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.

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.

For Daniel Morel, Agence France Presse and Getty Images the end is nigh. Nearly four years after AFP stole the Haitian photographer’s iconic and award-winning images of the 2010 Port au Prince earthquake a jury will decide whether the two agencies are guilty of willful copyright infringement. The trial will begin on November 13th in the Thurgood Marshall US Court House in Manhattan and is scheduled to last up to six days. Morel is seeking the maximum statutory damages available under US copyright law: if found guilty AFP and Getty could face a bill running into millions of dollars including very substantial legal costs.

In fact AFP and Getty have already been found guilty of infringing the eight Morel images in question. In January of this year, Judge Alison Nathan found that the two media giants violated the US Copyright Act and infringed Morel’s copyright when they took his photographs off the internet, misidentified them, added their own names to the credit lines, and licensed them to their worldwide clients. In the forthcoming trial the jury will be asked to decide whether the agencies acted “willfully”: it is this specific legal term that could open the agencies to such massive damages.

Unsurprisingly lawyers from both sides are now preparing the ground meticulously. The evidence to be argued over in court is being argued over before it gets anywhere near the court. Objections – many, many objections – are being lodged. Notably, AFP and Getty have attempted to have evidence of the scale of their operations withheld from the jury: it’s hard to gain sympathy when you’re the Goliath who’s been found guilty on the same evidence in the same courthouse only months earlier. Even the precise wording of all the possible verdicts is being picked over.

The reason for such forensic attention to detail is simple. In a trial where the reputations of AFP and Getty – not mention a substantial chunk of cash – may turn on that single word “willful”, the agencies are determined to make it as difficult as possible for the Morel team to prove willfulness to the jury.

“If you have looked at a newspaper article about Haiti over the past 25 years, the chances are excellent that you have seen the work of the photographer Daniel Morel” – James North. Morel was first inspired to become a photographer as a 13 year old after witnessing a public execution in Port au Prince and seeing the resulting photographs. “I thought that by being a photographer, I would learn not to be scared of anything,” he says. His photographs of the 2010 earthquake in his home town won first prize in the Spot News category of that year’s World Press photo contest, and were the crowning achievement of a career working for Associated Press and many international publications.

Tracing its roots back to 1835, Agence France-Presse is both the oldest international news agency in the world and one of the largest, with 2,260 staff in 200 bureaus in 150 countries. Publishing in six languages, it boasts of a growing business and turnover of 288 million Euros in 2012. In 2003 AFP went into partnership with Getty Images in a deal that allows each agency to distribute the other’s material in certain areas. It was under the terms of this partnership that AFP supplied the Morel images to Getty for distribution in North America. AFP is no stranger to high profile copyright controversy. In 2007 the agency sued Google for copyright infringement, seeking at least $17.5m in damages; the case was settled out of court with a licensing deal between the opposing parties.

Getty Images is often described as the 800 pound gorilla of the stock photography business, but that description barely does the company justice. The world’s biggest photo agency grew out Getty Investments LLC, founded by Mark Getty and Jonathan Klein in 1995, gaining its present name in 1997. With Getty’s declaration that “intellectual property is the oil of the 21st century” as a touchstone, the company has grown to dominate the photo industry through an aggressive programme of acquisition. It has spent hundreds of millions of dollars buying traditional photo agencies, consolidating and rebranding the collections under the Getty Images banner. Ironically for a company on the wrong end of such a high profile copyright lawsuit Getty have themselves earned a reputation for being unusually aggressive in their pursuit of copyright infringers. In 2008 Getty Images was acquired for an estimated $2.4bn by private equity firm Hellman & Friedman, who subsequently sold the agency to the Carlyle Group in 2012 for $3.3bn. Getty and Klein remain the company’s Chairman and CEO.

But anyone who has followed the case can have no doubt: the behaviour of AFP and Getty has been both willful and reckless, not to mention thuggish and comically incompetent. This is the photo industry’s version of the Corleone mob, but played by the Marx Brothers.

