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.
Today’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.