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.