The downloading and distribution of the Morel images, even if from a TwitPic account other than Morel’s, was a straightforward breach of US copyright law: to do so when unsure of the identity of the images’ owner is the very definition of recklessness. Numerous emails from both AFP and Getty editors in the hours after the heist plainly show that both agencies quickly knew Morel was the true owner of the images. When the agencies finally tried to purge their databases of the Morel images they were unable to do so, partly because they had changed the copyright management information, and partly because they had “no definitive workflow” for images subject to a Mandatory Kill.

Most astonishing perhaps has been the claim by AFP editor Vincent Almavy – the man who downloaded the Morel images – that the agency’s own guidelines don’t apply in breaking news situations. And Almavy has managed to compound that evidential train wreck by bragging of the “success” AFP achieved with widespread publication of the stolen Morel images.

But of all the blunders AFP and Getty have committed in the Morel case, none can compare with the decision to declare legal war on Morel for defending his own copyright. Apparently nobody at AFP has heard of the Streisand Effect, in which a bungled attempt to suppress information only results in a much broader dissemination of the information in question. Most copyright infringements, even in a case as egregious as this, are quietly settled out of court. Before AFP attempted to sue Morel only a few people directly connected with the use of his images were aware of any dispute. The news that a photo agency was attempting to sue the very photographer whose images they had stolen lit a very predictable firestorm that brilliantly illuminated AFP’s own questionable business practices.They were exposed, in the words of Photo District News, as “a big corporation with the money and lawyers to beat up small copyright owners in court”.

Except it hasn’t worked out like that: instead of rolling over as AFP undoubtedly expected, Morel hit back with his own legal suit. Since then AFP’s legal strategy has taken a long and expensive trip downhill. With the exception of their partners at Getty, all AFP’s co-defendants from Morel’s original suit have done the smart thing and settled. As the case has ground through the courts AFP and Getty have jumped through hoops trying every imaginable legal strategy to get Morel’s suit dismissed. And on every occasion the agencies have suffered a humiliating defeat on all the substantive issues.

Now, finally, AFP and Getty have nowhere left to hide. Next week much of the same evidence that led to a guilty verdict in January will be represented to a new jury. Only this time the stakes are much higher, and if AFP and Getty end up with their reputations in tatters and a multi-million dollar bill for damages they will have only themselves to blame.

The Road To Court:

January 12th, 2010

4:54pm: The biggest Caribbean earthquake for 200 years hits Port-au-Prince. Haitian photojournalist Daniel Morel, the only photographer at the epicentre, photographs the immediate aftermath as the shocks continue.

5:20pm: Morel opens a Twitter account saying he has exclusive earthquake images and uploads 13 photos to his associated TwitPic account.

5:28pm: The previously unknown Lisandro Suero, located in the Dominican Republic, reposts the Morel images to his own TwitPic account and also announces on Twitter that he has earthquake images.

7:12pm: AFP director of photography for North and South America Vincent Amalvy tweets Morel asking “do you have pictures?”

9:41pm: Amalvy again tweets Morel asking for images.

9:45pm: Amalvy copies the Morel images from the Suero TwitPic account & uploads them to the AFP system. Distribution begins with the credit line Lisandro Suero/AFP/Getty Images.

11:04pm: Andreas Gebhard, Getty Images Manager, Global Picture Desk, emails Francisco Bernasconi, Senior Director of Photography News and Sports at Getty Images: “Not sure if it’s worth contacting twitter.com/photomorel. Name is Daniel Morel. Don’t know anything else. Pix on twitter look very decent.” Three minutes later Bernasconi responds: “Former AP staff shooter..I don’t want to contact directly now. He normally works for Corbis now.”

January 13th, 2010

2:06am: Indicating that he knows the true owner of the images, Chief of Desk for AFP Paris Benjamin Fathers tweets to Morel “Hi Daniel, great pictures from such a difficult environment. I work for AFP, please e-mail.”

4:36am: Fathers emails Amalvy: “Vincent – I’m not certain Lisandro Suero’s photos are his but they belong to Daniel Morel – Look”, and includes a link to the images at Morel’s TwitPic account.

5:38am: Fathers tweets Morel “Daniel, I work for AFP, please contact me.”

5:54am: Fathers again tweets Morel “Daniel, I work for AFP, please contact me.”

