Federal Judge Upholds $1.2 Million Verdict in Morel v. AFP Copyright Case

by JamesNYCAugust 14. 2014 14:10

A federal judge has upheld a $1.2 million jury award in favor of photographer Daniel Morel, after determining that there was sufficient evidence presented at the trial last year to support the verdict.

Morel won $1.2 million in damages after a federal jury determined that Getty and AFP willfully violated his copyrights by uploading eight of his exclusive news images of the 2010 Haiti earthquake, and distributing them without his permission. The award also included an additional $20,000 damages for violations of the Digital Millennium Copyright Act.

Getty and AFP had appealed the $1.2 million award on the grounds that there was not enough evidence presented at the trial to establish willful copyright infringement. They had asked the court to vacate the jury’s finding of willful infringement, reduce the award to Morel, or grant a new trial.

A federal judge rejected the appeal.

“There was evidence from which the jury could have concluded that the defendant’s infringement (and particularly AFP’s) was not just willful but reflected a gross disregard for the rights of copyright holders,” US District Court Judge Alison Nathan wrote in a decision handed down yesterday. She added, “In light of all the consideration that the jury was entitled to consider, [reduction] of the $1.2 million statutory damages award is not required.

“The evidence was plainly sufficient for the jury to conclude that AFP’s infringement was willful under either an actual knowledge or reckless disregard theory,” Nathan said. She said the evidence for willfulness on Getty’s part was “somewhat thin” in comparison to the evidence against AFP. But she went on to say that the evidence of Getty’s willfulness “was sufficient to support the jury’s verdict.”

Morel had uploaded his images to Twitter, offering to license them to news outlets. The images were stolen and re-distributed by another Twitter account holder. Judge Nathan cited evidence presented at trial that Vincent Amalvy, AFP’s Director of Photography for the Americas, knew or should have known that the images were actually Morel’s, and that AFP didn’t have permission to distribute them.

The evidence against Getty for willful infringement was that it left Morel’s images on its web site under a false credit for more than two weeks after AFP sent a “kill notice” telling Getty to remove the images.

The award was the maximum amount of statutory damages possible under the law.

AFP and Getty had asked the court to reduce the $1.2 million award on the grounds that it was based on a “speculative” figure of actual damages amounting to $275,000 in lost sales. Judge Nathan said that on the basis of actual downloads (1,000 or more) of the image and sale prices, the actual damage estimate was reasonable. But she went on to say that juries aren’t required in any case to base statutory awards on actual damage estimates.

She also rejected arguments that the $1.2 million statutory award was “instinsically excessive.” Noting that courts defer to the prerogative of juries to set damage awards and rarely set them aside unless they “shock the judicial conscience and constitute of denial of justice,” Nathan said AFP’s actions in particular could be seen as “gross disregard for the rights of copyright holders” and let the jury award stand.

At the same time, Nathan upheld a $10,000 jury award against AFP for Digital Millennium Copyright Act (DMCA) violations, while vacating a $10,000 award for DMCA violations against Getty.

The DMCA makes it unlawful to intentionally remove or alter copyright management information, or to knowingly provide or distribute false copyright management information with intent to conceal infringement.

Evidence presented at trial showed that Vincent Amalvy, the AFP Director of Photography, knew that Morel’s images were falsely credited to another Twitter user, but distributed the pictures with the false credit anyway, Judge Nathan wrote in her decision.

Getty violated the DMCA by continuing to distribute the images under a false credit, after receiving notice from AFP to remove the images, the judge said. But Getty was not liable under a DMCA provision for distributing the images with knowledge before the fact that the image credits had been illegally altered.

----UPDATE---

Willkie Farr & Gallagher LLP press release below:

Court Upholds Landmark Jury Verdict for Willkie Client, Photojournalist Daniel Morel

New York, NY (August 14, 2014) — U.S. District Judge Alison Nathan of the U.S. District Court for the Southern District of New York yesterday issued a Decision and Order upholding the jury’s verdict that Agence France-Presse and Getty Images (US) Inc. must pay $1.22 million for willfully infringing photojournalist Daniel Morel’s copyrights in his award-winning images of the 2010 earthquake in Haiti.

In the Decision, the Court rejected defendants’ argument that there was insufficient evidence to support the jury’s finding that the defendants acted willfully when they wrongfully misappropriated and transmitted Mr. Morel’s photographs to over 1,000 of their subscribers and licensees. The Court also left intact the jury’s award of the maximum statutory damages available under the Copyright Act. The Court held: “There was evidence from which the jury could have concluded that Defendants’ infringement (and particularly AFP’s) was not just willful but reflected a gross disregard for the rights of copyright holders.” After learning of the Decision, Mr. Morel said, “I am grateful that Judge Nathan recognizes the value of a photojournalist’s work and that she is holding AFP and Getty Images fully responsible for what they did to me. I hope no other photojournalist will have to go through a similar ordeal.”

The Willkie team is led by partner Joseph Baio in the firm’s New York Office. ***************************************************** Willkie Farr & Gallagher LLP is an international law firm of over 600 attorneys with offices in New York, Washington, Paris, London, Milan, Rome, Frankfurt and Brussels. The firm is headquartered in New York City at 787 Seventh Avenue. Tel: 212.728.8000.

 

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Getty Hands Google Users Free Commercial Images, Photographers Get $12

by JamesNYCJanuary 16. 2013 01:02

FROM - APHOTOEDITOR.COM

On December 6th the Google Drive Blog announced that “5,000 new photos of nature, weather, animals, sports, food, education, technology, music and 8 other categories are now available for your use in Docs, Sheets, and Slides” with no mention to how they were acquired or what type of license they come with. If you have a google drive account (comes with gmail and google apps for business) you can create a document and when you go to insert an image you can search google, life or stock. There’s a notice that the “results shown are labeled for commercial reuse with modification” but other than that you can insert the image results in your document and away you go.

It all seems quite mysterious, but luckily some istockers uncovered what’s really going on. In a forum post on January 10th an istock contributor is alarmed to find one of their images in the search results and once they place “it into my document at 1,066 x 1,600. No attribution. No meta-data. No license. No link.” This post is followed by 537 comments then the thread is locked.

 

Read the full original post here

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