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

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