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Nov 18 2013

Getty’s Woes Over Haitian Earthquake Photos Continue!

I was able to observe the damages trial in the case of Daniel Morel v. Getty Images and Agence France Presse today. I have previously written about this case on this blog: (http://www.courtroomstrategy.com/2013/01/getty-images-l…r-daniel-morel/). Quick summary: 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 about 8 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. A judge has already ruled that the defendants infringed on Mr. Morel’s copyright and this hearing is just to determine the amount of damages to be awarded to him.

copyright logoToday’s testimony came from Eva Hambach, Deputy Photo Director for the Agence France Presse (North America). She did not help the defendants’ cause. Ms. Hambach, under questioning by Morel’s attorney Joseph Baio,admitted that by the next day following the improper use and accreditation of the Morel images,everyone at AFP knew there was problem and she issued a “Mandatory Kill” notice to all AFP partners and subscribers the following day(two days after the infringement). Getty is AFP’s exclusive distributor for the North American region, so they certainly got the “kill notice.” But the kill notice only told clients and partners to kill images credited to Morel, but not the identical images that had been sent out initially under the false credit. Getty allegedly didn’t purge the images with the false credits, and continued to distribute them. Getty even sent an email a few days later back to AFP telling them they had removed “the 24 images” from their database though Morel had only originally tweeted 8 images. Ms. Hambach testified that she was “Curious” as to why they listed 24 images but she did not check the list that Getty included in the email; instead she only randomly checked one or two to confirm they were the Morel Earthquake photos.

Then in March, nearly three months after the infringement, Ms. Hambach was instructed by her superiors to do a Google search for the images and to send requests for removal of the images from any website that was still showing the images. After doing about 12 such emails (including one to the NY Times which only generated an auto-response) she stopped because she realized the images were “all over the place” – on websites, news articles and even on a blog from Iran.

She made no further attempt to seek removal of the images from any sites and instead sent an email on March 16, 2010, in French, that her lawyers had apparently translated as saying:

In any case, AFP is in it now and will have to pay . . .. My futile attempt to scrub the web won’t make much difference to how much we’ll have to pay.

Curiously, that is not how Ms. Hambach had translated it – she testified today that her translation of her email was: “AFP got caught with its hand in the cookie jar and will have to pay . . . ”

Oh boy. This admission is definitely evidence that AFP knew that it should not have used the images without making a cursory check for ownership. Her testimony reveals that these huge photo agencies which proclaim they are better than sliced bread for photographers are in fact incapable sometimes of managing their content. In this digital age, a mistake or an intentional infringement is capable of being replicated countless times so that it is imperative that companies act diligently initially to give proper accreditation and licensing fees to the proper author of the work.

I had a very pleasant conversation with Mr. Morel during a court recess. He is an unassuming, soft spoken gentleman who only wants to be vindicated for what was done to him. Seeing the phalanx of about 7-8 high-paid lawyers at the defense table, I am still not sure why this case is moving forward; some of those white-shoe guys are billing at $1,000 per hour. I suspect the defendants may be pointing fingers at each other once their presentation begins, because from what I read of the case record and what I heard today, Mr. Morel’s case is as clear as one of his award-winning photographs.

7 comments

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  1. Bruce Couch

    I am so looking forward to a great resolution of this issue for Mr. Morel. This could be great news for professional photographers.

  2. Carlos Danger

    I thought AFP settled already and only Getty was left. I guess my memory fails me. Maybe it was WashPo that settled.

    You appear to have a bit of a thing about “white-shoe” lawyers. In any case, looks like either Morel’s original lawyer either doesn’t do trials or Morel had another reason but he changed lawyers and went “white-shoe” himself for the trial. Because he wasn’t using Willkie when this started. Did you ask him why the change in legal team ?

  3. Oscar Michelen

    Morel recently settled with the Washington Post (he had earlier settled with ABC, CNN and some other news outlets) AFP and Getty remain in the case. While I don’t have a thing against “white shoe” lawyers, as one who litigates against them from time to time and who loses out on some clients to them from time to time, I am often amazed at how clients accept the way those firms drive up costs unnecessarily and often don’t see the forests for the trees. They have set up a system for handling cases particularly in commercial matters that has become a norm that few firms can compete in and that is not results-oriented. As for why Morel changed lawyers, who knows? It appears to have been a fee dispute and Wilkie Farr is allegedly doing the case at a significantly reduced rate. The proof of that is that they only have Joseph Baio and one other lawyer at counsel table; if Monsieur Morel could pay retail Wilkie Farr would probably have two more young lawyers up there as well. Baio is doing a good job from what I saw. The verdict could come as early as tomorrow.

  4. Oscar Michelen

    Morel’s lawyer, Joseph Baio is doing a good job from what I saw. The verdict could come as early as tomorrow.

  5. Carlos Danger

    Yes Oscar, Cravath (just arbitrarily picking them as a proxy for “those firms”) doesn’t see the forest for the trees and is not results-oriented. Right. Their bottom line is a result of luck. And I’m quite sure a Mineola based law firm is competing for their client base too.

    Back to reality. I believe Morel won the max statutory damages from what I read. Not sure when/if the Judge will rule on an award of attorney fees which given the “way those firms drive up costs unnecessarily” should be a whopper of an award.

  6. Oscar Michelen

    Whether you like to believe it or not, my firm (which is based in NY but does have a Long Island office) litigates against and besides large firms all the time. And our litigation work – particularly the documents – is as good as any of the top firms in NY. That’s why several of them refer smaller matters or matters where there is a conflict to me and my firm. That’s the reality; your snide and sniping comments to the contrary. It’s also reality that large firms are highly successful. They have the top legal minds in the country, also true – but on certain matters, they cannot change their structure – and often the institutional mentality prevents them from streamlining a matter down to its essentials. It’s like turning a cruise ship. Every case needs to generate a certain amount of billing and has at least one partner and one or two associates assigned to it. Even if the matter is small to them, they will not let an associate (who is billed out at $500 per hour) handle it alone; it will be supervised by a senior associate and a partner which increases the bills. They are the only firms that can handle certain gargantuan matters that require a large number of bodies thrown at it. We’ve had to take on temporary contract lawyers when we get a case like that and its certainly more efficient for my practice to do it that way. Those firms get those matters referred to them on a daily basis so they need the hundreds of lawyers for back-up. Also,corporate counsel at large corporations won’t have their decisions questioned when they place a matter with those type of firms. But my firm is much better-suited to represent small and mid-sized businesses than Wall Street firms are and they will tell you as much.

    Back to the substantive portion of your comment. Morel was indeed awarded max statutory damages. Where a statute provides for legal fees, the Federal Court holds a hearing after the verdict to determine the amount of “reasonable and necessary legal fees.” There are standard rates per hour that are awarded regardless of how much the firm usually or actually billed out at – usually topped out at around $500 per hour in NYC. Also courts are very mindful to avoid paying for double-billing. They also look at what amount of time is spent on particular items and will cut the number of hours down if they feel the time billed is excessive. The court also takes into account the complexity of the matter. All that taken into consideration, we will be looking at a large award,-somewhere around $300,000 would be my guess, but that’s all that is, a guess. And considering I am just a lowly Mineola-based lawyer who can’t play with the big boys, you can take it for what its worth.

  7. Carlos Danger

    I don’t wish to pursue the first paragraph. Maybe I was rude. Cravath etc… don’t need me to defend their skills, staffing or billing practices; they are doing fine. A

    As for Morel, whatever happened to Getty’s DMCA defense ? Remember that one. When was that shot down ?

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