Editor’s note: This article originally appeared in the winter 2014 print issue of Gateway Journalism Review.
In a case that offers a reminder that material found online cannot simply be reused without regard to copyright considerations, a federal jury in Manhattan awarded a photographer $1.2 million in November against a news agency that, without the photographer’s permission, distributed photos he had posted to Twitter.
American copyright law provides that a creative work is protected by copyright the moment it is created, and is owned by either its creator or, if the item created was a “work for hire,” the creator’s employer. This copyright protection persists even if the creator makes the work available on the Internet, and even if it can be easily downloaded and copied. Downloading, copying and reusing a work found on the Internet without the owner’s permission is infringement, unless the copying or reuse is covered by the “fair use” principle extended to uses such as news and education, as long as the use is not overly extensive and does not substantially harm the potential commercial market for the work.
The New York case, Agence France Presse v. Morel, involved pictures of the Jan. 12, 2010, Haitian earthquake taken by photographer Daniel Morel. Morel, a freelance photographer in Haiti, has a contract that gives the photo agency Corbis the exclusive right to distribute the pictures he sends to that agency.
The evening after the earthquake, Morel posted several photographs of the aftermath to Twitter through his account with a service called TwitPic. Shortly thereafter, another person, Lisandro Suero, posted Morel’s pictures to his own Twitter account, claiming that they were his exclusive photos.
A photo editor for the news and photo agency Agence France Presse (AFP), searching online for photos of the earthquake, found the photographs posted by Suero and passed eight of them on the agency’s photo “wire service,” crediting them to Suero. Through an arrangement that AFP has with Getty Images, another photo agency, the photos credited to Suero were distributed through that service as well.
By the next morning, editors at AFP began to suspect that the photos did not belong to Suero. A few hours later, AFP sent a “caption correction” to its subscribers and changed the photo credits on Morel’s photos in its online archive. AFP also sent the correction to Getty and resent the photos with credits to Morel, all of which automatically went to Getty subscribers. But Getty did not change the credits on the photos attributed to Suero in its Web archive.
Later that day, Corbis informed Getty – via an email to a Getty paralegal – that Corbis has exclusive rights to distribute Morel’s photos. Getty then removed the photos correctly credited to Morel from its customer website but did not remove the photos by Morel incorrectly credited to Suero. Getty also informed AFP, which on Jan. 14 issued a “kill notice” to subscribers regarding the photos credited to Morel, and removed those photos from its own archive. The AFP kill notice also was sent to Getty’s subscribers.
On Feb. 2, Corbis informed Getty that Morel’s photos – credited to Suero – were still appearing on Getty’s website. Getty responded by removing those photos.
By this time, several customers of AFP and Getty had published Morel’s photos, credited either to Morel or Suero. These included the Washington Post, NYTimes.com, CBS and ABC. Several of the media entities that published his photos without authorization settled with Morel.
AFP sued Morel in March 2010, seeking to prevent him from asserting copyright claims against the agency. He responded by asserting the copyright claims. AFP and Getty then responded to the copyright claims by citing Twitter’s and TwitPic’s terms of service, which state that while copyright owners retain their ownership, by posting to the sites users agree to reuse of the posted material by the sites and other users, which AFP argued included itself.
The court rejected this and other arguments, allowing the case to proceed. In January 2013, the court granted partial summary judgment to Morel on the infringement issue, leaving it to a jury to determine damages. Following a seven-day trial, the jury found that AFP and Getty had intentionally and wilfully infringed on Morel’s copyrights in the photos, and awarded $275,000 in actual damages – 100 times the customary daily rate for photographers – and $150,000 in damages – the statutory limit – for each of the eight photographs at issue in the case, amounting to $1.2 million. Under the law, Morel had to choose either the actual damages or the statutory damages, so he chose the latter.
One juror said that the willful infringement by AFP and Getty was clear.
“They wanted to scoop that (earthquake) story,” juror Janice Baker told Photo District News, “and after they had published the images crediting the wrong guy, they said to themselves, ‘We’ll just try to get permission from the real (photographer) later.’ ”
The jury also found that the defendants had falsified and altered copyright information, which are separate violations of the Digital Millennium Copyright Act, for each of the eight photos – 16 tortious actions in all. But the jury was unclear on the amount it intended to award for these violations, and the matter is now before the court. Morel is seeking the statutory minimum for each violation, $2,500, which would amount to $40,000.
Many photographers celebrated the verdict as a vindication of their right to control use of their works. Morel’s attorneys said the verdict was “the first time (that) these defendants or any other major digital licensor have been found liable for the willful violation of a photojournalist’s copyrights in his own works.”
While the circumstances of the Morel case may be unique, the case points out that journalists cannot simply use material found online without making sure they have permission to use it. Copyright protects material online, as it does everywhere else – and those who ignore this may face major consequences, such as a $1.2 million verdict for infringement.