the town very nervous, trying to show us what happened in the town.” Olivas told PDN, “Those people who came running to us, screaming what they did in Tremseh, they were either great actors or they were really freaked out. What I saw in their eyes, I felt that they weren’t lying,”

Olivas says, “I went to Syria to help Syria.” He found places to stay and got help moving around the country from locals, in particular from one person he describes as “my good friend and amazing activist.”  Olivas was in Kafranbel on Thursday when he and the friend saw a report on Al Jazeera Arabic that 200 people had been killed in Tremseh. Olivas was eager to go; his friend said, “Only God can reach there.” On Friday, however, his friend made calls and researched a route. They passed several checkpoints, Olivas says, and “ finally got there with the last minutes of light,” around 7:30pm. UN observers “arrive[d] pretty much at the same time.”

He says that the observers left after less than 20 minutes. “It was getting dark, it was so dangerous to be in that area.”  He left soon after, and says he saw no other journalists.

Olivas says before he left Syria he transmitted images to the agency AFP using a pseudonym for protection. The credits on the AFP images were changed once he was safely in Turkey. Olivas’s images and captions from Tremseh can be found on the AFP Image Forum page.

May 7th, 2012

Morel Releases More Evidence Against AFP, Getty in Copyright Case

Photographer Daniel Morel, who had his exclusive Haiti earthquake images ripped off by Agence France-Presse and Getty more than two years ago, has released more evidence in his claim against the two wire services in his ongoing fight for justice.

The new details, which are part of a motion Morel filed last month asking the judge to hold Getty and AFP liable for infringement, were sent by Morel’s lawyer to PDN and several others. They are neatly summarized by Jeremy Nicholl on The Russian Photos Blog.

Nicholl leads off by quoting an internal e-mail from AFP deputy photo editor for North America Eva Hambach:  “AFP got caught with its hand in the cookie jar, and will have to pay.” Ten days after Hambach wrote that to a colleague in March, 2010, AFP slapped Morel with a lawsuit to gag him and punish him for publicly accusing AFP of violating his copyrights.

To re-cap, Morel–a native of Haiti and a former AP photographer–was in Haiti at the time of the January, 2010 earthquake. He posted exclusive images of the destruction on his Twitpic account less than two hours later. The images were immediately stolen and re-posted under the name of another Twitter user. AFP picked up the images and distributed them under the false credit through its own image service and through Getty. They did that even though editors at both companies knew that the images were Morel’s, and that they did not have his permission to distribute them.

Morel objected. His agent, Corbis, sent take-down notices to Getty and AFP, but it took AFP two days to issue a kill notice. And when they did, they told clients and partners to kill images credited to Morel, but not the identical images that had been sent out initially under the false credit. Getty allegedly didn’t purge the images with the false credits, and continued to distribute them.

With Morel continuing to insist that his copyrights had been violated, AFP sued, and Morel fought back. Getty and AFP have done their best to wear Morel down by dragging out the process, but the photographer has refused to give up. He has already won an important decision against AFP, which argued that anything posted on Twitpic is free for the taking, according to the Twitpic terms of service. The court summarily rejected that defense.

Meanwhile, Getty continues to try to hide behind the Digital Millenium Copyright Act. The company says, in effect, that it was merely a passive provider of server space to AFP so it shouldn’t be held liable as an infringer. On the grounds that Getty is AFP’s partner and an active marketer and distributor of AFP images, Morel is asking the court to reject Getty’s DMCA defense.

What it boils down to is a case of two companies bullying a photographer they got caught stealing from. AFP and Getty aren’t the first to move images without permission in a cutthroat business that has a history of steal-now-and-apologize-later tactics. What’s unusual is the unwillingness of the two companies to own up to their ethical lapse and legal breach by apologizing and quietly paying to settle it.

We contacted Hambach to ask her about the internal repercussions of her “cookie jar” e-mail. Was she taken to the woodshed for it? Is there any sign that AFP is taking stock of its policies with regard to recouping images? “I can’t talk about this now,” she said, ending the conversation at the mention of her e-mail.

