Morel Denied Attorneys’ Fees In Long-Running Suit Over Photos Lifted From Twitpic
Daniel Morel uploaded iconic Haiti earthquake photos to Twitpic and shared them via Twitter. Getty Images and AFP republished the photos without permission, and Morel scored a big $1.2M verdict when the jury ruled in his favor.
However, the court denied his request for attorneys’ fees. Morel said that Getty’s position as a whole was unreasonable. Getty on the other hand, pointed out that although it lost the war, it won some battles along the away. It also raised the novel and ultimately unsuccessful issue of whether defendants could obtain the benefit of Twitter’s broad license terms. The court agrees and focuses on this last point:
The last one, in particular, raised a relatively novel issue, the adjudication of which may, in its own small way, help further define the contours of copyright law in the digital age. The advent of social media, and the internet generally, poses a myriad of issues for both copyright holders and those seeking to license or exploit their work. The federal courts have recognized that “the whole area of social media presents thorny and novel issues with which courts are only now coming to grips.” [citing cases] Beyond the courts, academics and practitioners are similarly coming to terms with the implications of social media and traditional copyright law. Indeed, a substantial amount of commentary discussed the relative novelty of the issue raised in this case and at least some of it suggested that it has had a material impact on social media platforms’ terms of service. Furthermore, resolution of this case has only chipped away at the number of questions social media poses for copyright law. As one article has noted, “The Morel case signifies how the Internet is playing havoc with the principles of copyright law.” In light of the ‘havoc’ surrounding many of the core issues raised by this case, and the questions raised for subsequent cases it is all the more important that litigants be encouraged to test objectively reasonable legal theories in order to better develop the jurisprudential landscape. This weighs strongly against the awarding of attorneys’ fees in this case. [footnotes omitted]
The court finds the remaining Fogerty factors neutral, with one slightly favoring Morel (whether an award would serve objectives of compensation and deterrence).
[The court also awards Morel’s initial counsel a lien on the damages award to cover her share, but trims her request from $1.1 million to $164,580.]
Perhaps the confusion generated by the fast-moving events on social media made it difficult on defendants’ part to figure out the true license owner, but the argument that they could somehow take advantage of a broad social media license never seemed particularly colorable to me. The tougher issues in the case were around damages and some of Morel’s arguments under the DMCA.
In any event, a big break for Getty and AFP.
It’s hard to evaluate if this fee award denial is a big deal or not for Morel. He got some settlements before the $1.2M ruling, so we don’t know how much money he’s received in total. Further, the court says he was represented on a contingency fee basis, so the denial of attorneys’ fees doesn’t necessarily change his share of the damages award (it depends on the terms of the engagement agreement). It’s not even clear that Morel’s counsel lost any real money due to the denial. As Venkat indicates, Morel’s first counsel, Hoffman, sought $1.1M, but the court criticizes her “scattershot” recordkeeping and imposes a series of haircuts on her share. To the extent she also got a piece of settlements along the way, she may very well have gotten fair compensation in total.
It’s worth remembering that Morel turned down a $2M settlement offer on the eve of trial, only to get a $1.2M award. I don’t know if AFP/Getty sought FCRP Rule 68 attorneys fees for their post-settlement offer work. See my post on Veoh discussing that issue.
I’m shocked the court said “this was a close case on the merits.” Like Venkat, I thought AFP/Getty’s position was mockable from day 1 given copyright law’s strict liability. Big props to their lawyers for making the case as colorable as they did.
Case Citation: AFP v. Morel, 10-cv-2730 (AJN) (S.D.N.Y. Mar. 23, 2015)