Moscow, Russia, 18/01/2014. A woman crosses herself as she emerges from the water as Orthodox Christian believers celebrate Epiphany at a lake in southern Moscow. Priests blessed the waters and followers baptised themselves by total immersion in the freezing lake in temperatures of minus 18C.
Photo © Jeremy Nicholl 2014. All Rights Reserved.
Moscow, Russia, 18/01/2014.
A woman crosses herself as she emerges from the water as Orthodox Christian believers celebrate Epiphany at a lake in southern Moscow. Priests blessed the waters and followers baptised themselves by total immersion in the freezing lake in temperatures of minus 18C.

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Yes, you read that headline right. As predicted here, photo agency partners Agence France Presse and Getty Images, ordered in November to pay Haitian photojournalist Daniel Morel $1.22m for wilful copyright infringement of his 2010 earthquake images, are now seeking to have the verdict overturned.

On January 7th, immediately after the New Year break and almost four years to the day since the infringements, lawyers from Venable LLP for AFP and Davis Wright Tremaine LLP for Getty filed post-trial documents asking the court to strike the jury’s finding of wilful infringement and greatly reduce the damages awarded to Morel. Failing that, they have requested that an entirely new trial be held.

Given the catastrophic nature of the Morel verdict for the defendants — courtroom drama fans can read the entire trial transcript here — and the furore that broke out on the defence benches as it was announced, it’s probably safe to say that subsequent discussions between the two agencies and their respective legal teams have been somewhat fraught. Hence the sense of desperation that permeates the submission, which largely consists of cherry-picking evidence already heard at trial. That is to say it spends much time quoting the evidence that was rejected or disbelieved by the jury, while ignoring the evidence that persuaded the jury to throw the book at the hapless defendants.

The highly paid lawyers’ holiday reading has clearly consisted of legal blockbusters. The 42 page Memorandum Of Law In Support Of Post-Trial Motions refers to no less than 79 previous copyright cases, and features some superb examples of Marxist legalese, including this gem:

Even if the jury (i) didn’t believe Bernasconi’s testimony and (ii) thought he did open both links, and (iii) even if they believed that he remembered that both links were to the same images, and (iv) that he knew that copies of those photos, credited to both photographers, were in Getty Images’ system, and (v) that AFP did not have permission to publish them; that still would do absolutely nothing to establish that Bernasconi – who never went into the system to kill any of these images — deliberately or recklessly chose not to remove them, but instead to continue infringing.

But if the language is tortuous the central argument throughout is simple: the case was too complex for the jury, who were influenced by the “corporate wealth of the defendants” and swayed by “a sympathetic plaintiff”. As a result the jury behaved “unreasonably”, bought Morel attorney Joseph Baio’s closing arguments “hook, line and sinker”, and awarded damages that were “shockingly excessive”.

This is of course nonsense. As a result of pre-trial manoeuvring the dice were loaded, the deck stacked and the playing field tilted as far as possible in favour of AFP and Getty: and they still managed to lose. Why? Because the two sides presented their evidence and arguments, the jury considered those, and then chose one side over the other. Memo to Venable and Davis Wright Tremaine: that’s how courts are supposed to work. Whinging after the final whistle that the other side had more convincing evidence and better presentation doesn’t just mark you out as sore losers, but as a bunch of losers, period.

But the AFP and Getty teams have made a point of losing badly ever since the Morel result. In court they were eager to produce the apologies they’d somehow forgotten about over the previous years since the infringements. However once the result was in they felt free to say what they really think. Getty Images general counsel John Lapham quickly claimed that Morel had merely been seeking “notoriety” rather than justice. Meanwhile AFP Photo Director Francis Kohn, unencumbered by the restrictions of the witness box where his colleagues were required to tell the truth, published an extraordinarily misleading account of the case.

