Freelance photographer Daniel Morel is now in a stronger position with his case against Agence France Presse after a court dismissed the agency's argument that it had a legitimate licence to distribute Morel's Haiti earthquake images.
The case, launched earlier this year by Agence France Presse, with Getty Images, the ABC and CBS television networks and CNN as co-defendants against the photographer, accused Morel of engaging in "an antagonistic assertion of rights," after he objected to the use by AFP of images he posted online on the Twitpic and Twitter services.
The images were of the 12 January earthquake, which hit Haiti and killed more than 230,000 people. When the disaster hit, Morel was in Port-au-Prince. According to a counter-claim he filed against Agence France Presse, Morel spent most of that day photographing. And with the help of a friend, he created a Twitter account with the username "PhotoMorel" where he posted, through the Twitpic service, 13 images he had taken that day.
Morel accuses AFP of distributing and selling his images without prior permission, and he 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 CBS, ABC and Turner Broadcasting System, all of which also used Morel’s images without authorisation.
Now, Morel finds himself in a stronger position to argue his case after a judge denied, in most part, AFP’s requests to dismiss all Morel's claims.
In the court order, issued on 23 December 2010 by Judge William H. Pauley of the United States District Court of the Southern District of New York, Morel finds that while he can go ahead with the claims based on the Copyright Act and the Millennium Copyright Act, he won’t be able to pursue his claims that AFP and its co-defendants violated the Lanham Act.
Copyright Act of 1976
At the centre of this case are Morel’s 13 images, which he uploaded on Twitpic and Twitter on 12 January under the handle PhotoMorel. Morel’s action led to criticism from personalities such as Visa Pour l’Image’s director Jean-François Leroy, who argued that by uploading his images on the internet, he was exposing himself to theft. However, Judge Pauley has found otherwise. In his court order, he writes that “by posting photos on the internet, Morel wanted to break the news of the earthquake, retain his copyrights, and receive credit and compensation for licensing his photos”.
In fact, several news organisations saw it like that as well. As Morel pointed out in his counter-claim, and as Judge Pauley writes in his 23 December 2010 court order, “numerous American and foreign news outlets emailed Morel and posted on Twitpic asking to purchase his photos for publication”. In fact, “four CBS News representatives contacted Morel seeking to purchase his photographs and offering to credit him as author” and “five CNN representatives contacted Morel complimenting him on his photographs and requesting permission to air them”.
In addition, and as BJP reported and exposed in a previous report, “within an hour of Morel’s posting, Vincent Amalvy, an AFP photo editor, placed a link on his Twitter page to Morel’s photographs”.
In that timeframe, one Twitter user, a Dominican Republic citizen who goes by the name of Lisandro Suero, copied the photographs and posted them on his own Twitpic page, claiming ownership. Judge Pauley points out that “Suero is not a photographer and was not in Haiti during the earthquake,” while Morel is a known freelance photographer who used to work with AFP and is now licensed by Corbis.
AFP’s photo editor Vincent Amalvy continued to message Morel asking if he had pictures of the earthquake. At that time, Morel was unreachable and, consequently, AFP chose to download the 13 images from Suero’s Twitpic page.
Judge Pauley writes: “AFP operated an online photo database called Image Forum, which it uses to market and distribute its photographs. AFP place Morel’s photographs on Image Forum and transmitted them to Getty, an image licensing company. Pursuant to a partnership agreement, Getty holds exclusive rights to market AFP’s images in North America and the United Kingdom.” But, “Morel’s photographs were labelled with the credit line ‘AFP/Getty/Lisandro Suero'.”
According to Morel, AFP and Getty, in their rush to obtain credit for the photographs, “willfully or recklessly failed to follow standard journalistic practices or use due diligence to verify Suero’s authorship and the photographs’ authenticity”. In fact, he claims, “AFP and Getty trusted the images’ authenticity because they knew Suero ‘stole’ them from Morel, a well-known resident Haitian photographer.”
Morel adds that AFP knew from 2:06 am on 13 January, and if not from the time he uploaded the images on Twitpic, that they belonged to him. “AFP should have issued a ‘kill’, an order removing the images from the Image Forum, deleting them from archives, and instructing AFP’s licensees to delete the images.”
Instead, at 5:30 am, AFP issued a wire instructing a change to the photographer credit from Suero to Morel. However, writes Judge Pauley, “Getty continued to sell licences to charities, relief organisations, and news outlets that variously credited AFP, Suero or Morel as the photographer.”
