Back in 2010 we first started covering a really bizarre case
involving photographer Daniel Morel, the news agency AFP (Agence France-Presse) and Getty Images. There were multiple levels of insanity involved in the case. First, Morel had taken photos of the aftermath of the big earthquake in Haiti. He'd posted some of those photos to the service TwitPic (which isn't Twitter) and then linked to them via Twitter. A different photographer, Lisandro Suero, copied the images to his own account and tweeted to the world that they were available for licensing. AFP started using those photos, uploaded them to Getty (they have a partnership) and credited them to Suero. Morel, reasonably, wasn't happy about this and sent a nastygram to AFP. And then it started to get bizarre: AFP sued Morel
. And, no, it wasn't just for declaratory judgment. They sued Morel claiming that Morel's claim against them was "commercial defamation." Seriously.
It was pretty clear from the very beginning that AFP screwed up royally, and then compounded the problems by choosing to sue the guy who actually took the photos. AFP then took it even further
, claiming that Twitter's terms of service allows them to use any photo anyone posts to Twitter without getting a license. That's wrong. First, the clause that AFP points to is very clearly
about the person uploading the photo granting a license to Twitter
, not to anyone else to use beyond Twitter. There is no way anyone can read it honestly the way that the AFP's lawyers claim to have read it. Second, the photo was uploaded to TwitPic, so AFP was looking at the wrong terms of service anyway. They eventually realized this and pointed to a similarly misread clause from TwitPic. The court told the AFP that it had clearly misread
the terms of service not once, but twice
. And for reasons that I cannot fathom, rather than working out a settlement, AFP stuck to its guns
, leading to a trial last week.
That last link has some of the details of the procedural screwups that continued to plague the case, including Morel's problematic responses to discovery efforts. However, in the end, there were still eight awards for copyright infringement, which would qualify for statutory damages, and then another potential 16 awards for DMCA violations. Incredibly, the jury awarded the maximum of $1.2 million in statutory damages
($150,000 per infringement), finding that the infringement was willful. On the DMCA violations, the jury also awarded additional damages for the DMCA violations. His lawyers are
apparently claiming that maximum $400,000 there, but other press reports say it's just $20,000
, though that would be below
the $2,500 minimum per 16 violations, so I'm not sure that's right. The lawyer also seems to indicate that attorneys' fees were awarded as well, though the linked article above is very unclear on the details, appearing to mixup the various awards.
Either way, it's pretty clear that AFP and Getty have to pay up big time. As I stated early on, AFP (who is known for its own copyright maximalist tendencies -- including suing Google
for linking to its stories) clearly acted egregiously both in its initial effort and then in the lawsuit itself. Nearly every choice AFP appears to have made here was bad. It shouldn't have used the photos the way it did. It shouldn't have responded the way it did. It shouldn't have argued the ridiculous legal argument it tried. And it never should have let the case continue, rather than figuring out a way to settle. It is, of course, entirely possible that Morel wouldn't settle at a reasonable rate (his actions in the case were... hardly stellar). But, everything about AFP's actions were ridiculous.
That said, $1.2 million? Even though this was commercial use... And even if the infringement was willful... And even if AFP's conduct was and remained egregious throughout this whole ordeal, it seems insane
to argue that $1.2 million is a reasonable award for sharing 8 newsworthy photos. The statutory damages provisions of US copyright law are way out of whack with reality, and this case is just the latest in a long line of examples.