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.