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.
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.