When the story of the infringements first broke back in 2010 I wrote:

If AFP are smart they will settle out of court with Morel on whatever terms he’s generous enough to offer. But it’s likely they’ve missed that opportunity. On March 1st Morel’s lawyers wrote to AFP demanding a record of all sales and revenues from the pictures: at that point AFP could probably have negotiated a settlement based on the proceeds of sales to that date.

Instead AFP dramatically upped the ante by filing suit against Morel, presumably gambling that he would drop the matter. But that wager has now backfired, and with Morel’s lawyers claiming multiple infringements at $150,000 a piece AFP now face the possibility of a final bill far in excess of what the pictures would have cost if licensed legally.

So far that prediction has proven correct to the tune of $9m, the estimated total for the damages awarded, Morel’s legal defence costs, and those of AFP and Getty. A further court case will undoubtedly push the bill to AFP – and now Getty – to well over $10m. And where will the bulk of that not-so-small fortune be headed? Why, to the same lawyers who advised AFP to sue Morel, then led AFP and Getty to a uniquely humiliating courtroom defeat, and are now representing them in the continuing fiasco. Nice work if you can get it.

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Izhevsk, Siberia, Russia, 10/11/1993. Weapons inventor Mikhail Kalashnikov on a hunting trip for deer, moose and elk on his birthday.
Photo © Jeremy Nicholl 2013. All Rights Reserved.
Izhevsk, Siberia, Russia, 10/11/1993.
Weapons inventor Mikhail Kalashnikov passes a hunting rifle of his own design to a friend after shooting a moose on a hunting trip on his birthday. The designer of the iconic AK-47 that bears his name died aged 94 yesterday.

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Moscow, Russia, 01/12/2013. Workers dismantle the handle of a giant 30 meter by 9 meter Louis Vuitton suitcase on Red Square. The two storey high suitcase, meant to host a Louis Vuitton display, caused outrage amongst politicians and public, and was ordered to be removed.
Photo © Jeremy Nicholl 2013. All Rights Reserved.
Moscow, Russia, 01/12/2013.
Workers dismantle the handle of a giant 30 meter by 9 meter Louis Vuitton suitcase on Red Square. The two storey high suitcase, meant to host a Louis Vuitton display, caused outrage amongst politicians and public, and was ordered to be removed.

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New York, USA, 22/11/2013. The winning team in the willful copyright infringement case between photojournalist Daniel Morel and AFP and Getty Images. L-R: Attorney Joseph Baio, Daniel Morel, photographer Phyllis Galembo and attorney Emma James.
Winners: Daniel Morel with attorney Joseph Baio, photographer Phyllis Galembo and attorney Emma James. Photo © Jeremy Nicholl

The first thing one sees upon entering the New York Southern District Federal Court in Manhattan is a large circular plaque of the man who gives the courthouse its name. “Thurgood Marshall”, reads the inscription, “American Hero.”

Just before 2pm last Friday another hero walked down the courthouse steps. Almost four years after two of the biggest names in the photography business stole eight of his images of the 2010 Haiti earthquake, then used all their legal resources to try to crush him, photographer Daniel Morel emerged triumphant. After a week of drama and humiliation in court, Agence France Presse and Getty Images had been ordered to pay Morel $1.22m damages for wilful copyright infringement and violations of the Digital Millennium Copyright Act.

It’s hard to overstate the calamity that has befallen AFP and Getty. The $1.22m damages — the maximum possible — awarded to Morel are what garnered the headlines, but they are merely the tip of the iceberg that ripped through the AFP and Getty edifice last Friday afternoon. For one thing the financial costs will be far higher. Nobody knows for sure what the meter is running at, but informed legal sources put the total so far at around $9m: that includes the damages, Morel’s legal defence costs, and those of AFP and Getty. As the losing defendants the agencies will almost certainly be expected to pick up the entire tab.

But — really — it’s not all about the money. Far more serious to AFP and Getty than any financial cost is the damage done to their professional reputations. They now inhabit a unique position in the history of the photography business: the only major digital licensors to have been found liable in a Federal court for the wilful violation of a photojournalist’s copyrights in his own works.

