"[Agence France-Presse] got caught with a hand in the cookie jar and will have to pay." This statement, written in 2010 by an AFP photo desk editor, could become reality if a judge finds in favour of freelance photographer Daniel Morel in his two-year-long case against the French photo agency and its partner, Getty Images. Olivier Laurent reports
Last week, freelance photographer Daniel Morel, as well as Agence France-Presse and Getty Images have submitted memoranda of law for summary judgment in their long-standing legal case, providing unprecedented insight into both parties' strategies to emerge victorious.
In US law, the purpose of summary judgment is to avoid unnecessary trials when the facts of the case are not in dispute. Both parties must then file with a court a memorandum of law in support of summary judgment.
The memoranda, which BJP has obtained, present the case's facts as seen by both parties.
On 12 January 2010, a devastating earthquake hit Haiti killing an estimated 316,000 people. Daniel Morel, a freelance photographer under a distribution contract with Corbis, was in Port-au-Prince's central street, Grande Rue, when the quake struck. "Narrowly escaping injury, he hit the streets to photograph the death and destruction around him," his legal representative recount in a preliminary statement.
Returning to his hotel, he uploaded his photographs, as quickly as possible, on Twitter. It was 6.13pm when the first image hit the social networking website. At 7.28pm, the photographer had uploaded 17 images, which would be copied by another Twitter user under the name of Lisandro Suero of the Dominican Republic.
At 11.23pm, the director of photography for North America and South America at AFP, Vincent Amalvy, downloaded nine photographs from Suero's TwitPic account. The images belonged, in fact, to Morel, but, says Amalvy, at that time, "there was no reason for me to think that Mr. Suero was not the photographer of the photographs posted on his TwitPic page."
Amalvy, in a declaration in support of AFP's motion for summary judgment seen by BJP, says that he was only made aware that Morel might be the images' author on 13 January 2010 at 4.36am when he received an email from Benjamin Fathers from AFP's Paris office. In his email, Fathers says: "I am not sure that the pictures by Lisandro Suero are by him but rather that they belong to Daniel Morel." Amalvy adds that he immediately made the decision to change the caption on all the photographs and sent out a Caption Correction to AFP's clients.
But, Morel argues in his memorandum of law that Amalvy, in fact, tried to contact him at 9.42pm on 12 January enquiring about his images. His email read: "Hello - I am the AFP Photo Editor - I am searching to contact you - Do you have images of the earthquake - You can send them to me at this address - firstname.lastname@example.org - Thank you."
Morel says that "the record conclusively demonstrates that AFP had actual or constructive knowledge of Morel's Twitpic page and knew the images were his [...] Thus, AFP had knowledge that Morel was the author of the Iconic Images when it uploaded them without his permission and transmitted them to WAPIX, Getty Images and ImageForum through the feed."
But, say AFP and Getty Images in their joint memorandum of law, the news agency "believed Morel posted the photos to Twitter, as thousands of others have done on social networks, to alert the world as to the conditions surrounding them."
For Morel, this case "is in many respects a traditional case of internet piracy in which the counterclaim defendants are liable for direct and secondary liability for copyright infringement," reads his memorandum of law. "This Court should not be taken in by AFP's and Getty Images's efforts to wrap themselves in sham defenses to avoid liability by arguing that Morel's posting of the images on Twitpic meant they were available for distribution free to AFP or Getty Images' defense that copyright law doesn't apply to us based on the DMCA Safe Harbor."
Morel has asked the court for a summary judgment for vicarious and contributory infringement against AFP and Getty Images, as well as for willful infringement against all parties [AFP, Getty Images and The Washington Post], and for liability under the Digital Millennium Copyright Act for falsifying copyright management information with intent to induce infringement.
AFP, Getty Images and The Washington Post, meanwhile, are seeking to have "Morel's remaining claims summarily dismissed." AFP also moves for summary judgment as to Morel's copyright infringement claims pursuant to the [alleged] license Morel provided to use his photos when he posted them on Twitter, while Getty Images moves for dismissal of all copyright claims. Both companies also refuse liability.
AFP argues that it had the right to distribute Morel's images based on Twitter's and TwitPic's terms of service. "By registering for a Twitter account and posting his photos via TwitPic, Morel became the subject to Twitter Terms of Service that granted a license to third parties, including the Defendants and their subscribers, to rebroadcast his photos," reads AFP's memorandum of law. It adds that the "burden is on Morel to prove that the Defendants do not fall within the license to Twitter's other users [...] AFP has already met the burden of proving the existence of a license, and Morel now has the burden to show that the scope of the license does not include 'other users' such as the Defendants and their licensees, which he cannot do."
But, as BJP reported last year, Judge William H. Pauley of the United States District Court of the Southern District of New York disagrees with this conclusion. In a court order, issued on 23 December 2010, he wrote: "AFP and the Third-Party Defendants do not meet their burden to establish that they had a licence to use Morel's photographs," or that they were even "third-party beneficiaries" of the services' terms and conditions.
Morel, in his memorandum of law, says that AFP's defense would fail even its own policies. On the Getty Images' website, according to Morel's representatives, a document titled Copyright 101 states that one of the common misconceptions about copyright is that if "an image is on the internet, it's in the public domain and I don't need permission to use it."
