The case, launched in early 2011 by Agence France-Presse against freelance photographer Daniel Morel, is moving forward, as district judge Alison J Nathan has found in summary judgment that the news agency, as well as The Washington Post, did not have the right to distribute Morel’s images of the devastating 2010 Haiti earthquake.
[bjp_ad_slot]When the disaster hit, Morel was in Port-au-Prince. According to a counter-claim the photographer filed against AFP, Morel spent most of that day photographing. With the help of a friend, he created a Twitter account in the username PhotoMorel, where he posted, through the Twitpic service, 13 images he had taken.
Morel accuses AFP of distributing and selling his images without prior permission, and has countersued, alleging that AFP had violated the Copyright Act of 1976, the Digital Millennium Copyright Act and the Lanham Act. Morel also brought those claims against Getty Images, which has a worldwide distribution deal with AFP, and a range of other media organisations, including The Washington Post, all of which also used Morel’s images without authorisation.
In this week’s landmark decision, the judge presiding over the case has found that AFP and The Washington Post had infringed on the photographer’s copyright. “The Twitter [terms of service] provide that users retain their rights to the content they post – with the exception of the licence granted to Twitter and its partners – rebutting AFP’s claim that Twitter intended to confer a licence on it to sell Morel’s photographs,” the judge said, according to Law360.
As a result of this decision, AFP and The Washington Post are liable for copyright infringement. However, Morel won’t be able to claim damages for each use of the images, the judge found. Instead, Morel will be able to claim a single statutory damage award per image infringed.
The case, however, continues as the judge has refused to rule on a variety of other claims, such as Getty Images’ role in the infringement. She also declined summary judgment on Morel’s claim that the infringement was wilful, ruling, for example, that “whether AFP’s conduct was wilful turns in substantial part on a jury determination of the credibility of [AFP’s director of photography for North and South America Vincent] Amalvy’s assertion that, at the time of the infringement, he believed AFP had the right to distribute the photographs”. These issues are expected to be resolved at trial.
A trial date has yet to be determined.
UPDATE: Summary of District Judge Alison J Nathan’s rulings:
“Summary judgment is proper only if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law,” says the judge. “In reviewing the evidence on a motion for summary judgment, courts are to construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor.”
AFP’s and The Washington Post’s direct liability
The facts and arguments: “Morel moves for summary judgment on his claim of direct copyright infringement,” says the judge. AFP claimed that by posting the images on Twitter, Morel agreed to Twitter’s terms of service and granted a license to AFP to use the images, a fact Morel denied.
The judge’s ruling: “The Court concludes that AFP has not demonstrated it is entitled to summary judgment and, in fact, based on the evidence before the Court, AFP has failed to demonstrate a genuine issue of material fact precluding the Court from granting summary judgment in Morel’s favor on AFP’s license defense […] Considering all of the evidence on this issue presented to the Court, and drawing all reasonable inferences in AFP’s favor, the Twitter TOS do not ‘necessarily require’ the benefit that AFP now claims. AFP and [The Washington] Post raise no other defenses to liability for direct copyright infringement and, in fact, concede that if their license defense fails – as the Court has determined that it does – they are liable for direct copyright infringement.”
The end result: AFP and The Washington Post are liable for copyright infringement.
Getty Images’ Direct Liability
The facts and arguments: “Getty claims that it cannot be liable because it is entitled to the benefit of a safe-harbor under the DMCA, one that covers infringement claims that arise ‘by reason of the storage at the direction of a user material that resides on a system or network controlled or operated by or for a service provider’.” In effect, since Getty Images has an automated system to stock and sell AFP’s images, it cannot be held liable for copyright infringement, the company says.
The judge’s ruling: “In order to qualify for the Online Copyright Infringement Liability Limitation Act safe harbors, a party must meet a set of threshold criteria. Most importantly for purposes of the present motions, the party seeking the benefit of the safe harbor must be a ‘service provider’, defined in pertinent part as ‘a provider of online services or network access, or the operator of facilities therefor’.” In this case, however, the Court has encountered an issue of fact regarding whether Getty qualifies as a service provider. While Getty’s argument is that it “merely provides a file hosting service for AFP’s images”, the record before the Court “contains evidence from which a jury could infer that Getty does not, in fact, simply host AFP’s images”, especially since Morel has presented evidence that Getty’s employees were actively involved in the licensing of the photos.
The end result: A jury will have to decide whether Getty Images is liable for copyright infringement.
Wilful Infringement
The facts and arguments: “When a copyright owner establishes that a defendant’s infringement was ‘wilful, the court, in its discretion, may increase the amount of statutory damages to a sum not more than $150,000.” As a general rule, the judge continues, a determination as to willfulness requires assessment of a party’s state of mind, a factual issue that is not usually susceptible to summary judgment. “To prove that infringement was wilful under the Copyright Act, the plaintiff must show that the defendant knew its conduct was infringing, or that the defendant’s actions were the result of reckless disregard or wilful blindness to the prospect that its conduct was infringing.”
The judge’s ruling: “There is plainly a disputed issue of material fact as to wilful infringement by AFP […] Whether AFP’s conduct was wilful therefore turns in substantial part on a jury determination of the credibility of Amalvy’s assertion that, at the time of the infringement, he believed AFP had the right to distribute the photographs.” Similarly, Getty Images contends it acted innocently and removed the images from its servers as soon as it was notified of the infringement. Morel claims otherwise, and a jury, says the judge, will have to determine who is right. The same goes for The Washington Post.
The end result: A jury will have to decide whether AFP, Getty Images and The Washington Post wilfully infringed on Morel’s rights.
Damages under the Copyright Act
The facts and arguments: “Morel claims the law provides that he may recover massive awards of statutory damages from [AFP, Getty Images and The Washington Post],” all of which dispute his interpretation of the law. Morel argues that he should be able to recover damages for every single case of infringement; ie, corresponding to the number of times the images were distributed and sold by AFP and Getty Images, which is estimated to be around 820 times.
The judge’s ruling: The Court finds that any awards of statutory damages against AFP or Getty may not be multiplied based on the number of infringers with whom AFP or Getty is jointly and severally liable. “Rather, AFP and Getty are, at most, each liable for a single statutory damages award per work infringed.”
The end result: Morel won’t be able to claim damages of up to $120,300,000 as documented previously. Instead, he will be entitled to damages ranging from $750 to $150,000 per image, depending on whether a court finds the infringement was wilful or not. The total, thus, will range from $6000 to $1.2m.
Damages under the DMCA
The fact and arguments: Morel claims that AFP and Getty Images are guilty of removing metadata from his eight images – a violation of the DMCA. “The DMCA provides for statutory damages in the amount of ‘not less than $2500 or more than $25,000’ for ‘each violation’,” says the judge. Morel contends that this provision allows him to recover a separate award of statutory damages for each distribution of the photos, which would amount to $44m in damages. The counterclaim defendants object to this interpretation of the law.
The judge’s ruling: “Damages should be assessed per violation; ie, based on AFP and Getty’s actions in uploading or distributing the photos, regardless of the number of recipients of these images.”
The end result: Morel will only be able to claim damages of up to $200,000 under the DMCA.
Total damages: If Morel is successful in his claims, he could receive damages of up to £1.4m.