Willkie Preserves Copyright Win for Haitian Photographer

Willkie Preserves Copyright Win for Haitian Photographer Rick Kopstein U.S. District Judge Alison Nathan

A judge refused Wednesday to set aside a jury’s verdict that Agence France-Presse and Getty Images (US) Inc. must pay $1.22 million for willfully infringing photojournalist Daniel Morel’s award-winning images of the 2010 earthquake in Haiti. The ruling is the latest in a string of victories for Morel’s lead trial lawyer, Joseph Baio of Willkie Farr & Gallagher, who may soon be financially rewarded for a case he’s called a labor of love.

In a 30-page decision, U.S. District Judge Alison Nathan in Manhattan denied AFP and Getty’s request that she set aside the jury’s willfulness finding, which was the backbone of the damages award. The judge also left intact much of the jury determination that the media companies should pay a combined $20,000 for undermining the integrity of “copyright management information” in violation of the Digital Millennium Copyright Act.

Morel, who lives in Haiti, snapped some of the earliest and most compelling photographs of the devastating earthquake. With the help of a friend, he uploaded the photos to TwitPic, a service that allows Twitter users to put images on the micro-blogging service. Lisandro Suero, a Twitter user in the Dominican Republic, reposted the photos without Morel’s consent.

Crediting the photos to Suero, an AFP editor uploaded eight of the photos to the AFP and Getty image wires (the two agencies are distribution partners). The images were picked up by major media outlets, including CNN and The Washington Post. AFP corrected the photo credits but didn’t promptly remove the photos from its websites. After AFP notified Getty of the mistake, it took Getty two-and-a-half weeks to remove them from its websites.

In 2010 AFP sought a declaratory judgment in U.S. district court in Manhattan that it didn’t infringe Morel’s copyrights. Morel hired Manhattan solo practitioner Barbara Hoffman and counterclaimed for infringement, eventually roping Getty, CNN, The Washington Post and other media outlets into the case.

As the case moved toward a November 2013 trial date, Morel secured settlements with all the defendants except AFP and Getty. The photographer also won a key ruling that under Twitter’s terms of use, he didn’t give news organizations an implied license to the photos by uploading them to TwitPic.

It fell to Willkie’s Baio to make Morel’s case to the jury. After a weeklong trial before Nathan, jurors found that AFP and Getty engaged in willful infringement and awarded Morel $1.2 million in statutory damages—the maximum allowable under the Copyright Act.

The jury also found that AFP and Getty were each liable for 16 violations of seldom-invoked provisions of the DMCA that prohibit falsifying and altering copyright management information. Jurors awarded Morel $20,000 for those violations, which he could collect in full from either defendant.

AFP and Getty—which are represented by Venable and Davis Wright Tremaine, respectively—sought to undo the verdict in posttrial motions. With respect to willfulness, AFP pointed to testimony from the employee who uploaded the photos that he believed he had the right to do so. Getty, for its part, argued that its delay in removing the infringing content was due in part to unclear language in the “kill notice” it got from AFP.

Nathan wasn’t persuaded by any of those arguments. There was evidence from which jurors could reasonably find that AFP harbored doubts about its right to use the photographs, the judge wrote. She also wrote that “the alleged shortcomings of the kill notice do not preclude willfulness as a matter of law; they at most raised an additional factual issue for the jury.”

Getty came off a bit better in Nathan’s ruling. She wrote that the evidence of Getty’s willfulness was thinner than than the evidence against AFP. The judge also granted Getty judgment on eight of the 16 DMCA violations for which it was found liable, ruling that it didn’t alter Morel’s copyright information. That aspect of the ruling doesn’t affect Morel’s recovery.

The Copyright Act entitles prevailing parties to seek attorney fees. Under Nathan’s timetable, Baio and Hoffman now have two weeks to submit a request. Baio has said that he’s received little payment for his work on the case, as we reported when we named him Litigator of the Week for Morel’s trial victory.

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