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

by David Walker


©Daniel Morel
One of the eight images by Daniel Morel of the aftermath of the January 12, 2010 Haiti earthquake that was distributed without permission by AFP and Getty Images.

Photographer Daniel Morel says his decisive victory in court last week against Agence France Presse (AFP) and Getty images was not only vindication for him, but a victory for all photographers trying to eke out a living in the digital age.

A federal jury awarded Morel $1.2 million in damages after determining that both agencies willfully infringed his copyrights in 2010 by distributing eight of his exclusive news images of the Haiti earthquake without permission. 

"I hope the internet is going to be a little safer now for all artists, all photographers," he told PDN the day after the jury reached its verdict.

Morel also said he took personal satisfaction in defeating the teams of lawyers from AFP and Getty that he has been fighting for nearly four years.

  "That was the most beautiful moment of my life, the look in their faces when they lost. They were so arrogant," he said. "Those guys [AFP and Getty] knew I was small, and thought there was no way I could sue them, and they took advantage of me. They thought they were untouchable." 

Attorneys for AFP and Getty argued at the trial that their clients were duped by a man named Lisandro Suero who stole the pictures from Morel's TwitPic account, then re-posted them under his own name. AFP and Getty then unwittingly distributed the images with Suero's credit, and did their best to correct the error as soon as they realized their mistake, their attorneys argued.

But the jury didn't buy it. 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," Janice Baker, one of the jurors, told PDN yesterday.

Baker added, "They wanted to scoop that [earthquake] story and after they had published the images crediting the wrong guy, they said to themselves, 'We'll just try to to get permission from the real [photographer] later.' " 

The jury considered Getty's infringement willful, Baker explained, because it was convinced by e-mail evidence that some Getty employees knew almost immediately the images were Morel's, not Suero's. But Getty continued to distribute the images under Suero's name for more than two weeks after the earthquake.

"We couldn't believe they [AFP and Getty] were vilifying this guy [Morel]," Baker added. "It was his big moment [as a photojournalist] and he could never get it back."

Jurors awarded Morel $1.2 million on the basis of the guidelines given by the judge to determine punishment, Baker said.

PDN's efforts to identify and locate other jurors about the deliberations were unsuccessful.

AFP attorney Joshua Kaufman did not respond to PDN's requests for comment. Getty spokesperson Colleen McCabe said Getty would not comment on the case, although a Getty attorney told The New York Times that the company was "disappointed" by the jury's decision. He reiterated Getty's position that it took steps to "pull [Morel's] images and make corrections as soon as we were made aware."

The trouble began on January 12, 2010 when a major earthquake struck Haiti, killing 220,000 people. Morel, a former AP staff photographer, happened to be in Port-au-Prince on a freelance assignment for Vibe magazine that day. Uninjured by the earthquake, he immediately began walking around Port-au-Prince to photograph the devastation and victims.

With intent to show what had happened in Haiti and license his images to news organizations, Morel uploaded a selection to his TwitPic account within several hours of the earthquake. He was one of the first photojournalists to transmit images from the scene. Almost immediately, another Twitter user, Lisandro Suero, stole Morel's images and re-posted them on TwitPic under his own name. (TwitPic is an application that enables users to share images on Twitter.)

AFP photo editor Vincent Almavy spent several hours on the evening of January 12, 2010 searching for earthquake pictures to distribute to AFP clients. He eventually downloaded and distributed the images credited to Suero, and testified in court that he wasn't aware of Morel's images, or that Suero had stolen them. 

Getty, which is AFP's US distribution partner, also distributed the images with Suero's credit. The day after the earthquake, AFP issued a credit correction, but didn't kill the images credited to Suero. By the time the two agencies heeded calls from Morel, Corbis (the agency that represented Morel at the time) and Morel's attorney to cease distribution, AFP and Getty had licensed them hundreds of times and collected between $15,000 and $30,000 in revenues, according to trial transcripts.

AFP initiated legal action for defamation, charging Morel with "antagonistic assertion of [his] rights" because his attorney was sending cease-and-desist letters and demands for payment to AFP and some of its clients. AFP was seeking a declaratory judgment that it had not violated Morel's copyrights.

