Morel Wins Pre-Trial Victory Against AFP, Getty

by David Walker

A federal court judge has handed photographer Daniel Morel a decisive pre-trial victory in his copyright infringement claim against AFP, Getty Images, CBS, Turner Broadcasting System and others for unauthorized use of his exclusive earthquake images from Haiti last January.

AFP, Getty and other defendants asked the court to throw out Morel's copyright claims on the grounds that Morel effectively licensed the images when he uploaded them to Twitpic, a third-party application of Twitter, the popular social networking site.

New York District Judge William H. Pauley III refused, sayingd AFP and the other defendants failed to prove they had a license to use Morel's images. Pauley also refused to throw out Morel's Digital Millennium Copyright Act claims, clearing the way for a trial.

Last month, AFP and Getty declined to settle Morel's claims on terms satisfactory to the photographer. But this latest ruling puts renewed pressure on the two organizations to offer better settlement terms to avoid a trial.

Morel sued the news organizations for infringement earlier this year (2010) after they distributed his Haiti earthquake images without permission. ABC, another network originally named as a defendant, settled with Morel in November.

Morel, who has worked in Haiti for more than 25 years, was in Port au Prince on January 12, 2010 when an earthquake struck the city. He was one of few professional photographers on the scene. He uploaded exclusive images of the damage to Twitpic. His intent was to break news of the earthquake and receive credit and compensation for licensing the images to news organizations.

The images were stolen and re-distributed on Twitpic by a Dominican named Lisandro Suero. Suero also offered to license the images. But news organizations knew that Morel was the original source, and many--including CBS and CNN--contacted him multiple times for rights to license the images. AFP also recognized the images as Morel's, and one AFP editor sent him an e-mail asking, "Do you have pictures?"

Minutes later, before Morel responded, AFP downloaded his images from the Suero Twitpic page, according to court papers. AFP began distributing the images with the credit line "AFP/Getty/Lisandro Suero." Getty then licensed Morel's photos to various news agencies, including CBS and CNN.

Afterwards, AFP employees continued to e-mail Morel to talk about his pictures, which Morel cites as evidence that AFP knew they didn't belong to Suero. AFP finally changed the photo credit from "Suero" to "Morel" on January 13, but Getty continued to license them with Suero's credit in some cases.

On January 14, AFP finally issued a "kill" for eight images credited to Morel, but the kill did not include identical images credited to Suero or five other images that should have been credited to Morel, but never were. According to Morel, Getty and AFP continued to license the images despite the kill order. Licensees included The New York Times, Time Inc, Vanity Fair, The Boston Globe, and The Washington Post, among other publications.

Judge Pauley noted in his ruling on the motion to dismiss that the licensing of Morel's photographs by AFP and Getty "impaired Corbis' ability to license them, caused losses in licensing revenue, and diluted the value of Morel's intellectual property."

Corbis is Morel's licensing agent.
AFP and the other defendants have argued that the Twitter terms of service protect them from Morel's copyright claim. According to AFP, whatever is posted on Twitter is free for the taking (and redistribution) by anyone with access to Twitter. Morel, in other words, forfeited his copyrights simply by uploading them to Twitpic.

But Pauley rejected AFP's argument as a misreading of Twitter's terms of service--which give Twitter and its partners and affiliates the right to use, copy, reproduce, publish and distribute content uploaded to Twitter.

AFP and the other defendants do not claim they are partners, affiliates, or sublicensees of  or Twipic, Pauley noted; they were merely users of the service. Moreover, the provisions of Twitter that encourage the broad re-use of content posted on Twitter "does not clearly confer a right on others to re-use copyrighted postings."

AFP and the other defendants "do not meet their burden to establish that they had a license to use Morel's photographs," Pauley said in his decision. Nor did they establish that they are third-party beneficiaries of Twitter's broad rights to re-use and re-distribute content posted to Twitter or Twitpics.

The court also rejected AFP and Getty's motion to dismiss Morel's claims against them for contributory infringement. "Morel's allegations that AFP and Getty knew the images were his, disregarded his rights, and licensed his images to third parties are sufficient to plead knowledge and inducement of infringement," the court said.

In other words, Morel's claims that AFP and Getty helped others infringe his copyrights deserve a hearing in front of a jury.

Pauley also refused to throw out Morel's DMCA claims.
The Digital Millenium Copyright Act (DMCA) prohibits anyone from knowingly providing or distributing false copyright information with intent to "induce, enable, facilitate or conceal infringement."

Morel claims that AFP falsified and removed his copyright information from his images.

"Morel set forth a factual basis for alleging that AFP knew the copyright management information  was false and intended to facilitate infringement," Pauley wrote. In particular, an AFP editor viewed Morel's images before AFP took identical images from Suero's Twitpic feed. AFP also knew Morel was a professional photographer "and had no reason to believe Suero took the photos. However, AFP credited Suero without inquiry," Pauley explained.

The court rejected AFP's argument that it didn't remove copyright management information (CMI) in violation of the DMCA. AFP says the DMCA stipulates that CMI must be removed from the photograph itself. But the DMCA "imposes no such requirement," Pauley said. CMI includes information conveyed in connection with the work in question, and not just information on the work itself.

"It is implausible that a viewer of Morel's photos would not understand the designation 'Morel' and 'by photomorel' appearing next to the images to refer to authorship," Pauley wrote.

The court did throw out Morel's Lanham Act claims against AFP and the other defendants, however. The Lanham Act prohibits false designation of origin--the passing off of someone else's goods as your own. But the court said the Lanham Act applies to trademark, not copyright.

Morel's recourse for unauthorized copying "lies in copyright law, not trademark," Pauley wrote.

The court also agreed to dismiss Morel's vicarious infringement claims against CBS and TBS for not doing enough to stop their affiliates from using Morel's images. CBS and TBS don't have enough financial interest in the actions of their affiliates to support the claim, the court said.

But Judge Pauley left standing the vicarious infringement claims against AFP and Getty--for not doing enough to stop licensees from using Morel's images after they issued the "kill" order.

Unless AFP, Getty, and the other defendants decide to settle with Morel, the case will go to trial.     

 Related Stories:  

Insult to Injury: AFP Sues Photographer It Stole Images From
The Copyright Calamity


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