AFP and Getty lost for three reasons. First, they were guilty as sin: the evidence showed that. But of course guilt doesn’t necessarily mean you lose in court, especially when you’ve got the best law money can buy sitting on your side of the courtroom.

Which leads to the second reason: the agencies had invested heavily in legal firepower, but not wisely. How heavily? Both Getty and AFP had four US attorneys in court, and the French agency supplemented their team with a further three lawyers from Paris: a total of eleven lawyers in all. Then there were the paralegals, assistants and witnesses: the defence teams occupied the entire left hand well of the court and spilled over into the public gallery. Taken as a whole, the entire defence all but outnumbered the rest of the court, including the Morel team, the judge, the courtroom staff and the jury.

New York, USA, 22/11/2013. Agence France Presse lawyers including lead attorney Joshua Kaufman [right] outside the Thurgood Marshall US Courthouse after losing their willful copyright infringement case against photojournalist Daniel Morel.
Losers: AFP lawyers including lead attorney Joshua Kaufman [right] outside court after the Morel trial verdict. Photo © Jeremy Nicholl
But quantity can’t replace quality, and in the latter respect the defence was simply woeful. To be fair, the material the defence lawyers had to work with was, especially in the case of AFP, extremely weak. But these were not cheap corner shop lawyers. Between them AFP and Getty were burning through an estimated $10,000 an hour in court: for that kind of money you expect lawyers who can produce legal silk from even the most unpromising sow’s ear. Instead the defence were outclassed and steamrollered at every turn by the Morel duo of Joseph Baio and Emma James. Baio’s closing speech in particular was a bravura performance. Picking through the evidence, alternately mocking and outraged at the defence, he turned to the jury and declared: “I’m going to show the testimony, and you will be the judge.” By the time he sat down after 80 minutes the jury had little alternative but to find the agencies liable and throw the book at them. So impressive was Baio’s performance throughout the trial that the Litigation Daily gave him their Litigator of the Week award. Yes, really: this is America after all. Think of it like the Dodge City Gunslinger of the Week award.

And then there was the third reason: that jury. The tiny band of Morel supporters in court fretted over this. The photo business was complicated. So was copyright. The jury knew nothing about either. And they all looked a bit…ordinary. Working class even. Perhaps they wouldn’t understand all this really hard stuff. But those Morel supporters were wrong: the jury was perfect for Morel for all the reasons his supporters thought they weren’t. They looked at Morel and saw an ordinary Joe just like them who’d been dumped on by multi-billion corporations run by the 1%; then they looked across the court and saw the 1%.

Seated on the far right of the court, facing the serried AFP and Getty ranks on the far left, the jury was as physically distant from the defence as could be. If that gulf between defence and jury could be summed up in a single sentence, Getty lead counsel Marcia Paul provided that sentence in her opening address: “He’s asking you to make him the best paid news photographer on the planet ever.” The jury — that mix of middle class and blue collar — looked across at the soccer team of $1,000 an hour defence attorneys strutting in their designer suits and thought: “Know what Marcia? That’s a great idea.”

Daily reports from the court revealed much of the defence testimony as pure comedy gold. Getty Images Senior Director of Photography News and Sports Pancho Bernasconi served up 57 varieties of “I cannot recall” when questioned by Baio, then promptly demonstrated total recall of the same events when questioned by his own attorney. AFP Photo Desk Chief for Europe and Africa Benjamin Fathers found himself explaining that he’d managed to spend a fortnight in Haiti without delivering promised equipment to Morel from his agent Corbis: even though Morel and AFP were living in the same hotel. AFP Marketing and Sales Director Gilles Tarot attempted to explain to Morel attorney Emma James that cheap sales were all part of the agency’s charity approach: it was their mission to make information available to everyone, so naturally they charged less in developing countries. “There’s a five euro sale here in Austria,” observed James innocently. Then, biting her lip so as not to laugh: “Is Austria a developing country, Mr Tarot?”