AFP asserted in its claim that anything uploaded to Twitter was freely available for re-distribution by other Twitter users under the terms of service of the social networking service. Morel counter-sued for copyright infringement, disputing AFP's claim that the Twitter terms of service gave a de facto usage license to AFP.

A federal court judge in Manhattan finally found in Morel's favor last January, ruling that the photographer had not forfeited any copyrights by posting his images on TwitPic. AFP and Getty were held liable for infringement. But the judge, Alison Nathan, left to a jury the question of whether the infringement was willful.

At issue in the trial were the questions of what Getty and AFP knew about the authorship of Morel's photographs, and when they knew it. In other words, did they know--or should they have known--that the images were Morel's at the time they distributed them under Suero's name?

Morel's attorney, Joseph Baio, asserted in his opening arguments that Amalvy was "worrying that AFP might end up having nothing to show about this tragedy" so he rushed to post the pictures under Suero's name without any due diligence. Baio then got Amalvy to admit under oath that he didn't follow AFP guidelines for verifying the origin, the source, or authorship of the images.

Once AFP realized the error, it corrected the credit, but continued to distribute the images, hoping to make a retroactive licensing deal with Morel.

Baio also introduced evidence showing that at least one Getty employee was aware of Morel's images within hours of the earthquake, and that he and another Getty employee failed to kill the Suero images after receiving notification of the credit error from AFP the day after the earthquake.

Despite the damaging testimony and evidence, AFP attorney Joshua Kaufman said in his closing arguments that AFP editors acted on the best information they had at the time about the origin of the images. In other words, the infringement wasn't willful, and AFP wasn't acting to harm Morel, Kaufman argued. 

Marcia Paul, Getty's trial lawyer, blamed AFP at the trial for what had happened, saying it was AFP's responsibility to get the captions correct before sending them on to Getty. Paul said that Getty employees were "well-intentioned people acting in good faith to right a wrong" after AFP sent notice that the Suero caption was incorrect. 

In an effort to minimize the penalty their clients would have to pay for the infringements, attorneys for both agencies downplayed the value of Morel's images. Day rates for photographers are only a few hundred dollars per day, and the pictures earned at best a few tens of thousands of dollars, they told the jury. Paul painted Morel as greedy, telling the jury, "He's asking you…to make him the best paid news photographer on the planet ever."

The agency lawyers also tried to blame Morel for exposing his images to theft by uploading high resolution images to the internet. Kaufman said Morel was trying to license his images himself to "cut out his agent because he wanted to make more money." Kaufman and Paul both described it as a bad business decision that AFP and Getty shouldn't be punished for. 

"It was obvious they tried to vilify the photographer," Baker, the juror, said. "It doesn't matter how he posted the images, or whether they were high resolution or not. That doesn't give anybody the right to sell his images without permission. End of story."

NPPA attorney Mickey Osterreicher, who attended part of the trial as an observer, said: "It strikes me as blaming the rape victim for wearing too short a skirt."

The verdict was a vindication for Morel, and it sent a message to would-be infringers, Osterreicher said. "The lesson is: Ask for permission." But he's not optimistic that infringement of images found online will diminish anytime soon, despite the penalty AFP and Getty are paying. 

Morel says the most difficult part of the fight for him was when AFP and Getty tried to divert attention from their infringement, "and accuse me of making mistakes because I posted pictures online."

He's adamant that he didn't make a mistake. "The internet is our last lifeline to show the world our work. These people [agencies] are abusing us by selling our work for nothing. The day after the earthquake they were selling my pictures for $4, for $9, and they were saying the pictures were worth nothing. These people really are the enemies of photography." (Paul, Getty's attorney, said at trial that "$200 was the going rate at best" for Morel's images.)

Another difficult part of the long fight, Morel added, was being "in the battlefield all alone" because he felt he got so little support from other photographers along the way.

But his advice to other photographers who find themselves in a similar situation, he says, is this: "If you love photography, you should fight for photography. My fight was for respect for photography."

Related:

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

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

AFP, Washington Post Violated Daniel Morel's Copyrights, Judge Says

Morel Wins Pre-Trial Victory Against AFP, Getty

Morel Case Highlights Copyright Risks on Social Networks (subscription required)

Insult to Injury: AFP Suing Photographer It Stole Images From

 

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