There was much satisfaction in the pro photography ‘blogosphere’ in November last year when veteran freelance photojournalist Daniel Morel won a precedent-setting case against AFP and Getty Images for unauthorised distribution of his images of victims of the 2010 Haitian earthquake.
On the spot in the disaster zone and with no support, Morel decided his best option in getting his graphic on-the-scene images out fast was via Twitter, as we reported back in November. Here they were outright stolen by someone else, then picked up by an AFP editor and shared among quite a few Getty client publications. Finders keepers?
Daniel Morel is a veteran Haitian photojournalist who won first prize in the World Press Photo awards Stories category and a second in Spot News for some of the pictures Getty and AFP used without permission. To add insult to injury, Getty was charging its clients less than $10 each for these career-defining images!
Morel was awarded US$1.2 million last November, the maximum penalty available to the judge. The judge also imposedUS $400,000 in fines for 16 breaches of the Digital Millennium Copyright Act. The long-running case is among the first to address whether images that individuals publish on social media sites can be used by a third party for commercial purposes.
‘I hope the internet is going to be a little safer now for all artists, all photographers,’ Daniel Morel told US pro photography website 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.’
‘We believe that this is the first time that these defendants or any other major digital licensor of photography have been found liable for wilful violations of the Copyright Act,’ Daniel Morel’s lawyer said in an email quoted by news agency Reuters.
– And that’s probably why AFP and Getty seem determined to continue in the role of play Goliath to Morel’s David. (They initially counter-sued him back in 2010 in an attempt to force him to declare they had done nothing wrong.)
The agencies’ lawyers are now labelling the amount of damages a ‘miscarriage of justice’, arguing it is ‘intrinsically excessive’.
They are also maintaining that AFP/Getty Images’ were not in ‘reckless disregard’ for Morel’s rights, but rather they ‘might have been careless’. (Like I might be careless if I’m walking down the street, see a Maserati with the door open and the keys in the ignition, drive it home and claim it’s mine!)
The 35-page Getty/AFP document states the jury ‘simply ignored the relevant factors in favour of providing a sympathetic plaintiff with a large recovery’, likening it to Morel winning the lottery.
Getty Images and Agence France Presse are seeking to reduce the statutory damages to $200,000. One imagines they will spend more than the original penalty on legal fees in this rear-guard fight.
It is not yet clear whether the case will go to a re-trial, but Morel is not backing down. His lawyers have lodged their own 40-page document outlining their response to the Getty/AFP appeal.