"Ironically," writes Morel's representative, "AFP and Getty Images affirmative defenses resemble the anecdotal misperception of a lay internet user. Such sophisticated content providers as AFP and Getty Images, known for their aggressive protection of content, should be held to a higher standard of care, particularly in view of the reliance of major media companies on their competence to provide accurate imagery and information. AFP failed Copyright 101."
Morel says that "there is no genuine dispute AFP engaged in direct copyright infringement" by copying and distributing Morel's images. He adds that considering the fact that copyright is a strict liability statute, both AFP and Getty Images can't argue that their lack of knowledge of their respective infringements absolves them from direct liability.
However, AFP is adamant that Twitter's terms of service protect the organisation. "Posting images of a natural disaster in high resolution, with no restriction, on a social media outlet such as Twitter, where it is known and understood that materials are almost universally rebroadcast, simply cannot be allowed to be a mechanism for a 'gotcha' cause of action. To hold otherwise would hold that retweeting is an infringing activity and would effectively shut down Twitter and other similar social media sites."
Meanwhile, Getty Images argues that it played a passive role in the distribution of Morel's images satisfying every single requirement of Safe Harbor, and "immunising Getty Images from liability for monetary and most forms of injunctive relief for direct and indirect copyright infringement."
Getty Images' rational is based on the fact that it is an online service provider used by AFP to distribute their images. "The photos at issue were put on Getty Images' website 'at the direction of' AFP - and indeed, directly by AFP via transmission through its feed." As a result, "AFP bore sole and complete responsibility for transmitting images to Getty Images' system via the feed, which it did thousands of time a day without editing, modification or curation by Getty Images." It adds: "Getty Images did not participate in or supervise this process, and the only human intervention on Getty Images' part involved conforming image metadata entered by AFP to the Getty Images system's formatting conventions."
But, Morel counters that "Getty Images' activities in the marketing, sale, distribution, syndication and licensing of Morel's Iconic Images changed its status from being a 'passive provider' of a space in which infringing activities happen to occur to active participants in the process of copyright infringement." Getty Images, in total, sold 820 copies of Morel's images for both editorial and commercial use, "notwithstanding the limitation 'Editorial use, no sales' in the caption provided by AFP."
Morel argues that once an "act of infringement under the Copyright Act has been proven, a plaintiff may, in lieu of an award of actual damages and profits, request that statutory damages be awarded. If a plaintiff so elects, the district court will grant anywhere between $750 and $30,000 for each copyright infringed." If such damages were awarded, Morel could receive up to $20,000,000.
But, reads Morel's memorandum of law, "if the defendant's infringement was willful, the district court may also, in its discretion, enhance the statutory damages award to as much as $150,000 per infringed work," representing $120,300,000.
Morel says that "even viewed in the light most favorable to the non-moving party, the record permits no other conclusion than that the actions of AFP and Getty Images were willful [...] The uncontroverted conduct of AFP and Getty from the outset of AFP's theft of the images and in the days, weeks and even months following their initial wrongful use of Morel's images demonstrates conclusively that they acted willfully and in complete disregard of Morel's right to control and benefit from his own work."
Morel goes on to quote Eva Hambach, AFP's deputy photo editor for North America, who wrote in an email dated 16 March 2010: "AFP got caught with a hand in the cookie jar and will have to pay."
AFP and Getty Images deny that they acted willfully. "In order for an infringer to be found 'willful', 'the standard is simply whether the defendant had knowledge that its conduct represented infringement or perhaps recklessly disregarded that possibility," the two organisation write. "As discussed at length, Amalvy and AFP believed at the time that they downloaded and distributed the Photos at Issue that they were permitted to do so (even if they are later found to have been incorrect)." Getty Images argues that its conduct was "innocent". "AFP downloaded the Images from Twitter, and transmitted them onto Getty Images' systems, without Getty Images' participation, affirmative action or knowledge of the source of the Images."
Getty Images adds that it could not "possibly investigate whether the hundreds of thousands of images that AFP transmits to Getty Images' database every year infringe other parties' copyright, without altering its business model, incurring massive expense and slowing down the timeliness of the distribution of news photos to an unacceptable degree. Moreover, putting this massive burden on Getty Images and other news providers would impede or prevent the delivery of breaking news, detracting from the marketplace of ideas."
Under these circumstances, say AFP and Getty Images, "Morel's claim for statutory damages may not be enhanced on the basis of willfulness." In fact, they asked for the court, if it finds in Morel's favour, to limit damages to "the lower statutory range for innocent infringement," which is of up to $30,000 per infringement. They add that the damages should be limited to the number of works infringed upon and not to the number of infringement cases - thus limiting Morel's damages to $240,000 instead of $120,300,000.
The court has yet to communicate when it will issue summary judgment.
Daniel Morel is represented by Barbara Hoffman of the Hoffman Law Firm. Agence France-Presse is represented by Joshua J. Kaufman, Meaghan H. Kent and Elissa B. Reese of Venable LLP. Getty Images and The Washington Post are represented by James Rosenfeld, Deborah Adler and Samuel M. Bayard of Davis Wright Tremaine LLP.
For more on this case, read BJP's full coverage dating back to April 2010.
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