On 23 December, Daniel Morel found himself in a much stronger position in his legal fight against Agence France Presse when a judge refused to dismiss the photographer's claims. Already, we've seen the impact that decision has had. Late last week, CBS settled with the photographer, with terms that strongly favour Morel, BJP understands.

Now, let's come back to the judge's decision, as I summarised it in a previous report here.

Beyond the fact that District Judge William H. Pauley makes it clear that anything posted on Twitter and TwitPic can’t be freely re-used and distributed by Agence France Presse – and any other user for that matter, the most notable finding in this memorandum and court order relates to Copyright Management Information (or metadata), which is defined in section 1202 of the United States’ Digital Millenium Copyright Act.

As I wrote in the summary of Judge Pauley’s findings, the Act defines CMI as any information conveyed in connection with a work in digital form – such as title, name of the author of the work or any other identifying information.

In this particular case, the images posted on TwitPic didn’t have any embedded metadata – the information you usually find when opening an image in Photoshop and other similar applications. In previous legal cases, courts only found that section 1202 had been violated if the embedded metadata had been removed or altered. However, in this particular case, District Judge Pauley believes that the information doesn’t have to be embedded – it can be shown alongside the image, as it was the case with Morel’s images.

When Morel uploaded his 13 photographs, he did it under the “photomorel” and “Morel” handled, which were displayed alongside and below his images on his Twitter and TwitPic pages. The Court says that anyone, including Agence France Presse, understood that it meant Morel was the author of these images. Consequently, says Judge Pauley, by failing to include that information when it distributed and benefited financially from the images, Agence France Presse violated section 1202 of the Digital Millennium Copyright Act.

As Eric Goldman, an Associate Professor of Law at Santa Clara University School of Law, points out, it’s not the first time that a court has found that “failing to capture and republish metadata outside the file itself could violate 1202.” He adds: “Should more courts jump on this bandwagon, expect 1202 to become the copyright plaintiff's favorite new toy in 2011.”

What does that mean for photographers in the United States or for international photographers that have registered their images with the US Copyright Office? If these photographers find that an organization, with a legal presence in the US, have used their images without authorisation and credit, they will be able to argue violation of section 1202 and use Judge Pauley’s comments to support their claims – as well as any other judges who ruled similarly.

For example, the Daily Mail, which is currently being sued for $1,5m after it used, without authorisation, images captured by Mavrix Photo, could be found to have violated section 1202 if it didn’t credit the images to Mavrix Photo. In fact, the Daily Mail could get into much more trouble for the countless images it credits to “The Internet” – if these images, of course, have been shot by US-based photographers or have been registered with the US Copyright Office.

Daniel Morel’s case, if it goes to a full trial – Agence France Presse, as we revealed, is looking to settle it before it reaches that stage – could become jurisprudence. But, more broadly, it’s bound to raise awareness among the photographic community, and hopefully the wider public, that everything you find online isn’t free to use – an excuse that has been, constantly, used by the Daily Mail and countless media organisations’ CEOs and managers to justify the “stealing “ of images.

What about Getty Images?

Beyond this, Daniel Morel’s case has revealed deep flaws in Agence France Presse’s and Getty Images’ practices, as Judge Pauley wrote in his order. While we knew that AFP acted improperly in this particular case, now we also find that Getty Images shares responsibility, according to the judge.

Indeed, why did Getty Images continue to distribute and profit from photographs it knew didn’t belong to Lisandro Suero, in the first place, and later on, weren’t even authorised for distribution? So far, Getty Images has declined to comment on the case, arguing that the images came from Agence France Presse – via its distribution deal. Getty also tells BJP that it cannot comment as the case is still ongoing.

But that’s just not good enough. Judge Pauley writes: “Morel’s allegations that AFP and Getty knew the images were his, disregarded his rights, and licensed his images to third parties are sufficient to plead knowledge and inducement of infringement." In short, Getty Images knew it was doing something wrong and kept doing it anyway. Why?

Right now, BJP understands that Agence France Presse and Getty Images are actively seeking a settlement, but why would a photographer who's winning his case settle?

The hope is that, when all is said and done, this case will push Agence France Presse and Getty Images to review what went wrong, and, maybe, just maybe, become more transparent in their practices. They stand to benefit, especially considering the hit their brands have taken with this case and Judge Pauley's recent order.

Read our full coverage of the case:

Daniel Morel, CBS settle case (09 January 2011)

"We will prevail," says AFP of Morel case (04 January 2011)

Court hands Morel his first victory in AFP case (31 December 2010)

Morel to pursue legal case (08 November 2010)

AFP v. Morel: Judges reserves decision in AFP dismissal request (29 September 2010)

AFP v. Morel: the debate rages on (27 September 2010)

Court date set in AFP v. Morel case (22 September 2010)

JFL hits back at critics in AFP/Morel copyright case (14 June 2010)

No Visa support for Morel in Haiti case (09 June 2010)

Agence France Presse's slap to photographers (28 April 2010)