AFP & Getty’s Republication of Twitter/Twitpic-Sourced Photos Turns Out to Be Costly – AFP v. Morel
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 Were the images withdrawn from sale when it was quickly learned that they were stolen?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.]
Getty’s and AFP’s decision to not settle with Morel is inexplicable. AFP is reported to have urged the jury to award the minimum amount for infringement, which is $275,000. This means that going in to the trial, they knew they had to pay at least this much. The delta between this and Morel’s maximum possible recovery could not have possibly been enough to thwart a settlement. Morel’s possible recovery was a known number–i.e., the parties all knew that a possible statutory damage award would exceed actual damages. Getty and AFP probably spent high six figures on their own fees at trial alone. Why not just put this entire amount toward settlement? It’s possible that when you added Morel’s request for his own attorneys’ fees to the mix this made settlement untenable. But this again comes back to AFP’s and Getty’s own intransigence. They should have settled this one a long time ago. The idea that jurors would be at all sympathetic to larger media entities who admittedly misappropriated a photographer’s photos, refused to immediately correct the error, then took a hard line when he complained about it, is fanciful. Interestingly, one component of Getty’s defense was along the lines of the following:
“The mistake was having photos on the website in the first place and that is copyright infringement.” [Getty’s lawyer] urged the jury that Getty is comprised of “well-intentioned people acting in good faith to right a wrong.”
If that sounds familiar, it is because that’s a typical argument raised by targets of Getty’s own copyright enforcement campaign. Getty is not very sympathetic to this argument when they are on the receiving end of it, and it’s no big surprise given the circumstances in this case that the jury did not buy it either.
This is probably not the last of this case. Getty, AFP, and the various other media entities and their insurance companies have some wrangling between them to see who ultimately foots the bill. It’s possible Getty and AFP could appeal, but I can’t imagine they would want to sink additional resources into this dispute.
Some possible takeaways from this:
- be careful if you source material from social media (avoid any direct commercial use of this material)
- don’t try to rely on some broad license contained in a platform’s terms of service
- don’t be a heavy handed big media entity, and if you do, know in advance that the “we made a mistake in good faith” argument is unlikely to resonate
- photos are different, as Eric notes below (posting a meme to reddit is one thing, but licensing a photo for money is another)
None of these are particularly shocking or surprising.
Eric’s Comments: I’m surprised AFP and Getty risked putting the damages issue to the jury without the “benefit” of trying any liability issues. In my admittedly limited experience, when juries in intellectual property cases are asked to opine only about damages because the defendants admitted liability (or lost as a matter of law), the jury typically doesn’t have enough material to form doubts about the defendant’s bad intentions, so defendants get hammered. Thus, I think AFP and Getty sealed their fate by going into a jury trial only about damages. News reports indicated the defendants were shocked by the jury’s response. I’m shocked by that shocked response. If they were shocked by the result, they didn’t have a clear-eyed assessment of the case going into the trial. It’s good for litigators to believe in their cases, but it’s crucial to remain realistic.
I’ve repeatedly lamented that photos are a huge liability trap on the Internet. Despite the fact many people freely copy Internet photos, there are very few circumstances where republishing someone else’s photo without permission isn’t infringement, and the transaction costs of defending any such lawsuit almost always exceeds the upfront license fees. So I slightly disagree with Venkat’s advice to be careful copying photos from social media. I think the better maxim is to be careful copying and republishing any photo on the Internet, wherever sourced. This is one of the many reasons why we almost exclusively use images from ShutterStock on the blog, or outlink to a photo, rather than the more common blogger practice of grabbing photos from Google Images. Life’s too short for such risky behavior.
More generally, it’s become clear that photos are among the most valuable digital asset classes. Just look at every major website, which now puts a big photo front and center on its homepage. The above-average value of photos, compared to other digital asset classes, helps explain why Yahoo doubled down on Flickr, Facebook bought Instagram for $1B, and Snapchat believes it’s worth way more than $3B. A picture tells a thousand words, and that seems to mean that the commercial value of photos is a thousand times more than the equivalent text. For more on our exceptionalist legal treatment of photos, see Rebecca Tushnet, Worth a Thousand Words: The Images of Copyright, 125 Harv. L. Rev. 683 (2012).
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