A hearing on Morel’s motion for summary judgment is scheduled for July. The judge is unlikely to issue a decision before fall.

March 23rd, 2012

Police Intimidation Watch: Beating a Photojournalist on a Lisbon Street

©REUTERS/Hugo Correia

In another horrific incident demonstrating police brutality toward photojournalists, even in Western democracies, a Portuguese policeman attacked AFP photographer Patricia Melo as she covered a general strike in Lisbon yesterday. Workers there were on strike to protest austerity measures imposed on Portugal as a condition of the $100 billion bailout provided to the country by other European nations. Reuters photographer Hugo Correia shot this image, which mirrors this other Reuters image from last October, showing an Athens policeman punching a photographer at an anti-austerity protest in that city.

December 29th, 2011

Official News Agency of a Totalitarian Regime Doctored a News Photo. Imagine That.

© Korea Central News Agency

The photo of the funeral of Kim Jung-Il distributed by the Korean Central News Agency, the official news agency of North Korea, was stunning: Limousines driving in formation behind a giant portrait of the Supreme Leader, rows of mourners lining their route, snow whitening the ground, a giant North Korean flag billowing majestically at the top of the frame. It was picture perfect. Too perfect, apparently.

Today The New York Times Lens Blog compares the image from the official news agency with one taken at almost the same moment by a photographer with Kyodo News of Japan, and distributed by AP. Working with digital forensics expert Hany Farid of Dartmouth, they show that the image from Korean Central was Photoshopped. The Lens blog goes into lots of detail, showing (with several close ups) that some men standing on the sidelines with a camera were erased, replaced with cloned snow. (Read more about their analytical methods and see the photos here.)

Lens reports that the doctored photo had been distributed by European Pressphoto Agency, Reuters and Agence-France Presse (AFP) before the retouching was discovered by The New York Times (which had also, briefly, run the image on its Web site). Once Lens reported

Undoctored photo, © Kyodo News

that the photo was doctored, the three agencies issued kill notices, Lens reports. “This photo was altered from the source and not by AFP,” the agency noted.

Gee, if you can’t trust an official news photo from the government of a secretive nation with a history of repressing journalism, who can you trust?

Maybe the agencies can be excused for not anticipating that such a stage-managed spectacle would be doctored. The retouching doesn’t seem politically motivated, as in all those airbrushed photos from Stalinist Russia. Why would a North Korean photo editor go to the trouble of Photoshopping out a few anonymous figures?

The Lens blog offers one explanation: “totalitarian esthetics.”

“With the men straggling around the sidelines, a certain martial perfection is lost. Without the men, the tight black bands of the crowd on either side look railroad straight.” When it comes to stage-managed spectacle, symmetry is all.

August 10th, 2011

Twitter Launches Photo-Sharing Feature

Twitter has launched its native photo-sharing feature, allowing Twitter users to post photographs to Twitter without using a third-party service such as TwitPic or yfrog.

Images of 3mb or less can now be posted to Twitter by clicking a camera icon in the bottom left of the status update window. The image will only appear as a thumbnail in Twitter feeds, but users can click on a particular tweet to see the photo enlarged on the right-hand side of the page.

The launch of the function is good news considering the once-popular TwitPic signed a deal in May to license users’ photographs without compensation through World Entertainment News Network, provoking the ire of many its users.

Still, photographers should be aware that Twitter’s terms of service still give them the right to use your content or let others use your content.

Here is the relevant verbiage:

“You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods  (now known or later developed).

“Tip: This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.

“You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.”

Last year, photographer Daniel Morel sued AFP and Getty for unauthorized use of his images of the Haiti earthquake, which he uploaded to Twitpic. The defendants tried to argue that, according to the Twitter terms of service, whatever is posted on Twitter is free for the taking by anyone with access to Twitter. A federal judge rejected their argument as a misreading of Twitter’s terms of service. While those terms give Twitter and its “partners and affiliates” the right to use, copy, reproduce, publish and distribute content uploaded to Twitter, the judge noted that AFP, Getty and other defendants were merely users of the service.

Related story:
Daniel Morel Wins Pre-Trial Victory Against AFP, Getty