AFP v. Morel – Lawsuit Over Haiti Photos Taken From Twitter/Twitpic Goes to Trial

We’ve previously covered AFP v. Morel, the case where photographer Daniel Morel is suing AFP, Getty and downstream licenses for allegedly infringing on his copyrighted material. In a nutshell, he took some iconic photos following the Haiti earthquake. twitpic.jpgAFP sourced these photos through a social media account they thought was Morel but that was actually someone else’s. Morel sent numerous takedowns and threats, and AFP preemptively filed a declaratory relief lawsuit.

Three years in, the case is set for trial today (November 13) and I thought it would be helpful to recap the developments in the case. Prior blog posts covered AFP’s unsuccessful attempt to get the case dismissed at the motion to dismiss (“Court Rejects Agence France-Presse’s Attempt to Claim License to Haiti Earthquake Photos Through Twitter/Twitpic Terms of Service — AFP v. Morel”) and then at the summary judgment stage (“Court Definitively Rejects AFP’s Argument That Posting a Photo to Twitter Grants AFP a License to Freely Use It — AFP v. Morel”). The court roundly rejected AFP’s argument that it could take the benefit of broad license terms contained in Twitter or Twitpic’s terms of service. Once this possible (and many observes thought, somewhat far-fetched defense) was taken away, it was clear that AFP would be on the hook for something.

Morel’s victory on summary judgment as to liability was key, but since then there have been a few developments that were less than favorable for him:

  • scope of statutory damages: The court’s summary judgment order left somewhat ambiguous whether Morel could seek statutory damages against AFP and Getty separately. Copyright damages are awarded on a per work/per defendant basis, so the number of possible separately liable parties has a big influence on the damages spectrum. In an order granting reconsideration, the court says that Morel is only entitled to seek one statutory award (total) per infringed work. Morel argued that even if he was restricted to seeking one statutory award against defendants who could be held jointly and severally liable, the fact that Getty allegedly disregarded AFP’s “kill notice” meant that it engaged in an independent act of infringement and he should be able to seek damages separately from AFP for the pre-kill-notice conduct and from Getty for the post-kill-notice infringements. The court disagrees, saying that where there is a possibility of joint and several liability, a plaintiff can’t increase the number of possible awards by splitting up who she goes after. Separately, the court also said that no reasonable juror could conclude that Getty’s post-kill notice licensing constituted a separate and independent act of infringement. Instead of 16 possible statutory damage awards, he gets 8.
  • change in his representation:  He was initially represented by Barbara Hoffman and he now has new counsel. The papers don’t detail what transpired between the two.
  • limitation in ability to seek DMCA damages:  Throughout the course of litigation, Morel apparently provided generic responses to AFP’s and Getty’s discovery requests regarding DMCA damages. It appeared that he intended to seek two awards per photo, which landed him in the range of 16 statutory awards for DMCA violations (one for removal of copyright management information and one for false copyright management information). Along the way, this number increased drastically, and Morel purported to try to claim separate awards for each particular instance of downstream licensing and for a much greater quantity of photographs. However, in an order granting defendants’  motion to exclude this evidence, the court says that Morel’s belated disclosure of evidence regarding these violations precludes his right to seek damages. He’s stuck with 16 damage awards for possible DMCA violations.
  • settlements: He settled with a slew of parties along the way.  Most recently, he settled with the Washington Post. It appears that the only parties remaining in the litigation on the other side are Getty and AFP.

What remains at stake:

  • 8 awards for copyright infringement (ranging from $750 to $30,000 per; in the event he proves willfulness, this amount goes up to between $750 and $150,000) [he can elect to recover “actual damages,” but to date the focus has been on statutory damages]
  • 16 awards for DMCA violations, where the damages range from 2,500 to 25,000
  • attorneys’ fees

Given the small number of cases that go to trial, it is surprising to see this one not have resolved already. Perhaps Mr. Morel’s settlement demands are on the high side; it’s possible AFP feels invested, having already spent what must surely be in the mid-six figures, if not more.

Regardless of how things turn out, AFP and Getty will have to pay some amount of damages. AFP and Getty will probably have some wrangling regarding allocation of liability, both between themselves, and among the various downstream licensees (one or both may try to invoke coverage from their insurance policies). All of this depends on the operative contractual language, but it’s tough to believe that everything has been resolved between the various defendants. (This will take place at all in a separate case.)

Appropriately enough, there is a Facebook event page for the trial https://www.facebook.com/events/649954168369985/  (221 people have indicated that they plan to attend).

[Eric’s note: I hope we get some good photos from the trial from those 221 attendees, but I don’t plan to redistribute any of them.]

Related posts:

Court Definitively Rejects AFP’s Argument That Posting a Photo to Twitter Grants AFP a License to Freely Use It — AFP v. Morel

Twitpic Modifies Terms and Claims Exclusive Rights to Distribute Photos Uploaded to Twitpic

TweetPhoto (now Plixi) To Start Charging For Twitter Celeb’s Pics

Court Rejects Agence France-Presse’s Attempt to Claim License to Haiti Earthquake Photos Through Twitter/Twitpic Terms of Service — AFP v. Morel

Twitter Clarifies Usage Rules, but AFP Still Claims Unbridled Right to Use Content Posted to “Twitter/TwitPic

Agence France-Presse Claims Twitter’s Terms of Use Authorize Its Use of Photographs Posted to TwitPic — Agence France-Presse v. Morel

Facebook “Sponsored Stories” Publicity Rights Lawsuit Survives Motion to Dismiss–Fraley v. Facebook

Lawsuit Against Instagram Over Terms of Service Changes Looks Flimsy — Funes v. Instagram

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