5:55am: Fathers tweets Morel “Daniel, I work for AFP, I am very interested in your photos, please contact me.”

January 14th, 2010

AFP deputy photo editor for North America Eva Hambach returns from vacation and warns the agency: “US copyright law requires that the images be pulled and removed.” AFP issue a Mandatory Kill notice, but because the agency has changed the copyright management information several times many images continue to be distributed.

January – February 2010

Morel and his lawyers send cease and desist letters to AFP, Getty and their clients warning that the images are being distributed without permission. Despite the warnings distribution continues until at least March 3rd.

March 9th, 2010

Getty Images Director of Content Management Chris Eisenberg emails the agency: “We currently have 32 AFP images with ‘Mandatory Kill’ in the caption on the website, and when I spot checked, the original image for at least one of those is still on our website.”

March 16th, 2010

Hambach emails Amalvy on the impossibility of clearing the internet of all AFP’s Morel images and suggests that lawyers will have to negotiate a settlement. She concludes “AFP got caught with a hand in the cookie jar and will have to pay.” Amalvy responds by suggesting they attempt to blame Morel: “We have to show that this guy put the picture in high definition on the web and that’s the reason.”

March 26th, 2010

In response to Morel’s cease and desist letters AFP take a leaf out of the Saul Goodman playbook and file suit against the photographer for “antagonistic assertion of rights”, demanding legal fees and damages against Morel.

April 21st, 2010

Morel hits back, filing suit against AFP, Getty and numerous agency clients for multiple willful copyright infringement.

December 23rd, 2010

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

2011 – 2012

Numerous AFP & Getty clients who had licensed the images from the agencies settle out of court with Morel for copyright infringement.

May 2012

Attempts at reaching a summary judgement flounder as a fuller picture emerges of activities at AFP and Getty during the Morel fiasco. Among the revelations are that Amalvy also stole a number of other images from websites on the evening of the earthquake, and that AFP ignored their own written rules for using social media content, rules that specifically warned of the “significant risks” of stolen images and copyright abuse. Amalvy attempts to justify this by claiming that in fast moving news situations guidelines such as those in AFP’s rulebook don’t apply.

January 14th, 2013

A New York federal court upholds Morel’s claim against AFP and Getty for multiple copyright infringement, clearing the way for this month’s trial. The January trial provides the clearest picture yet of the behaviour of AFP and Getty, described as “essentially a business model gone wild”.

The Whole Sorry Story In Links:

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.

So, AFP, how’s that “steal the photos & sue the photographer” business plan working out then?

Three years almost to the day since photo agency AFP heisted Haitian photographer Daniel Morel’s award-winning photographs of the 2010 earthquake the first court decision has been handed down in what has evolved into a high-profile and significant copyright case. In a humiliating ruling against the agency, a New York court has upheld Morel’s claim for copyright infringement against AFP. The agency had initially attempted to sue the photographer when he objected to their theft of his images from Twitpic, where he had uploaded them and linked to his Twitter account in an attempt to market his work.

This isn’t the end of the affair though, just the beginning of the end. For one thing, there’s the matter of the bill AFP will face. Morel’s claim against AFP calculated damages based on treating each download of any of his images by an AFP client as a separate infringement. This resulted in a figure so huge that nobody seemed quite sure what it was, but it certainly totaled upwards of 100 million dollars. The judge however threw this calculation out, stating that the law only allowed for one infringement per image, not for each use of that image. But although the court has now set the rules on how the damages should be assessed it declined to make an actual assessment, leaving that for a jury to later decide.

Morel uploaded 13 images, of which 8 were infringed, and the maximum allowed per image is $150,000. There’s also the matter of AFP’s falsification of Morel’s copyright information, which allows for up to a further $25,000 in damages per image. So the maximum the jury can award against AFP is $1,400,000. For their part AFP previously asked in a court memorandum that if found guilty they should pay only $240,000. Whether that memorandum will even apply when the matter comes before the jury is unclear; what is now clear is that AFP’s final bill will be somewhere between a quarter of a million and one and a half million dollars, plus substantial legal costs.

