To say that photo warehouse giant Getty Images just got a taste of its own medicine would be an understatement. In a 58-page decision issued on Jan. 14, Southern District on New York Judge Alison Nathan ruled that Getty, Agence France Presse (AFP), and The Washington Post infringed Morel’s copyrights by disseminating photos he took of the 2010 Haitian Earthquake without his permission. More significantly, Nathan rejected the news organizations’ affirmative defense that Morel granted them a license to use the photos by posting them on Twitter.
I have been watching this case from the beginning because I represent over 850 businesses in claims brought against them by Getty Images for alleged infringement of one or two digital images from their massive stock photo library. I have an entire website devoted to the issue of digital image claims called extortionletterinfo.com. In those cases, Getty repeatedly rejects and belittles many of the exact same legal arguments they raised in this case, many of which are not applicable. First let me quickly summarize the Morel claim.
Morel is professional photographer who was able to capture tremendous images from the Haitian Earthquake. A native of Haiti, he was there when the quake struck. But with all lines of communication destroyed in his region, all he could do was post 13 pictures via TwitPic, a service of Twitter. A Twitter user in neighboring Dominican Republic re-tweeted them and they spread over the internet, without any credit being given to Morel, though the Twitter trail could have been followed if anyone was really interested in seeing who originally posted the pictures. Getty then disseminated them to news outlets including the Washington Post without any accreditation or attempt to find the photographer responsible for the breathtaking images. Morel later got credit for his work, winning two World Press Photo awards.
When he contacted AFP about their infringement of his images, AFP filed suit seeking a declaratory judgment that they had not infringed on his copyright, presumably because he had posted them on Twitter. Morel filed a countersuit against AFP and also named Getty and the Post. Morel was represented by Barbara T. Hoffman of the The Hoffman Law Firm and was assisted by Joseph Baio of Wilkie Farr & Gallagher, a prominent NY “white-shoe” firm. A photography collector himself, Baio had followed Morel’s copyright battle and was eager to help. In today’s New York Law Journal Baio said that, while he’s not representing Morel on an entirely pro bono basis, the case is “definitely a labor of love.”
The copyright law governing this case is pretty clear. The person who takes the photo has the copyright and anyone making a commercial use, even a derivative use, of the image is liable for copyright infringement. As Getty has told many of my clients in their strongly-worded, threatening letters demanding $1,200 or more for a single image of a keyboard or cactus, lack of knowledge that an image has copyright attached to is no excuse for infringement. That a third party did the initial infringement is also of no moment in terms of being liable for infringement. We have almost always conceded liability in these “Getty letters” claims and argue on two main points not available to Getty here – that the damages sought far exceed the value of the images where similar images could have been readily acquired for between $5.00 and $20.00 or so and that courts can reduce damages to $200 if they feel that the defendant was an innocent infringers who had no idea he was infringing on copyright when he used the image. Here Getty took one-of-a-kind, iconic images that could not be replicated and as the single largest owners of digital images in the world, how could they argue they were innocent infringers?
The ruling is an important vindication of another point – that merely Tweeting your picture does not allow others to use it for commercial gain. Many folks have recently gone into a panic over the terms of service contained in Facebook and other social media sites that sign over licenses to FB to use (even for commercial gain) the images posted on FB. While that may give FB the right to do so, it does not give any FB follower the right to do so. Same with Twitter’s terms of service, which states that while Twitter may re-transmit what you Tweet “All images are copyright their respective owners.” The judge ruled that these terms of service clearly indicate that Twitter was trying only to benefit itself not any third party users.
The only issue the defendants won on is that Morel and his counsel were trying to hold them responsible for all the million re-tweets of the images after they were posted by Getty Images (Getty by the way labeled them Getty Images when re-posting them). The court held that Getty and the others were only responsible for their own infringement not the ensuing infringement by others. Ironically, in so arguing, the defendants used the famous Limewire case that held that Limewire only owed record labels a single statutory damage award per infringed song, wiping out the recording industry’s bid to seek trillions in damage for the re-use of the infringed songs. Limewire eventually settled for $105 million. One of Morel’s lawyers, Joseph Baio represented Limewire in that matter.
The court in this case set down February 1, 2013 for a court appearance to set a date for an evidentiary hearing on whether the infringement was willful and for a determination of damages. I smell a settlement here (somewhere in the millions) as the defendants will look to cut their losses. Kudos to Ms. Hoffman and Mr. Baio on an excellent and deserving win.