The front page haul from the Amalvy heist.
And then there was Vincent Amalvy, the heist merchant himself. Nobody could genuinely describe the AFP editor’s performance as comic. Guilty though he was, it’s just not that funny watching someone skewered as expertly as Amalvy was by Baio. Before the trial Morel’s attorney had expected to spend about four hours on Amalvy: in the end he spent almost eight hours over two days. Understandably Baio just couldn’t let Amalvy go, for the AFP editor was a cross-examining attorney’s dream witness: the gift that kept on giving.

Perhaps the most extraordinary aspect was that none of these witnesses were called by Morel’s lawyers. These were defence witnesses: these were the people that AFP and Getty actually thought would help them win. In his closing arguments lead AFP counsel Joshua Kaufman pointed the jury to the fact that the Morel team had only produced one witness, the photographer himself. But doing so only showed that Kaufman had misunderstood the events of the previous seven days. The Morel team didn’t need to provide their own stream of witnesses because the defence provided all the dirt needed.

And so to the inevitable appeal. Inevitable because although common sense says that AFP and Getty should have abandoned this fight long ago, it’s clear that common sense is in short supply at the two agencies. Inevitable because like two punch-drunk brawlers, the agencies not only don’t know when to stop, they can’t even remember how. But most of all inevitable because legally they have little choice: having fought bitterly to avoid being found liable for wilful infringement, they will desperately feel the need to have the verdict overturned.

That’s because the rules inside court bear only a passing resemblance to the logic of the outside world. What can appear outside as relevant information critical to the case — like the origins of the dispute in question, or the prior history of the opposing parties — can be made to simply disappear inside the legal system. The Morel trial had a shining example of this phenomenon: although the trial had its genesis in AFP’s attempt to sue the photographer, the jury weren’t allowed to know that. In a pre-trial conference the judge accepted AFP’s argument that such knowledge would unfairly prejudice the jury against the defendants. The jury was therefore under the impression that it was Morel, not AFP, that fired the first legal bullet.

Now, as things stand today, were AFP or Getty to face another claim for infringement from a different photographer, defence would be even more difficult than in the Morel case, for any jury could be told of the Morel verdict: the defendants would be presented as serial infringers. But if AFP and Getty can have the Morel verdict overturned, that verdict would for all practical terms in a future courtroom cease to exist: the defendants would appear to have no prior infringing history. The appeal gamble will probably not pay off, and will be more wasted money, but what’s another million or so when you’re already $9m in the hole?

AFP & Getty executives try to apportion blame. Photo © Jeremy Nicholl
But first there will be some bloodletting. Nobody – even a $3.3bn company like Getty – likes to get stuck with a share of a $9m legal bill, especially when they feel they’ve done no wrong. There was a fair amount of finger pointing in court, with each agency blaming the other for the debacle, but the two sides were constrained by court protocol. Now, away from the glare of publicity, they have no reason for restraint: somewhere in a corporate conference room gloves will be removed, knuckle-dusters donned, knives produced. Getty will point to a clause in their suppliers’ contract that indemnifies them against legal costs resulting from suppliers’ actions. AFP will respond that they trained Getty staff in how to monitor, and if necessary correct or remove AFP material from Getty’s systems. There is no common ground here and currently little love lost between the two partners, so both will be quite prepared to spend more legal dollars slugging it out. This will of course be kept as quiet as possible. If there’s one thing the two media giants can definitely agree on, it’s that public and press will be excluded from the next stage of the Morel saga.

AFP have already gone silent, but in their fury Getty have been unable to avoid a further public relations blunder by saying what they really think about the Morel verdict. In court the agency’s lawyers were eager to appear contrite, but with defeat all pretence disappeared . Speaking to the British Journal of Photography, Getty general counsel John Lapham claimed that Morel had merely been seeking “notoriety” rather than justice. Stay classy, Getty.

