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.
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.
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?”
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 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.
“A Business Model Gone Wild”: Day Of Reckoning Looms For Agence France Presse And Getty Images In Morel Copyright TheftIt’s only days to disaster now, but despite all the signs AFP and Getty fail to see what is about to befall them.
You’d think there’s enough evidence by now that stealing other people’s images is only for the truly dumb. Whether it’s one of the world’s largest news agencies facing a $123M copyright suit, a hipster freetard heisting a veteran photographer’s best-known image, or a British Labour government sabotaging their own election campaign, the sad and expensive results of photo theft are there for all to see.
But no, you just can’t help some people: and so last week two master copyright crooks simultaneously did an excellent job of proving Einstein’s First Theory of Stupidity.
In Arkansas USA wedding photographer and “lover of Jesus” Meagan Kunert had a nice little business going: or at least she did until Canadian wedding photographer Amber Hughes discovered her work on Kunert’s website. Hughes hit twitter, and soon other photographers were reporting that they too had been ripped off by Kunert. The story was picked up by David “Strobist” Hobby’s 65,000 followers, and within hours #fauxtographer was trending and an angry mob with torches and pitchforks were laying siege to every Internet property associated with Kunert, who promptly packed her bags and got out of cyberspace.
Her twitter feed was first to go, rapidly followed by her website, probably sunk under the weight of DMCA takedown notices. Kunert attempted a last stand at Facebook; after pulling her page for few hours she took a revivalist approach, relaunching it with the kind of apology associated with southern preachers who’ve been caught evangelising away from home:
“I hate that I have tarnished the name of Jesus in doing this, and I have got some serious soul searching to do over the coming days, weeks, and months. I know that God does not approve of my choices and that he hates hypocrites such as myself. I also know that God can take my brokenness and turn it around for His glory, which is what I intend to do. If you are the praying folk, I would like to ask you to pay [sic] for me and my family.”
But the Internet is not the deep south and the congregation at Facebook turned out not to be the praying kind: hundreds of comments later it was Kunert who had to pay, as her Facebook page disappeared again, this time probably for good.
Across the pond, just as the Internet was preparing the last rites for Kunert’s business, VoucherDigg set about digging their own grave. One of a myriad of UK companies offering vouchers for package holidays, VoucherDigg was advertising a cheap deal in Portugal from Low Cost Holidays. Naturally they wanted an appropriate image: it had to be from Portugal, and preferably close to the resort they were offering. Ideally it would also need to appeal to families with young children.
And so with impeccable logic VoucherDigg stole the last known photograph of Madeleine McCann, the three year old girl who five years ago disappeared only 25 miles from the holiday resort they were advertising, and the subject of one of the biggest UK and Portuguese news stories of recent times. What could possibly go wrong?
Retribution was public, swift and relentless. The story of VoucherDigg’s use of the McCann photo was rapidly plastered across the world’s media and Low Cost Holidays immediately disowned them. Worse, M’Learned Friends at the world’s scariest law firm announced that they would be handling the matter for the distraught parents. Within a day VoucherDigg shared Kunert’s fate. First their website groaned under the weight of traffic they had probably always dreamed of; then it disappeared as they discovered the reason for their newfound popularity. Finally the site, registered at the University of East Anglia campus in Norwich – presumably at the English As A Foreign Language Department – was replaced by a grovelling apology:
“We were sorry!
Our editing team made the mistake, that Madeleine McCann’s image was linked to the discount holidays to Portugal. We are sorry for the serious wrongdoing that occurred. We unreservedly apologise for the hurt suffered by Mr. and Mrs. McCann.
We regret our not acting faster to sort things out because of our editing team and management overseas not being concerned about the British social news and not realizing the wrongdoing. We realise that this explanation and simply apologising are not enough, because the hurt and damage are irretrievable. In the coming days, we shut down voucherdigg.co.uk to show our sincere apology.
We deeply apologies to Mr. and Mrs. McCann. We deeply apologies to the society. We also apologies to the lowcostholidays for the negative brand affect, who has nothing to do with this issue.”
There are a few lessons in all this for image thieves. For one, Jesus won’t save you: your business is going straight to hell. For another, brush up on your language skills so you can at least produce the literate apology you’re inevitably going to need. But most important of all, join the Meagan Kunert Bible Study Group Inc™ and brush up on your knowledge of the Eighth Commandment: because if you ignore that one the Internet will kick your ass.
Question: what do you call someone who campaigns for anyone to be allowed to publish a photographer’s work without permission, and then complains when someone publishes his wife’s photographs without permission? Answer: Cory Doctorow.
Our old friends Irony and Schadenfreude had a field day last week when writer and wannabe copyright reformer Doctorow mounted the Boing Boing barricades to rant against “the awful Daily Mail, a hateful right-wing tabloid that keeps finding new bottoms to scrape.”
That’s an interesting image, but what was the reason for his ire? Apparently his wife Alice snapped an anorexic mannequin in Gap and uploaded the image to TwitPic; Doctorow then published the photo at Boing Boing accusing Gap of “death camp chic”. The Mail, ever on the lookout for a good scandal, picked up on the story and called asking to use the image.
Despite their reservations about the Mail the Doctorows, after due consideration of, oh, a few seconds or so, decided the hateful right-wing tabloid could have the snap for a charity donation of £250. The Mail [part of Associated Newspapers, with 2010 operating profits of £42M] countered that was beyond their budget. Then the Mail did what the Mail does, and lifted the photo anyway – along with a few juicy quotes into the bargain.
