Court Denies AFP/Getty Bid to Set Aside Morel Copyright Verdict
The dust is settling on AFP v. Morel, and the wreckage that emerges isn’t pretty.
Following trial, a jury awarded Morel $1,503,889.77 in actual and statutory damages for infringement. The jury also found that defendants violated Morel’s rights under the DMCA (by distributing false copyright management information or modifying/removing copyright management information) and awarded an additional $20,000 for these violations. 
Willful Infringement: Both defendants argued there was insufficient evidence of willful infringement, so enhanced statutory damages were improper. The court says the evidence was “plainly sufficient” to support a jury finding that AFP acted willfully. The person at AFP who sourced the photos testified that he took at face value the statement of a person who claimed to have taken the photographs; and if he knew the person wasn’t even in Haiti at the time, he would have questioned the authorization AFP purportedly received. Although he denied seeing tweets from the purported licensor indicating he was in the Dominican Republic and thus could have not have taken the photos, the jury was entitled to disbelieve him:
Amalvy testified that if he had seen Suero’s tweets indicating that Suero was in the Dominican Republic, he would have questioned whether Suero had the right to authorize distribution of the photographs. Although Amalvy said that he did not see these tweets, the jury could conclude from the fact that he sent multiple Twitter messages to Suero on the same night that he did, in fact see them.
Two other facts cut against AFP: (1) it did not cease distributing the photos immediately, perhaps believing that it could secure a retroactive license, and (2) it “works in an industry where copyright [is] prevalent and has . . . extensive experience with copyright ownership”.
The evidence as to Getty’s willfulness was thinner but also sufficient. Its culpability turned on whether it took corrective action after receiving a “kill notice” from AFP. Unfortunately, a day prior to issuing the kill notice, AFP issued a “caption correction” and this resulted in some confusion on Getty’s side about what images needed to be removed. Ultimately, it was Getty’s responsibility to remove the photos and any deficiency in notices from AFP did not absolve Getty. As with AFP, Getty also works in an industry where “copyright [is] prevalent”.
DMCA Liability: AFP’s caption corrections were sufficient to support a finding of liability under either section of the DMCA dealing with copyright management information. AFP added an identifier (AFP) to the images, and also changed the credit to Morel. When coupled with the fact that it knew the images were not properly licensed, the jury could reasonably find that AFP violated both subsections of the statute.
Getty’s DMCA argument suffers a similar fate—its continued distribution of improperly credited images satisfy section 1202(a). However, the court says there’s insufficient evidence for a finding of a 1202(b) violation. The court says that addition of identifiers does not equal “removal or alteration” of copyright management information and thus the addition of “AFP” and “Getty Images” doesn’t trigger 1202(b) liability. The evidence showed that the two ways information was removed or altered was (1) when Suero removed the image from Twitpic and (2) when AFP changed the photographer credit. There was no evidence that Getty knew or was a part of these underlying violations. With respect to the credit that was changed by AFP, although Getty continued to distribute Suero-credited images (which did not contain altered CMI) it did not continue to distribute Morel-credit images, which did contain the altered CMI. Thus, Getty is only half liable for the DMCA violations (and the awarded against it is reduced from $20,000 to $10,000).
Damages: Morel was awarded $20,000 for 16 DMCA violations. Defendants argued that injury was distinct from a violation and Morel needed to show distinct injuries flowing from each violation. Defendants also argued that the DMCA damages overlapped with the copyright damages. The court rejects both arguments. Defendants also challenged the award for copyright infringement damages but this also falls on deaf ears. The court says that there need not be “correlation” between actual and statutory damages. Even assuming some correlation is required, there was clearly demand for Morel’s images (indeed defendants licensed them):
The earthquake was a major news event, and there was evidence that pictures from on the ground were difficult to come by in its immediate aftermath. In other words, it would be reasonable to conclude that there would have been demand for Morel’s photographs had Defendants not made them widely available to their customers.
Defendants also argued that the amount of the verdict was “shocking to the conscience,” but this only happens in an extreme case and this is not such a case. (The court footnotes Capitol Records v. Thomas-Rasset.)
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The obvious lesson to draw from this is episode is that companies—particularly those who are selling copyrighted works or otherwise distributing them downstream—should not rely on permission granted via social media for copyrighted material. The evidence cited indicates a highly energized, harried environment for sourcing content in the aftermath of the catastrophe, but this was no reason to put aside AFP’s (and Getty’s) standard clearance procedures. It’s worth noting Eric’s comments from an earlier blog post on the case:
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.
The case also brings to mind the “stop digging” adage (the First Law of Holes). AFP inexplicably went scorched earth on Morel even though he clearly had a viable claim. Rather than settling with Morel, AFP dug in and continued to dig. It’s possible they truly believed that they had some license through Twitter’s or Twitpic’s terms of service but I’m skeptical. (See “Court Definitively Rejects AFP’s Argument That Posting a Photo to Twitter Grants AFP a License to Freely Use It“.) They’re still weighing their appeal options (they agreed to an extension of the deadline) but, as the fee petition filed by Morel’s former lawyer shows (she claims approximately $750,000 for her efforts, which does not include trial), litigation costs alone will be in the $3-4 million range. I would be shocked if Morel had been offered and turned down something approaching 50% of this number.
The court notes that both AFP and Getty work in an industry where copyright is “prevalent”. The court does not cite it directly, but AFP knows about copyright and can be litigious about it too. See AFP v. Google. On a related note, recipients of Getty’s threat letters are probably allowed to enjoy a brief moment of Schadenfreude.
A final thought is that the case raised some interesting issues relating to copyright management information and DMCA claims generally. Given that the DMCA award is only a tiny portion of the overall damage award, I would be surprised if the DMCA issue ends up figuring prominently or even being mentioned on appeal.
A tangentially related recent bit of news: “Photo App Twitpic Shuts Down Over Trademark Spat With Twitter”.
Case Citation: AFP v. Morel, 10-cv-2730 (AJN) (S.D.N.Y. Aug. 13, 2014)
Related posts:
AFP & Getty’s Republication of Twitter/Twitpic-Sourced Photos Turns Out to Be Costly – AFP v. Morel
AFP v. Morel – Lawsuit Over Haiti Photos Taken From Twitter/Twitpic Goes to Trial