Professional photographer Daniel Morel was in Haiti on January 12, 2010, when devastation struck. At 4:54 p.m. that day, the largest earthquake in the Caribbean in 200 years hit the island ultimately killing over 230,000 people. During the remainder of that day, Morel shot many photos of the destruction and of those wandering through it in a trance-like state. He then uploaded 13 of the photographs to TwitPic, an image-sharing website that links to Twitter, but importantly was legally independent from it. Among its terms and conditions, TwitPic never asked for licenses to distribute the images. In fact, TwitPic stated: “All images uploaded are copyright © their respective owners.” Morel subsequently sent out Twitter posts that included links to the TwitPic photos, but he did not post the photos there nor did he authorize anyone to publish or distribute them.
Due to the sensational nature of the earthquake, a number of news organizations opened the links and copied and distributed Morel’s photographs as part of their news reports on the earthquake. One of the copiers, Agence France Presse (AFP), was under a 2003 distribution deal with Getty Images allowing Getty to license the images for $195 each. An editor at AFP discovered Morel’s photos through a Twitter account and provided them to Getty. The photos were then widely disseminated to Getty’s clients, including several television networks and the Washington Post. AFP and Getty had licensed 8 of the photos hundreds of times and collected between $15,000 and $30,000 in revenues. AFP and Getty had even attributed the photos to a different photographer.
Through his lawyer, Morel expressed his displeasure with the various news outlets that had made use of his images. He asked them to remove the images asserting that they had no right to copy or distribute them and that they had infringed his copyrights in the photos. In response, on March 26, 2010, AFP filed suit against Morel in the U.S. District Court, Southern District of New York, and sought a declaration of non-infringement of Morel’s copyrights in the photos. AFP asserted that Morel had granted any third-party a non-exclusive license to use the images by posting them on Twitter and that as a result of the terms and conditions under TwitPic, Morel granted a worldwide, non-exclusive, royalty-free license, with the right to sub-license others, to use, copy, publish, display and distribute those photographs. AFP added that “when Mr. Morel posted his photographs on Twitter, he made no notation that he was in any way limiting the license granted to Twitter or third parties.” AFP further accused Morel of engaging in “commercial defamation.” Morel counterclaimed asserting that AFP, Getty and the Washington Post infringed his copyrights.
Several of the news outlets that published Morel’s images had settled with Morel for undisclosed amounts, including CBS, ABC and CNN. In the court proceedings, U.S. District Court Judge Alison Nathan was unpersuaded by AFP’s arguments. In January 2013, she ruled that AFP and the Washington Post were not operating under any license from Morel and were liable for copyright infringement of Morel’s photos. [Summary Judgment Order here.] Thereafter, it was conclusively established that Getty too was an infringer. The Washington Post settled in September of 2013. AFP and Getty, however, doggedly decided to take their chances at trial. Infringement having been established, the remaining issues went before a jury to decide whether AFP’s and Getty’s acts of infringement were willful and to determine the amount of damages against them. After a week-long trial, on November 22, 2013, the jury decided the infringements were indeed willful and awarded Morel maximum statutory damages of 1.22 million dollars. [Amended Judgment here.]
For many years, Getty Images has issued cease and desist letters threatening others for copying photos acquired over the internet. Being hit here with an actual judgment for the same acts Getty has repeatedly condemned, should have caused the company to figuratively look down to find its pants around its ankles. Indeed, in this case, the worm turned.