Unsurprisingly the Doctorows were outraged, hence the Cory vent in which he accused the Mail of “ripping off” the picture, ending with a demand for £2,000 for two infringed images and the vaguely threatening words “updates to come, I’m sure”. But could this be the same Cory Doctorow that has spent most of his adult life campaigning for the weakening of copyright laws? The Doctorow that tours as a poster boy for Creative Commons licenses that allow photographers’ work to be used without permission? The one that “rips off” photographs for his own articles?
Well, er, yes; which is why a few of the responses to his article were less than kind, accusing him of hypocrisy. However the Doctorow fan boys, like Cory usually very much in favour of redistributing photographers’ work without permission, felt his pain and the comments were largely filled with suggestions that the Doctorows should call M’ Learned Friends. Although it would be highly entertaining to watch the Doctorows sue the Mail for copyright infringement that’s sadly not going to happen; or at the very least they’ll have to get in line.
For what the Doctorows overlooked is that in uploading the image to TwitPic they had already given away their image distribution rights long before the Mail came calling. As the rest of the Internet already knows, TwitPic signed a highly contentious deal with the World Entertainment News Network in May that gives WENN distribution rights to any images uploaded to TwitPic, and without any payment to the image owner. So if anyone is going to be suing the Mail it will be WENN, not the Doctorows. Interestingly the story disappeared from the Mail site over the weekend without the Doctorows’ knowledge, so it may be that WENN have already contacted the paper.
The final irony is that only hours after his Mail bitch-fest, Doctorow was busy ripping off photographs himself. On August 16th, the day of Doctorow’s rant, the Guardian ran a story from the Edinburgh Festival with a photograph by Murdo Macleod. And the following day there was a story about the Edinburgh Festival on Boing Boing, filed by Cory Doctorow and with that very same Murdo Macleod image. Doubtless Doctorow took time off from discussing the Mail with his lawyers to ask Macleod’s permission to use the image. If not he will have already calculated what he owes Macleod for “ripping off” the photo: his own going rate of £1,000 per image.
It’s clear that Doctorow, despite his carefully constructed image as a cutting-edge thinker on intellectual property matters, has a lot to learn when it comes to copyright. But last week should have provided a lesson simple enough for even Doctorow to grasp: when it comes to intellectual property and ripping off other people’s photographs, what goes around comes around.
Last week showbiz news agency WENN announced a deal with Plixi to charge publishers who use images uploaded via the social media firm. The reason for the arrangement is simple. Plixi provides a vital public service by allowing the likes of Courtney Love to share her ladyparts with the world; and WENN is well positioned to make publishers pay the going rate for images of 47 year old divorcees in the bathroom, rather than swipe them for free as they have been doing. Proceeds from the sales of this important documentary imagery will apparently be split between WENN and Plixi: the photographers and copyright owners will – you guessed – get nothing.
Announcing the deal, WENN Chief Executive Lloyd Beiny presented himself as an old-fashioned lawman, claiming the arrangement will end the “digital Wild West” that has allowed publishers to “liberally help themselves to photos posted on Plixi and reproduce them with scant concern for the ownership of copyright”. Flanked by a posse of deputies riding shotgun Marshall Beiny continued:
“Everyone has turned a blind eye to the use of these pictures up until now, but sooner or later the people who own them are going to say you can’t just steal our pictures and republish them without paying for them.”
Beiny’s major think-fail is obvious, but just to spell it out: neither WENN nor Plixi are “the people who own” the pictures. Before the deal Courtney et al could simply drop their kaks, upload the images and await the free publicity. Nothing has changed in that process except that now WENN & Plixi will step in to demand a fee from anyone providing that publicity.
So, far from being the lawman riding into town to impose order, Beiny’s announcement is closer to other fine old Western traditions such as cattle rustling and land-grabs.
“Plixi does not claim ownership of content you submit or make available for inclusion on the service. However, with respect to content you submit or make available for inclusion on publicly accessible areas of the service, you grant Plixi the following worldwide, royalty-free and non-exclusive license(s), as applicable:
“With respect to content you submit or make available for inclusion on publicly accessible areas of Plixi, the license (with the right to sublicense) to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such content, whether on the service, or through other media.
“This license exists only for as long as you elect to continue to include such content on the service and will terminate at the time you remove or Plixi removes such content from the service; provided, however, that if Plixi distributes or authorizes distribution of any content prior to your removal thereof from the service, Plixi’s (and it’s sublicenses’) rights with respect to such content shall be in perpetuity.”
The funniest thing about this scheme is that of course it won’t work. Plixi is hardly unique: it is only one of a number of applications that allow users to link their images to their tweets. Users with images of any value to upload will simply go elsewhere.
The other problem is that WENN and Plixi are seeking to enforce the new terms retrospectively on material already uploaded. Retrospective terms are always a happy hunting ground for lawyers, and both celebs and publishers have plenty of those on tap. No publisher is going to pay for an already published image uploaded under Plixi’s former terms; and any celeb now regretting any previous careless uploads will doubtless be made even more unhappy at seeing WENN and Plixi cash in on their photographic faux pas. So one way or another expect to see this new deal challenged in court before long.
Still, there are worse fates than ending up in court wrangling over ownership of some Z-lister’s private parts. After all, in the good old days cattle rustling was a capital offence.