And finally, what about all those photo industry experts? The friends of photography? The ones who were so sure that AFP and Getty had done no wrong? Most are maintaining an undignified silence, but at least one has been foolish enough to side with John “notorious” Lapham. Perhaps it’s time for such people to step back, take a deep breath and admit the truth: that a seven person jury, with no connection to or experience of the photography business, understood that business and photographers’ copyright better than the self-appointed experts.

UPDATE 30/11/2103. AFP Photo Director Responds To Trial Defeat, Suffers Total Memory Loss

Apparently amnesia is infectious: who knew? Agence France Presse have published a response to the Morel verdict from Francis Kohn, and it appears that the AFP Photo Director has been struck down by the same memory loss that afflicted Getty witness Pancho Bernasconi in court. Kohn’s article is so riddled with errors and omissions of fact it’s hard to know where to begin, but here are just a few of the highlights:

  • “Morel sues AFP. All efforts at reconciliation fail.” In fact it was AFP who first sued Morel, seeking punitive damages from the photographer, not the other way round.
  • Kohn implies that AFP tried to settle with Morel soon after heisting the images. AFP made no offer to settle before attempting to sue the photographer.
  • “The in-house rules at AFP for using social networks lacked precision. A lot of journalists had, at the time, only the vaguest notion of copyright when it came to Twitter, Facebook and other social networks.” In fact AFP had very clear guidelines on social networks in place at the time, and these were shown in court. Amalvy admitted under cross-examination that he had simply ignored the guidelines.
  • “He [Amalvy] comes across some very good photos on the TwitPic account of a certain Lisandro Suero, who is unknown to AFP. As it turns out, Suero is a very young person from the Dominican Republic who appropriated Morel’s images and posted them on his own account under his name. Amalvy is unable to get hold of Suero.” In court Amalvy made the unlikely claim that he had seen the images on Suero’s TwitPic account, yet had not seen Suero’s associated Twitter account that made plain Suero was in the Dominican Republic and therefore could not be the Haiti photographer. Neither the cross-examining lawyer nor the jury believed him.
  • “The credit on the images is changed, with Morel’s name substituted.” AFP never replaced Suero’s name with Morel’s. They simply re-transmitted the images with a new credit line, resulting in multiple copies with differing credit lines in circulation.
  • “At that point [two days after the earthquake], AFP withdraws the pictures from its image bank, and informs its clients of its action.” AFP never issued a kill notice for the Suero credited images. It was to be almost two months before AFP began contacting individual clients regarding the infringing images.

Publishing such a false account of events on the agency’s own website merely serves to call into question AFP’s credibility as a news organisation and toxify the brand. For AFP reporters in the field who have to deal with inconvenient things like facts, Kohn’s fictionalised account of the Morel events must be a cringeworthy embarrassment. Fortunately the post is open to comments from anyone who wants to help refresh Kohn’s memory.

The Full Story Of The AFP & Getty $9M Road To Defeat:

Agence France Presse unveil an avant-garde new business model: steal news photos, then sue the photographer when he objects.

The founder of the Visa Pour L’Image photojournalism festival expresses some surprising opinions on the case.

J-F Leroy attempts to clarify his defence of the behaviour of the agencies that coincidentally happen to finance his photo festival.

It’s important that a business strategy be consistent: AFP get caught in another photo heist.

In the absence of courtroom action a website provocatively heists some Visa Pour L’Image photos – much internet rioting ensues.

In which a photo business expert proves his inability to understand some straightforward legal terms.

“We shall prevail” announce the AFP lawyers at their first court appearance – and promptly lose.

An AFP editor finally states the obvious: but only to her colleagues in internal agency emails.

A pattern emerges as the case reaches its next courtroom stage – and AFP lose again.

It’s only days to disaster now, but despite all the signs AFP and Getty fail to see what is about to befall them.

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