A picture is said to be worth a thousand words, right? Well, eight pictures are worth $1.22 million, in the case of Haitian photographer Daniel Morel. Late last month, jurors in the copyright infringement case against Agence France-Presse (AFP) and its U.S. distributor Getty Images awarded Morel $1.22 million in damages for willful copyright infringement and violations of the Digital Millennium Copyright Act (DMCA). This case offers a cautionary tale for those trying to navigate the “Wild West” environment of digital content in social media. According to Morel’s attorney, this appears to be the first time a digital licensor has been found liable for willful violation of a photojournalist’s copyright in his own works.
Following the January 2010 Haitian earthquake, photographer Daniel Morel took photographs of the ensuing chaos. Within two hours, he had hastily uploaded eight high-resolution images to his TwitPic account, seeking to preserve the images with limited electricity and other resources following the earthquake. Another Twitter user, Lisandro Suero, copied the images, claimed them, and posted them to his TwitPic account under his name. AFP found the images on Morel’s page, but when he did not respond fast enough, AFP contacted Suero who gave AFP his copies of Morel’s images. AFP then distributed those copies to Getty Images with credit to Suero (not Morel). Getty, in turn, distributed the copies to a large number of international media outlets, including CNN, The Washington Post, ABC, CBS, The New York Times, and others.
Morel, of course, objected to this, and thus began AFP’s and Getty’s haphazard efforts to kill the distribution of the photos. AFP filed a declaratory judgment action in federal district court in New York against Morel asking the court to find that there were no grounds to find it liable for infringing Morel’s photographs and bringing claims against Morel for interfering with its business operations. That backfired when Morel counterclaimed, alleging violations of the U.S. Copyright Act and the DMCA against AFP and Getty Images. Morel’s DMCA claims alleged miscrediting his photos: a claim for falsifying his copyright management information (CMI) with intent to induce infringement in violation of 17 U.S.C. § 1202(a) and a claim for removal of CMI also with intent to induce infringement in violation of 17 U.S.C. § 1202(b).
AFP had published the photos with a credit line of “AFP/Getty/Lisandro,” which constituted CMI. Morel alleged that AFP knew the CMI was false and intended to facilitate infringement. AFP had viewed Morel’s photos first before seeking the same photos from Suero. Morel further alleged that AFP then credited Suero “without further inquiry” and had “no reason to believe” that Suero had taken the photos.
Also interesting is that Morel did not embed a copyright notice or other CMI information on his photos. Instead, he included the CMI attributions “Morel” and “by photomorel” on the TwitPic page where his photos appeared. At the motion to dismiss phase of this case, the court held that the statute does not require CMI to appear on the photo itself. Rather, the court very broadly held that CMI must be “in connection with copies” of a photo.
In early 2013, the New York court found that AFP and Getty Images were both liable for copyright infringement under the U.S. Copyright statute and set the case for trial to let the jury determine whether the infringement was willful and to assign damages. With the two statutes and eight separate images at issue, the ceiling for damages was fairly high.
The case went to trial in last month, and on November 22, after eight days of trial, the jury came back with the maximum statutory penalty of $150,000 per image under the U.S. Copyright Act, but only $2,500 per image for the DMCA violations, as opposed to the $25,000 statutory maximum, for a total award of $1.22 million.
Photographer organizations around the world are heralding this ruling as a wake-up call for those who are inclined to pluck content at will from various sources around the Internet and distribute without proper attribution.