Exactly how much will be decided by the jury, who will decide partly on the evidence of willfulness in the AFP infringements; but since courtrooms are theatre they will also be swayed by the performances of the lawyers and witnesses. So far the AFP legal team’s performance has not been Oscar material: while outside court they have declared “we shall prevail”, inside they have at times been mocked by the judge. There’s plenty of evidence of willfulness in AFP internal memos that have already come to light, but it’s the agency’s director of photography for North and South America Vincent Amalvy who is likely to deliver the killer blow. In addition to his involvement in the Morel fiasco Amalvy was also caught stealing other Haitian images, and has already admitted that when it comes to breaking news AFP toss out the copyright rulebook. Such behaviour is unlikely to play well with the jury, so while the eventual award may not reach the maximum allowable, bet on it getting into six figures.

But the real final total for the Haitian infringements will almost certainly be more, possibly much more. For although AFP and Getty are the headline defendants in the case, their distribution of the images led to many further infringements by end users such as Time, CNN and many others. These have already been settled out of court for undisclosed sums. And the AFP ruling doesn’t include co-defendants Getty Images: that will be addressed by a jury trial, and should Getty lose the result will be further substantial damages awarded to Morel.

A press release from Morel’s lawyers the Hoffman Law Firm following the AFP ruling both addressed the issue of damages and hinted at the fate that may befall Getty:

“Although Judge Nathan rejected Morel’s legal theory entitling him to as much as one hundred twenty million dollars in statutory damages, Morel still hopes to win millions in damages following the trial. The ruling and the case may have implications for users of social media as well as ‘service providers’.”

That leads directly to the issue of AFP’s partner and co-defendant Getty Images. The court didn’t rule on Getty’s culpability, leaving that decision to a further jury trial, since Getty eventually entered a different defence from AFP. That defence is, to say the least, interesting, since it essentially hinges on Getty throwing their partner under a bus:

“Getty Images requires and relies on the representations AFP makes about its content in the License Agreement. It could not possibly investigate whether the hundreds of thousands of images that AFP transmits to Getty Images’ database every year infringe other parties’ copyrights, without altering its business model, incurring massive expense.”

The law Getty are relying on to back that statement up is the Digital Millennium Copyright Act, specifically the clause that absolves internet service providers from guilt when infringing material is uploaded to their servers by a third party: this is commonly referred to as the safe harbour or Youtube clause.

At first sight that looks like a viable defence: the DMCA is quite specific in its requirements and Getty appear to have been careful comply with at least some of them. But there are at least two potentially fatal flaws in Getty’s strategy. For one, the DMCA is specifically intended to protect an internet service provider from the legal consequences of copyright infringement on their servers initiated by a party over whom they have no control: Youtube should not be held responsible for the behaviour of a teenager uploading pop videos is the rationale. But such a comparison is obviously absurd: Getty and AFP are major media companies who have entered into a legal agreement to syndicate images for big money, not teens sharing ripped vids.

Secondly, the DMCA only protects a provider when the entire process of the infringement is automated. Getty are stressing the automated nature of both the AFP feed and Getty’s own distribution system. However this argument is undermined by evidence that Getty staff manually altered metadata attached to the Morel images, and that agency staff licensed some of the images in telephone sales.

And the biggest problem for Getty is that they are relying completely on the DMCA to get them off the hook: they have no other options left. So in the end Getty’s reliance on the DMCA may prove to be a sign of desperation rather than clever legal maneuvering.

Away from the courtroom there’s also a comic sub-plot to be resolved, starring various figures who either absolved AFP of blame or actively defended the agency’s actions.  Aside 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 Leroy.

Osterreicher – who’s only a lawyer after all – managed to read the wrong company Terms of Service, quoting those of Twitter when the ones that mattered were those of Twitpic. Harrington, who posits himself as a business expert, got the company right but the date wrong, relying on ToS that Twitpic had introduced after and in response to the AFP theft: that led him to proclaim “AFP did the right thing”. And Leroy was especially vociferous in his defence of the accused, a stance that most observers concluded was entirely unconnected with the agencies’ close association with, and sponsorship of, his Perpignan photo festival.

