Free for a Fee

This is a long-running copyright infringement case that we’ve covered repeatedly. (My most recent post with a pre-trial recap: AFP v. Morel – Lawsuit Over Haiti Photos Taken From Twitter/Twitpic Goes to Trial.) AFP and (through AFP) Getty thought they had a license to republish Daniel Morel’s photographs of the Haiti earthquake that Morel had posted to Twitpic, and they in turn licensed the photographs downstream. Unfortunately, they did not have any permission at all, as the person who purportedly granted them permission (Lisandro Suero) turned out to have copied Morel’s photos and posted them to his account without permission. In response to Morel’s infringement arguments, AFP and Getty asserted, among other arguments, one that they could exploit the photos because the Twitter and Twitpic terms of service contained a broad license grant in their favor. Somewhat predictably, this argument did not fare well.

Prior to the trial, the court found defendants liable for infringement, putting them on the hook for something. The big question at trial is if AFP and Getty acted in good faith or willfully infringed. Going into trial, the evidence didn’t look particularly good for defendants. Editorial Photographers UK & Ireland had great day-by-day coverage of the trial. It’s well worth reading the whole thing, but a few snippets caught my eye:

Questioned on why he had ignored AFP’s guidelines on the use of material found on social networks, Amalvy [an AFP executive] said he was focused on the scale of the Haitian catastrophe. Pressed on his claims that he had only ever seen Morel’s stolen images at Suero’s TwitPic account, but had seen none of Suero’s linked tweets, Amalvy pled unfamiliarity with the technology.

….

Had it occurred to the editor of 20 years experience that the quality and nature of the Morel images might indicate they were by a professional photographer? Apparently not. Were the images withdrawn from sale when it was quickly learned that they were stolen? No: AFP simply changed the credit from Suero [the person they thought owned the photo] to Morel. Did AFP contact their clients to warn them they were publishing stolen images with a false byline? Of course not, they were too busy. When AFP tried to contact Morel to make a deal did they mention that they’d already published his work under a false byline? Take a wild guess.

Getty & AFP had a variety of excuses for what went wrong and why they did not immediately cease distribution of the images, but none of them seemed to sway the jury. Getty also pointed the finger at AFP and tried to position itself as a platform used by AFP. (One vaguely appealable issue may be the availability of DMCA safe harbor protection to Getty, but the costs and further wrangling can’t possibly be worth it.)

Ultimately, the jury did not think that Getty and AFP were good actors. They awarded the maximum statutory damage awards for infringement ($150,000 x 8 images, for a total of $1,200,000) and for DMCA violations ($25,000 x 16 violations–8 for removal or alteration of copyright management information and 8 for dissemination of false copyright management information–for a total of $400,000). The total comes in at $1,600,000. [Note: media reports have varied slightly on the actual amount of the award, but based on the infringements at issue and amounts available, these look like the right figures. The verdict form was unavailable at the time of publication of this post, but we’ll post the verdict form when we get a copy of it.]

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The content in this post was found at http://blog.ericgoldman.org/archives/2013/11/afp-gettys-republication-of-twittertwitpic-sourced-photos-turns-out-to-be-costly-afp-v-morel.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.