“I’ve got your AFP settlement...” Photo © Jeremy Nicholl
Haitian photographer Daniel Morel has received a welcome Christmas present in his ongoing case against Agence France Presse and others. On December 23 New York District Judge William H Pauley quashed an application by AFP and the other defendants to prevent Morel suing for multiple copyright infringements of his work from last January’s Haitian earthquake.

Unless the parties reach a settlement out of court Morel’s claims will go to a full jury trial in the New Year. AFP, Getty Images, CBS Broadcasting and Turner Broadcasting will face claims for copyright infringement and Digital Millennium Copyright Act violations; AFP and Getty will face further claims for contributory infringement and vicarious infringement. With widespread misuse of 13 images alleged damages and legal costs could run into many millions of dollars.

The judgement is a massive blow to lead defendants AFP and Getty, not only because it allows Morel’s claims to proceed to full trial, but because the reasoning behind the ruling comprehensively demolishes the agencies’ defences against those claims. The AFP/Getty defence has always been that Twitter and/or TwitPic’s terms of use permitted the agencies to redistribute the photographer’s material: since the court has comprehensively rejected that argument as a defence to prevent Morel’s claims to proceed, it’s highly unlikely that the jury trial will accept any attempt to use the same defence against the claims themselves.

Essentially the defendants’ best option now is the same as it always was: quietly admit guilt and settle out of court on the best terms offered. Their problem is that they already tried that before the recent ruling and were rebuffed, so there’s no obvious reason why Morel should offer them a deal in their now severely weakened state. On the contrary Morel’s incentive is to go for the jugular, a favourable outcome in court when the claims are heard and maximum damages.

Indeed hitting AFP and Getty as hard as possible appears to have been the strategy of Morel’s lawyers from the start: not only are they pursuing the defendants under copyright law, but they also attempted to do so under trademark legislation, primarily for false advertising. Judge Pauley rejected all the trademark applications, which might lead a careless reader to think the defendants are somehow off the hook, but that is not the case. On the contrary it’s notable that at every point in his ruling where Pauley turned down Morel’s applications under trademark law the judge reminded him that the court was doing so because the protection and compensation he seeks are available through his applications under copyright law. The core of Pauley’s ruling is thus: “I’m not letting you go after them under trademark legislation because the law doesn’t allow it; but don’t worry, you can nail the bastards under copyright law.”

Pauley also rejected AFP’s sole remaining – and most ludicrous – defence, the so-called Content Management Information argument. In this AFP attorney Joshua Kaufman tied himself in knots trying to make a claim that Pauley derided as “implausible”: that because the words “by photomorel” merely appeared alongside the photographs, rather than being embedded in the images, a viewer – such as AFP – was unable to identify the author.

The ruling not only leaves AFP’s legal strategy in disarray, it is deeply embarrassing for a number of observers and would-be experts who have spoken out in support of the agency. On the eve of the case US National Press Photographers’ Association lawyer Mickey H. Osterreicher announced:

“Unfortunately for Mr. Morel, in an attempt to transmit his spot news photographs of the Haiti earthquake to the outside world he apparently overlooked the the applicable terms and conditions of posting images on Twitter.”

That’s exactly the opposite of the court ruling: let’s hope Mr. Osterreicher never has to present a case to Judge Pauley.

And Visa Pour L’Image Director Jean Francois Leroy got into an unseemly wrangle at the DuckRabbit Blog after attempting to defend AFP in the British Journal of Photography:

“Anyone who puts images on Flickr or on Twitter, and then sees them being used, well too bad for him… a photographer should never put his images on a social networking site. If you put your image on Twitter or Flickr and find that it’s been stolen by someone else, well… tough.”

Wrong again. Pauley’s ruling states very clearly what was obvious from the start: that photographers are entitled to exactly the same protection at social networking sites as they are, for example, at the Visa Pour L’Image site.

Worst of all however was Washington photographer and business advisor John Harrington, who published a lengthy defence of AFP and attack on Morel last October. In light of the ruling it’s worth revisiting some of Harrington’s insights:

“The photographer is in the wrong”

“Their [Twitter’s] conveyance of those rights to third parties – in this case AFP, is perfectly within the bounds of their rights, and Morel is out of line.”

“The fact is, Twitter’s T&C give AFP permission, granted to them by Morel, when he accepted them as a condition of his use of Twitter.”

“AFP did NOT steal them, they have a license (permission) to use them.”

“AFP has obtained their rights from Twitter who legitimately got them from Twitpic who legitimately got them from Morel. AFP did the right thing.”

How about that for sound business advice?

One way or another all of these people claim to have the best interests of photographers at heart, yet they have all made interventions that are not only contrary to those interests, but that have been exposed by the court ruling as factually and legally incorrect. It will be interesting to hear what, if anything, are their reactions to the judgment.

Is that the sound of silence we hear?

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7 Responses to “Christmas Cheer For Morel As Judge Rejects AFP Humbug”

  1. Yeah, I removed John Harrington from my blogroll some time ago. This confirms my feelings about him as correct, certainly as far as this is concerned. As for AFP’s content management information argument…. You would think that putting that in front of a judge would be grounds for contempt of court for that is surely what it is.
    Regards. Patrick.

  2. Great write up (as ever).

    Contrary to the likes of what Harrington and Leroy said this is an important win for photography, By continuing the case Morel has ensured that photographers keep their rights and he will be rewarded with a massive, hopefully punitive settlement.

    Can you imagine what the jury is going to think of the way Getty and AFP have acted?

  3. DonkyBhoy DonkyBhoy says:

    great news for independent photographers world wide. Leroy is an embarrasment to the industry. Agencies have always put money before photographers. I hope Morel screws them all the way. No doubt there will be cries of damaging the industry, but if they want to steal images they have to take the punishment when they get caught. Crime does not pay!

  4. Nick Nick says:

    Nice to see a win for photographers and common sense for once – thanks for covering this Jeremy

  5. [...] as the doomed Agence France Presse case against Haitian photographer Daniel Morel suffers yet another blow, the action on Twitter related [...]

  6. [...] from the usual freetard nutters these included the National Press Photographer Association’s Mickey Osterreicher, photo blogger John Harrington and Visa Pour L’Image’s J-F [...]

  7. [...] NY District Court quashes an application by AFP to prevent Morel suing for multiple copyright infringements. Despite defeat AFP lawyers declare “We will prevail”. [...]

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