A Win for Photographers: Developments in AFP v. Morel

On 12 January 2010, Haiti was struck by a severe earthquake, and photographer, Daniel Morel, was there capturing the devastation with his camera.  Later that day, Morel posted his images on Twitter.  The images were then shared (or more aptly--retweeted--by other users), and at least one user falsely claimed ownership of Morel’s images.  The Director of Photography for North and South America at Agence France Presse (AFP) located Morel’s photos on Twitter on another user’s account and then sent them into AFP’s system for captioning and distribution on AFP’s newswire.  Once in AFP’s system the images also became part of Getty Images’ library, through its reciprocal license with AFP.  When Getty first received the images they were improperly credited to another Twitter user.  Eventually, the error was corrected and the images were properly attributed to Morel.  The images were picked up by several publications, including the Washington Post.  Morel’s counsel as well as counsel for Corbis, another image licensing company that had an exclusivity agreement with Morel, contacted the organizations regarding use of Morel’s images.  Although the photos were eventually removed from AFP’s database as well as Getty’s due to copyright issues, infringing images remained on the Washington Post’s website.

On March 26, 2010, AFP sued Morel in U.S. District Court for the Southern District of New York for a declaratory judgment stating that it had not infringed on Morel’s copyrights and alleging commercial defamation.  In response, Morel filed counterclaims against AFP, Getty, and the Washington Post for copyright infringement and violation of the Digital Millennium Copyright Act (DMCA).  This month, the court addressed the parties’ competing summary judgment motions, conclusively ruling on some issues presented by the case.

With respect to Morel’s claim for direct liability for copyright infringement, AFP argued that the Twitter user license (which applied to the images when they were first posted by Morel), allowed AFP to use and license the images.  After evaluating Twitter’s terms of service, the court disagreed, finding that the user agreement provided a limited license, but did not give permission for AFP to engage in the conduct at issue.  As the court provided, “Indeed, this is the fatal flaw in AFP's argument: it fails to recognize that even if some re-uses of content posted on Twitter may be permissible, this does not necessarily require a general license to use this content as AFP has.” 

Getty also asserted an affirmative defense under the DMCA, arguing that it was not liable for infringement because it qualified for the safe-harbor provision of the law, which was intended to protect service providers from liability for copyright infringement when unwittingly hosting infringing materials or engaging in certain other passive activities.  The court declined to find on summary judgment that Getty qualified for the safe harbor, noting that a jury could infer that Getty took affirmative acts to distribute the Morel’s photos, such as entering a license agreement with AFP, actively licensing the photos, and setting a price for the photos.

Morel also sought elevated statutory damages from AFP, Getty, and the Washington Post, asserting that each party had acted willfully in infringing on his copyrights.  The court declined to rule on this issue as well, leaving it for a jury to determine whether the conduct at issue was willful.

Ultimately, the court granted Morel’s motion for summary judgment that AFP and the Washington Post were liable for copyright infringement, but rejected Morel’s arguments regarding the scope of statutory damages available under the Copyright Act and the DMCA.  The court otherwise denied the parties’ cross-motions for summary judgment.  The case, which has been in litigation since 2010, is scheduled to go to trial on the remaining issues with all trial materials due to the court in late March.