August 14th, 2014

Judge Upholds $1.2 Million Verdict in Morel v. AFP Copyright Case

A federal judge has upheld a $1.2 million jury award in favor of photographer Daniel Morel, after determining that there was sufficient evidence presented at the trial last year to support the verdict.

Morel won $1.2 million in damages after a federal jury determined that Getty and AFP willfully violated his copyrights by uploading eight of his exclusive news images of the 2010 Haiti earthquake, and distributing them without his permission. The award also included an additional $20,000 damages for violations of the Digital Millennium Copyright Act.

Getty and AFP had appealed the $1.2 million award on the grounds that there was not enough evidence presented at the trial to establish willful copyright infringement. They had asked the court to vacate the jury’s finding of willful infringement, reduce the award to Morel, or grant a new trial.

A federal judge rejected the appeal.

“There was evidence from which the jury could have concluded that the defendant’s infringement (and particularly AFP’s) was not just willful but reflected a gross disregard for the rights of copyright holders,” US District Court Judge Alison Nathan wrote in a decision handed down yesterday. She added, “In light of all the consideration that the jury was entitled to consider, [reduction] of the $1.2 million statutory damages award is not required.

“The evidence was plainly sufficient for the jury to conclude that AFP’s infringement was willful under either an actual knowledge or reckless disregard theory,” Nathan said. She said the evidence for willfulness on Getty’s part was “somewhat thin” in comparison to the evidence against AFP. But she went on to say that the evidence of Getty’s willfulness “was sufficient to support the jury’s verdict.”

Morel had uploaded his images to Twitter, offering to license them to news outlets. The images were stolen and re-distributed by another Twitter account holder. Judge Nathan cited evidence presented at trial that Vincent Amalvy, AFP’s  Director of Photography for the Americas,  knew or should have known that the images were actually Morel’s, and that AFP didn’t have permission to distribute them.

The evidence against Getty for willful infringement was that it left Morel’s images on its web site under a false credit for more than two weeks after AFP sent a “kill notice” telling Getty to remove the images.

The award was the maximum amount of statutory damages possible under the law.

AFP and Getty had asked the court to reduce the $1.2 million award on the grounds that it was based on a “speculative” figure of actual damages amounting to $275,000 in lost sales. Judge Nathan said that on the basis of actual downloads (1,000 or more) of the image and sale prices, the actual damage estimate was reasonable. But she went on to say that juries aren’t required in any case to base statutory awards on actual damage estimates.

She also rejected arguments that the $1.2 million statutory award was “instinsically excessive.” Noting that courts defer to the prerogative of juries to set damage awards and rarely set them aside unless they “shock the judicial conscience and constitute of denial of justice,” Nathan said AFP’s actions in particular could be seen as “gross disregard for the rights of copyright holders” and let the jury award stand.

At the same time, Nathan upheld a $10,000 jury award against AFP for Digital Millennium Copyright Act (DMCA) violations, while vacating a $10,000 award for DMCA violations against Getty.

The DMCA makes it unlawful to intentionally remove or alter copyright management information, or to knowingly provide or distribute false copyright management information with intent to conceal infringement.

Evidence presented at trial showed that Vincent Amalvy, the AFP Director of Photography, knew that Morel’s images were falsely credited to another Twitter user, but  distributed the pictures with the false credit anyway, Judge Nathan wrote in her decision.

Getty violated the DMCA by continuing to distribute the images under a false credit, after receiving notice from AFP to remove the images, the judge said. But Getty was not liable under a DMCA provision for distributing the images with knowledge before the fact that the image credits had been illegally altered.

Related Articles:

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

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

February 13th, 2012

Photog Says Radio Station Stripped His Credits, Infringed His C-rights

A Colorado photographer says a Denver radio station took 21 of his images from the Web site of a competing radio station, stripped the images of his credits and copyright notices, and published them on its own site and Facebook page without permission. The photographer now accuses the station of refusing to pay a retroactive usage fee.

Photographer Scott D. Smith of Denver says radio station 92.5 The Wolf stole his images of country star Jason Aldean from the Web site of 98.5 KYGO. Smith shot the images at a concert last October, and licensed them to KYGO, which has been a client of Smith’s for the past six years. All of the images he licenses to KYGO, including the Aldean images, display his credit and copyright whenever viewers scroll over them or click on them, the photographer says.

The Wolf displayed the images for about a week, and also made them available on its Facebook page “for the whole world to download,” Smith tells PDN.

When Smith finally got the station manager at The Wolf on the phone to hear his complaint, he says, she apologized, told him the image would be taken down, and offered Smith free advertising as compensation. Smith declined. “I’m very loyal to KYGO, plus that (advertising) doesn’t compensate me for what [The Wolf] did,” he says.

Over the past four months, Smith has tried unsuccessfully on numerous occasions to get the station or its corporate owners–Wilks Broadcasting Group of Duluth, Georgia–to pay a fee for the unauthorized use of his images.

But managers and owners won’t return his calls, Smith says.

Recently, he got through to a Wilks employee who informed him that the company has determined that it has no responsibility to compensate him. “She said, ‘Do whatever you have to do,’” the photographer recounts.

Smith hasn’t filed a lawsuit for copyright infringement–at least not yet. “I talked to some lawyers who told me it’s going to cost a fortune, take forever, and they’ll just try to wait me out,” the photographer explains. So he’s trying to generate negative publicity for the station in an attempt to shame The Wolf into paying him.

“I think people are tired of corporations screwing people over, and saying ‘We don’t have responsibility’ when they’ve done something wrong,” says Smith.

Jeff Wilks, CEO of Wilks Broadcasting, did not respond to several requests from PDN for comment. But he recently told a Denver alternative newspaper, “There was no copyright on the photos. We found the photos, then we were notified about the photos, and the photos were taken down immediately.” He indicated to the newspaper that Wilks Broadcasting doesn’t intend to pay Smith a fee.

Asked what he considers a fair fee, Smith says, “In the beginning, I was willing to really work with them on a price. Since they are lying and making this as hard as possible, I feel I would start at around $500 an image. I do feel that is fair since the images were used as advertising for the station.”

Smith’s allegations, if true, echo a case last year in which a federal appeals court upheld a photographer’s claims against a New Jersey radio station for copyright infringement, as well as for violation of the Digital Millenium Copyright Act (DMCA.) The DMCA violation resulted from the radio station stripping a photographer’s credit and copyright from an image that it copied and then displayed on its web site without the photographer’s permission.

Related:
Removal of Printed Photo Credit Qualifies as DMCA Violation, Court Says
TV Networks Play Fast and Loose with Photographers’ Copyrights