Malcolm Gladwell's latest book is called "David and Goliath: Underdogs, Misfits, and the Art of Battling Giants.” It explains how underdogs can actually have an advantage under the right circumstances. For example, the rock that came out of David's sling had the force of a handgun. Goliath- big, lumbering and covered in heavy armor, actually had no chance.
I thought of that confrontation as I read about Daniel Morel, a photojournalist from Haiti who recently won a $1.2 million verdict from Agence France-Press (AFP) and Getty Images Inc. AFP is a French news service similar to the Associated Press. Getty Images is a stock photo agency. The two media giants published photos of the aftermath of the 2010 Haitian earthquake without Morel's permission. The jury deemed the infringement willful, which contributed to the steep verdict.
Morel took a number of photos after the devastating earthquake. He then posted them on Twitter. A Twitter user named Lisandro Suero re-posted the photos. Someone at AFP found the photos and uploaded them to its photodesk. AFP credited Suero. AFP also submitted the photos to Getty Images so that Getty could make them available commercially.
The day after AFP submitted the photos to Getty, it learned it had incorrectly credited the photos to Suero. When AFP notified Getty, it re-transmitted some of the photos with a byline crediting Morel. That, however, did not solve the problem, since a company called Corbis Corp., a Getty competitor, had the exclusive right to license the photos. But even after Corbis demanded that Getty "kill" the Morel photos, it was weeks until that happened, and in that time the Washington Post published four of the photos, crediting three of them to Suero.
In a willful infringement case, the copyright holder is entitled to maximum statutory damages of $150,000 for each infringement. It appears the $1.2 million reflects the maximum award.
The important point here is Morel did not "waive" his copyright by posting the photos on Twitter. That may seem odd. How can he post his work for free on a platform that's available for free across the world and then complain when someone else posts the same photo? The answer is Morel has the right to use his photos as he sees fit. Posting them on Twitter is almost like a marketing strategy. The Twitter post creates interest in the photos. Anyone who sees the photos and wants to use them has to pay Morel for that right.
AFP and Getty must feel like they got hit in the head with a rock.