Curiously, some of these carefully considered expert opinions have now mysteriously disappeared. In the wake of AFP’s crushing defeat it would be interesting to hear what Osterreicher, Harrington and Leroy have to say for themselves now. Instead expect only the sound of web pages being deleted.

“Make sure the internet never loses. Ever.” Last week saw the launch of the Internet Defense League, a self-appointed “loose coalition that shares a commitment to defending the Internet.” In a spot of ambush marketing timed to coincide with the release of The Dark Knight Rises, and boasting their very own cat signal, the IDL issued a nerdy call to arms:

“The Internet Blackout was just the beginning. Together, our websites and personal networks can mobilize the planet to defend the internet from bad laws & monopolies. Are you in?”

It’s hard not to point and laugh at a group whose world-view is defined by comic books and one of whose supporters was so excited by the news that they couldn’t tell their cats from their bats. As copyright attorney Leslie Burns commented on twitter: “OMG… When they get out of their parents’ basements, I’ll take the IDL seriously.”

But dismissing the IDL as a bunch of juvenile jokers is a mistake. In fact many of them promote such an image as part of their marketing schtick: follow the money and a rather different picture emerges. One of the prime movers behind the IDL is social news site Reddit. Far from being just a bit batty, Reddit is a subsidiary of Advance Publications Inc, the multibillion dollar media empire privately owned by the Newhouse family, a publishing dynasty that makes the Murdoch clan look like new kids on the block. Well, how about another IDL founder, the Cheezburger Network? Surely the inventors of Lolcats fit the bill of kiddy nerds fooling around in their parents’ basement? Not quite: in the last few years Cheezburger, under CEO Ben Huh, has trousered $32 million in venture capital. Music-sharing site Grooveshark is one of the IDL’s less-wealthy founders: a mere $4.5 million in recent funding. The Open Technology Institute is a project from the New America Foundation, which boasts an impressive list of well-off sponsors including contributions of over $1 million a head from the Bill & Melinda Gates Foundation and Eric & Wendy Schmidt of Google fame.

The list goes on and the true picture is clear: most of the IDL founders are full or aspiring members of the Internet Fat Cat League. And just as the IDL’s hipster image is misleading, so are their stated aims. The IDL claim they aim to “mobilize the planet to defend the internet from bad laws”: expect this to be dressed up in much high-minded talk of free speech and scary guff about legislation that will “break the internet”.

However the only laws that interest the IDL are those relating to intellectual property, and with good reason: the IDL’s movers are not so much interested in free speech as free content. The genesis of the IDL was the so-called Internet Blackout of January 18, when many sites, including some of the IDL founders, went off-line in protest at the USA’s proposed Stop Online Piracy Act. SOPA was portrayed by protesters as an attempt at Internet censorship, but the real threat was to the business model of sites that rely on the so-called safe harbour provisions of the Digital Millennium Copyright Act to protect them against legal action for copyright infringement. Sites like… Cheezburger, Grooveshark and many other IDL founders.

When these corporations – for that’s what they are – rant against legislation in the name of free speech it’s merely a smokescreen: all they’re really doing is acting to protect their business interests. It’s hard to raise a torches and pitchforks mob with a cry of “defend my venture capital”, but “defend the Internet” will do the trick every time. SOPA was shelved, at least in part because the protesters comprehensively won the propaganda war, successfully portraying the bill’s supporters as greedy corporations out to – you guessed – break the Internet. And so, buoyed with success and wary of a future SOPA, the IDL was born.

As it happens, there’s a very good analogy for the many of the IDL’s founders, but it’s not kids in basements. Like the spivs of the banking industry, the freetards at Cheezburger et al have developed business models based on theft. Both the spivs and the freetards display an overwhelming sense of entitlement. And when faced with legislation both groups raise the same battle cry: “You don’t understand how these things work, regulation will break the system.”

Since most legislators understand little about the workings of either the Internet or the financial markets it’s not surprising that such a strategy is successful. No politician wants to be accused of supporting laws that wreck either the financial markets or that new-fangled interweb thingy. So if SOPA or similar does return, expect it to be accompanied by large helpings of very well-funded FUD from the IDL. Perhaps they should replace that cat on their signal with a dollar sign.

What I’m thinking…

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