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Morel free to fight on in copyright case

© Daniel Morel, used with authorisation from the photographer.

A court has sided with Daniel Morel in his fight against Agence France-Presse and Getty Images

On 12 January 2010, after a powerful earthquake wrecked havoc on Haiti, freelance photographer Daniel Morel spent most of the day photographing. That night, a friend helped him create a Twitter account and he posted 13 of the images he had taken.

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Within hours, the “iconic images”, as they are now referred to, had appeared on Agence France Presse’s feed, without Morel’s permission, and went on to be used on the front pages of hundreds of newspapers around the world as a result. But when Morel wrote to AFP’s clients asking for the images to be removed, the wire agency hit the courts, accusing Morel of engaging in “an antagonistic assertion of rights”.

Morel countersued, accusing AFP of distributing and selling his images without prior permission, as well as 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, CBS, ABC and CNN. AFP requested that Morel’s claims be dismissed but, in a court order issued on 23 December 2010, Judge William H Pauley of the United States District Court of the Southern District of New York refused, in most part, to do so.

He found that the photographer could go ahead with the claims based on the Copyright Act and the Millennium Copyright Act, significantly strengthening his case. However, Morel won’t be able to pursue his claim that AFP and its co-defendants violated the Lanham Act, which regulates trademarks in the US.

Victory for Twitter users
At the centre of this case are Morel’s 13 “iconic 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. 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 also saw it this way. As Morel pointed out in his counter-claim, and as Judge Pauley writes in his recent court order, “numerous American and foreign news outlets emailed Morel and posted on Twitpic asking to purchase his photos for publication”.

And, as BJP has previously reported in April 2010, “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, Lisandro Suero in the Dominican Republic, copied the photographs and posted them on his own Twitpic page, claiming ownership of them. As Judge Pauley points out, “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 send messages to Morel asking if he had pictures of the earthquake but Morel was unreachable, so AFP downloaded the 13 images from Suero’s Twitpic page, distributing them with the credit line “AFP/Getty/Lisandro Suero”.

Morel argues that, in their rush to obtain credit for the photographs, AFP and Getty “wilfully 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”.

AFP issued a wire instructing that the photographer credit should be changed from Suero to Morel a few hours later, but Judge Pauley writes that “Getty continued to sell licences to charities, relief organisations, and news outlets that variously credited AFP, Suero or Morel as the photographer” [See Getty Images remains silent].

On 13 January, Morel sent his photos to Corbis, which posted them for licensing that afternoon. Corbis emailed Getty the following day, asserting exclusive rights to Morel’s photos, and prompting the AFP to issue the “kill” instruction – 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”, but Judge Pauley disagrees with this interpretation in his court order. He writes that “AFP and the Third-Party Defendants do not meet their burden to establish that they had a licence to use Morel’s photographs”, or were even “third‑party beneficiaries” of the services’ terms and conditions.

As a result, Judge Pauley denied 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”. He writes that: “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.”

Metadata protected
Judge Pauley has also ruled that AFP and Getty could be sued for violating the Digital Millennium Copyright Act in relation to Copyright Management Information (CMI), as Morel alleges. Section 1202 of 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 case, Morel claims 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 that 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”, as Judge Pauley summarises.
As to Getty, Morel alleges that even after AFP issued a wire to change the photographer credit from Suero to Morel, the stock agency continued to license photos crediting Suero. Moreover, writes Judge 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 quashed AFP’s request to dismiss Morel’s claim that it “intentionally” removed or altered Copyright Management Information (CMI). 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. This was the case in this particular situation, as the names “Morel” and “by photomorel” appeared next to the images. In effect, Judge Pauley argues that copyright information doesn’t have to be embedded in the image to be valid.

With this ruling, Judge Pauley hands all photographers an extra legal weapon against copyright infringers and, 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”.

This could impact all US photographers and international photographers that have registered their images with the US Copyright Office, because if they find that an organisation with a legal presence in the US has used their images without authorisation and credit, they will be able to argue violation of section 1202 of the Act, and use Judge Pauley’s comments to support their claims. For example The Daily Mail, which is currently being sued for $1.5m after using images captured by Mavrix Photo without authorisation, could be found to have violated section 1202, as it failed to credit the images to Mavrix Photo in some instances.

If Morel’s case goes to a full trial, it could become jurisprudence. But if not – and AFP is hoping to settle out of court before it reaches that stage – it will still raise awareness of the fact that images found online aren’t free to use, even if they’re on Twitter.