Closing Arguments: Verdict Pending in Daniel Morel vs. Agence France-Presse and Getty Images Trial
November 22, 2013
It's been a long time coming, but a jury is set to announce a verdict today after a seven-day trial to determine damages in the case of Daniel Morel vs. Agence France-Presse (AFP) and Getty Images.
The case began nearly four years ago, when Morel alerted AFP and Getty Images that they were distributing his exclusive images of the January 12, 2010 earthquake in Haiti without his permission. In addition, the agencies had credited the images to Lisandro Suero, an individual who stole them from Morel's TwitPic account, and who at the time was in the Dominican Republic. The images were published and broadcast by many news outlets. Morel did not receive payment for the almost 1,000 downloads of his images licensed by Getty and AFP, according to his attorney, Joseph Baio.
Photo © Daniel Morel
Morel ended up suing for copyright infringement. Last January, Federal District Court Judge Alison Nathan rejected arguments that Morel forfeited his copyrights by posting his images to his Twitter account. She also ruled that AFP and The Washington Post, which published images distributed by Getty, were liable for infringement.
The trial to determine damages began November 13 in Judge Nathan's courtroom at the Thurgood Marshall U.S. Court House in Manhattan.
In closing arguments yesterday, Baio argued the jury had six items to consider in deciding upon damages, among them: whether the defendants acted willfully; what it would take to deter the corporations from infringing upon the work of other photojournalists; and what the conduct and attitude was of the parties in question.
He told the jury the infringement against Morel was willful if Getty and AFP "knew they were infringing or acted with reckless disregard or willful blindness." He asked the jury to decide whether the agencies had doubts about their right to distribute photos, but went ahead and did anyway. He argued that AFP photo editor Vincent Amalvy, who originally authorized the distribution of Morel's images, should have followed the agency's guidelines for image distribution by verifying the origin, source, authorship, and prior publication of the images.
Photo © Daniel Morel
Baio also argued that Getty Images New York picture desk manager, Andreas Gebhard, was aware of Morel's images on January 12, 2010 because he sent an email that day saying the earthquake images on Morel's Twitter account looked "very decent." He also said that Getty senior director of photography news and sports, Pancho Bernasconi, saw an email from AFP indicating Suero didn't shoot the images in question, but Bernasconi didn't take action to kill the images. In addition, Baio said that Gebhard knew that the images were reissued from AFP with a new credit, but Gebhard did not take action to find out who the images were first credited to. Therefore the images credited to Suero were never killed, and Getty customers continued to download and use those images.
He said rather than issue an apology to Morel, the agencies wrote to him asking to license his images. In addition, Amalvy called Morel a "crook" in a March 2010 email–evidence that Baio says points to the character of the defense. Baio urged the jury to consider what it would take to make a statement to these leading news agencies that they cannot further infringe upon the rights of photographers.
Photo © Daniel Morel
Though the defense admits that the agencies infringed Morel's copyrights by distributing his images without permission, Joshua Kaufman, counsel for AFP, painted the agency as a charitable organization (AFP is a not-for-profit wire service) that acted on the best information they had at the time about the origin of the images. AFP wasn't acting to harm Morel, Kaufman said in his closing argument. He urged the jury to award Morel based on the notion that the corporation "made mistakes" and to grant the minimum damage award to the plaintiff.
Marcia Paul, counsel for Getty, argued in closing that Morel was still able to get his story out to the world (even though the wrong name was attributed to his images). She said that Getty and AFP collected between $28,000 and $29,000 from the sales of Morel's images. Paul said that Getty was unaware that Morel's images had been stolen by Suero. She said Getty relied on AFP (which originally provided the images to Getty under a joint distribution agreement) to get the captions correct. She said the company killed the Daniel Morel photos after a January 13, 2010 email, and sold Suero images until February 2, 2010. She said, "The mistake was having photos on the website in the first place and that is copyright infringement." She urged the jury that Getty is comprised of "well-intentioned people acting in good faith to right a wrong."
During a break in court, Morel spoke to Rangefinder briefly, saying it was a very proud day for him, but that it wasn't about the money anymore. He was excited to stand up to the corporate media giants.
If the defendants are found guilty of willful infringement Morel may be awarded up to $1.2 million in statutory damages; they jury can also award an additional $400,000 if they find the parties liable for violations of the Digital Millennium Copyright Act, as well as legal fees.
UPDATE: VERDICT REACHED IN CASE