Haiti Photos on Twitter Won’t Spur Big Payday

     MANHATTAN (CN) – Agence France-Presse and other outlets do not owe $120 million for using photographs of a disaster-torn Haiti found on Twitter, a federal judge ruled.
     Photographer Daniel Morel has been sparring with various news organizations for about three years over their use of his pictures capturing Haiti’s devastating earthquake, which killed an estimated 316,000 people.
     The parties dispute what happened on the evening of Jan. 12, 2010, when Morel put the photographs up on Twitter.
     While Morel claims he uploaded them at 6:13 p.m. and 7:28 p.m., the news outlets contend that he did so exactly three hours later.
     Neither party disagrees that Lisandro Suero, a resident of the Dominican Republic, copied the photos within an hour and Tweeted them as his exclusive content.
     At 9:42 p.m., the AFP’s regional photography director, nonparty Vincent Amalvy, sent Morel an email stating, “Hello – I am the AFP Photo Editor – I am searching to contact you – Do you have images of the earthquake – You can send them to me at this address – vincent.amalvy@afp.com – Thank you.”
     That night, the AFP published nine of Morel’s photographs, credited them to Suero and transmitted them to Getty for wide reprinting, including in the Washington Post.
     After making some efforts to correct the error the following day, Agence France Presse filed a complaint for commercial defamation against Morel. It also sought a declaration that it had not infringed on his copyrighted material.
     Claiming that the email he received proved the wire knew it was infringing on his copyright, Morel filed counterclaims against AFP, Getty Images and the Washington Post.
     He urged the court to include the subscribers of the news wires as violations in the damages calculation, and multiply this by the award reserved for “willful” breaches.
     “Morel’s theory of damages would thus allow a statutory award against Getty and AFP in the tens or hundreds of millions of dollars,” U.S. District Judge Alison Nathan explained.
     In recent coverage of the case, the British Journal of Photography’s estimate placed the requested damages at more than $120 million.
     The AFP in turn asked for total dismissal of the case, claiming that Morel voided infringement claims by publishing the images on Twitter.
     Nathan rejected this argument Monday, citing the social media company’s terms of service. These terms specify: “You retain your rights to any content you submit, post or display,” and “what’s yours is yours – you own the content.”
     Under this standard, the AFP and the Washington Post cannot avoid liability for direct infringement, but a jury could find that Getty is protected under the “safe harbor” clause in its contract, according to the ruling.
     Still, Nathan rejected the theory of damages that Morel hoped would lead to a multimillion-dollar jackpot.
     “The court finds it unlikely that Congress intended the statutory damages provision of the Copyright Act to create such a result,” the 58-page opinion states.
     “Second, and even more persuasive, adopting Morel’s approach would lead to other troubling results,” Nathan wrote. “For example, an infringer who engages in a hundred acts of direct infringement of a single work is liable for only one statutory damages award.”
     Ultimately, the judge chose the less expansive interpretation of what constitutes a violation.
     “AFP and Getty are, at most, each liable for a single statutory damages award per work infringed,” the opinion states.
     Though a jury could grant damages for “willful” violations, the judge said the evidence was “not strong” that the AFP knowingly passed off Morel’s work as that of Suero.
     “The only evidence of substance Morel cites on this point, Amalvy’s 9:42 pm e-mail to Morel, is direct evidence only that Amalvy was aware that Morel was a photojournalist who might have pictures of Haiti, and was actively seeking his photos out,” the opinion states.
     Judge Nathan set a scheduling date of Feb. 1 to prepare for trial.

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