On 13 January, Morel sent his photos to Corbis, which posted them for licensing that afternoon. The following day, Corbis emailed Getty asserting exclusive rights to Morel’s photos, which, finally, prompted AFP to issue the ‘kill’ – but only for eight of the 13 images.
But, as Judge Pauley writes, “AFP and Getty failed to observe or enforce the credit change instruction or the ‘kill’, continued to license and sell Morel’s photographs, and ‘derived a direct financial benefit’ as a result.”
AFP asserts that it had an “express licence to use Morel’s images or, alternatively, they were third-party beneficiaries of a licence agreement between Morel and Twitter.” The terms of service on Twitter claim that “by submitting, posting, or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such content in any and all media or distribution methods.”
While AFP never argued that it was a partner of Twitter, it maintained that the terms of services allowed the distribution of Morel’s images. Judge Pauley disagrees. He writes: “AFP and the Third-Party Defendants do not meet their burden to establish that they had a licence to use Morel’s photographs,” or even “third-party beneficiaries” of the services’ terms and conditions.
As a result, AFP and Getty’s request to dismiss the “contributory infringement claims against them on the sole ground that there is no primary infringement by reason of licence” has been denied by Judge Pauley, who writes that “Morel’s allegations that AFP and Getty knew the images were his, disregarded his rights, and licences his images to third parties are sufficient to plead knowledge and inducement of infringement."
This finding allows Morel to move forward with his claims that AFP and Getty violated the Copyright Act of 1976.
However, Judge Pauley argues that Morel failed to allege facts supporting his claim that CBS and CNN had a direct financial interest in their affiliates’ exploitation of his images, in contrast to AFP and Getty, which benefited financially. Consequently, Morel will be unable to move forward with his claims of vicarious infringement against CBS and CNN.
Digital Millennium Copyright Act
Morel is also alleging that AFP and Getty violated the Digital Millennium Copyright Act in relation to Copyright Management Information (CMI). The Act defined 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 case, Morel alleges that an AFP photo editor viewed his photos before asking about identical photos on Suero’s Twitpic page, and that “when Morel failed to respond to the editor’s email, AFP downloaded the pictures from Suero.” Morel also alleges “AFP knew the photos were his because he is a well-known photographer and AFP had no reason to believe that Suero took the photos. However, AFP credited Suero without inquiry,” Judge Pauley summarises.
As to Getty, Morel alleges that even after AFP issued a wire to change the photographer credit from Suero to Morel, Getty continued to license photos crediting Suero. Moreover, writes Pauley, “Getty sought to obtain credit for the photographs even though it knew of Morel’s reputation and had not investigated Suero’s authorship.” According to the judge, “these allegations sufficiently plead knowledge and intent.”
The judge has also squashed AFP’s request to dismiss Morel’s claims that it “intentionally” removed or altered Copyright Management Information. Judge Pawley rejected the “movants’ argument that CMI must be removed from the photograph itself to state a claim for removal or alteration of CMI,” as the Act defines CMI as information “conveyed in connection with copies” of a work, which was the case in this particular situation as the names “Morel” and “by photomorel” appeared next to the images.
Here again, Morel will be allowed to continue with its case against AFP, Getty and other co-defendants.
But, Judge Pauley didn’t side with Morel on all his claims. Morel alleges that AFP and Getty violated the Lanham Act by misrepresenting the source of origin of the 13 images. This act, says Morel, represents false representation and false advertising. However, Judge Pawley disagrees, arguing that the Lanham Act only applies in trademark cases, and doesn’t come into play in copyright cases. He writes: “This Court agrees with that line of authority. Morel holds copyrights for his photographs, and his recourse for unauthorised copying, whether through a false claim of authorship or a false assertion of license, lies in copyright law, not in trademark.”
As a result, Morel will be unable to pursue AFP, Getty and other co-defendants for violation of the Lanham Act.
While Morel will not be able to sue Agence France Presse, Getty Images, CBS Broadcasting and Turner Broadcasting System for violation of the Lanham Act, as stated above, the photographer has found himself in a much stronger position is regards to his other claims – that of copyright infringement, vicarious copyright infringement, contributory infringement and Digital Millennium Copyright Act violations. “Those claims may proceed,” concludes Judge Pauley.
However, beyond this case, Judge Pauley’s findings could have a general impact on photographers as a whole – check back for an upcoming opinion piece on BJP for more details.
For more on the case, read our full coverage:
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)
This article was first published on 31 December 2010 at 7pm, and updated on 03 January at noon with full details of the Court's findings.
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