DAY 8: Morel vs. AFP/Getty Images, Friday Nov 22nd, 2013

Agence France Presse and Getty Images have been found liable for willful copyright infringement of the 2010 Haiti earthquake photos of freelance photojournalist Daniel Morel.

The end came for AFP and Getty shortly after 1pm Friday, when the jury passed their verdict to Judge Alison Nathan in Room 506 of the Thurgood Marshall US Federal Court in downtown Manhattan.

The winning team in the willful copyright infringement case between photojournalist Daniel Morel and AFP and Getty Images. (L-R) Attorney Joseph Baio, Daniel Morel, photographer Phyllis Galembo and attorney Emma James. © Jeremy Nicholl

Judge Nathan unfolded the verdict, read through it, appeared to hesitate for a moment; then she began to recite aloud. Gasps were audible in the courtroom as she announced the verdict: the jury had not only found the agencies liable for willful copyright infringement, but chose to express their anger by awarding Morel the maximum possible damages, a total of $1.2 million for the eight images in question. The jury also found against the agencies for multiple violations under the Digital Millennium Copyright Act: specifically for altering Copyright Management Information and for adding false and misleading CMI. For this they awarded Morel a further $20,000.

As Morel turned to hug his lawyers and supporters the defense teams appeared stunned by the verdict. Both AFP and Getty had fielded a team of four attorneys each, with the French team supplemented by three lawyers from Paris headed by AFP Chief Legal Officer Christophe Walter-Petit. One French lawyer appeared close to tears as the enormity of the verdict sank in. The result is an unprecedented catastrophe for the two agencies. It is believed that this is the first time either defendant or any other major digital licensor has been found liable for the willful violation of a photojournalist’s copyrights in his own works.

Speaking afterwards Morel expressed his hopes that no other photojournalist who puts himself or herself in harm’s way will have to suffer through the same three and a half year ordeal that he experienced at the hands of AFP and Getty. Flanked by his attorneys Joseph Baio and Emma James, the Haitian-born photographer said: ”They thought they could crush this guy from Haiti: they were wrong.”

“They say Coney Island is nice in November.” Agence France Presse lawyer Joshua Kaufman [right] cancels his weekend in Paris while a colleage reads EPUK News outside the Thurgood Marshall US Courthouse after losing their willful copyright infringement case against photojournalist Daniel Morel. © Jeremy Nicholl

When the jury found the agencies jointly liable for willful copyright infringement they also had to decide appropriate damages within a fixed, but broad, range. They could have chosen to award Morel as little as $650 per image, and it was a measure of the jury’s anger that they opted instead to award the legal maximum of $150,000 per image. Explaining this decision several Morel jury members said they were “outraged” by the behavior of AFP and Getty: “We couldn’t believe what they did.”

There was considerable finger pointing throughout the trial, as AFP and Getty attempted to blame one another for the infringements. This will undoubtedly reach new heights behind the scenes as the legal bills come due. It is understood that Getty’s terms for suppliers include an indemnity clause in which suppliers, in this case AFP, agree to be held liable for costs in any case such as the Morel fiasco. If that is so AFP may have to foot the entire bill, which is conservatively estimated at around $9m.

The words of editor Eva Hambach, herself a defense witness, and the only person at AFP who in 2010 appeared to grasp the danger the agency had placed itself in, now appear eerily prophetic: ”AFP got caught with a hand in the cookie jar, and will have to pay.”

PDF Download: Daniel Morel v Agence France Presse and Getty Images Trial transcripts Day 1 to Day 3 - This PDF is from the live court feed. Any errors in the text or printing of pages remain uncorrected.

DAY 7: Morel vs. AFP/Getty Images, Thursday Nov 21st, 2013

“It seems like Agence France Presse and Getty Images want an apology from Mr Morel! That’s what it sounds like. After all they simply did what they do. And they’re the friends of photographers: ’We’re a charity,’ say AFP, ‘with a foundation.’ And poor Getty Images, they didn’t know what to do, or who to deal with, if it should be Morel, or Corbis, or Barbara Hoffman or whoever. How…unbelievable.”

Joseph Baio, attorney for photojournalist Daniel Morel in his copyright infringement trial against AFP and Getty, was just getting warmed up. It was the seventh day of the trial, and devoted to counsels’ closing arguments; after Baio the jury retired to consider their verdict, which is now expected some time today.

Daniel Morel’s images of the devastating earthquake in Haiti in 2010 were distributed to the world’s media by Getty Images and AFP in breach of Morel’s copyright. Photos © Daniel Morel

First was AFP lead counsel Joseph Kaufman. He went for a big entrance, opening by quoting “the great British statesman Winston Churchill”, but quickly lapsed into reminiscences about the AFP Foundation and its charitable work with journalists in developing countries. This was the third time the AFP defense had wheeled this out during the trial, and by now it was sounding distinctly threadbare. But to be fair to Kaufman he had by far the weakest material to work with: anything that would provide good spin was worth a try.

Next was Marcia Paul, who stuck closely to the script the Getty defense have developed throughout the trial. Yes, the jury had to award damages, but they should be kept small because the fees Getty charged when licensing Morel’s photographs were also small. Most photographers would find this a distinctly odd argument coming from a thousand dollar an hour lawyer, but within the context of Getty’s defense it did make sense.

Paul then, as expected, went on to push any blame for the infringements as far away as possible from Getty. It was Lisandro Suero who had “stolen Mr Morel’s moment”, not Getty. This was then AFP content, and Getty rely on their partners to supply material with accurate captions and permissions to use.

Morel’s agent Corbis had failed to provide the necessary information to prevent continuing distribution. And anyway, “these dominos were falling as a result of the original domino falling – Mr Morel’s posting of his images on TwitPic.” So there it was: the whole mess was Morel’s fault.

But the day belonged to Baio. Beginning his 80 minute speech by openly mocking the AFP defense, he suddenly darkened and turned on Getty: “They actually take a $275 day rate and try to use that as a benchmark for damages. It’s insulting.”

Kaufman and Paul, insisted Baio, hadn’t shown the testimony, merely talked the jury through their versions of it. “Well I’m going to show the real testimony,” promised Baio looking toward the jury, “And you’re going to be the judge.”

For the best part of the next hour Baio did just that. Picking through the previous week’s evidence and testimony, he highlighted discrepancies and contradictions in witness statements. He produced invoices showing that Getty had licensed Morel images for over $1,400 rather than only the lower amounts quoted by the defense. He quoted Getty’s terms of a five times multiple for copyright infringement. He invited the jury to wonder at defense claims that while AFP staff had only seen the images on the Lisandro Suero TwitPic account, their Getty partners had only seen them on Daniel Morel’s TwitPic account. Going through AFP’s guidelines that stressed the importance of confirming the veracity of sources, he sneered: “Vincent Amalvy didn’t know Lisandro Suero from Joe Blow.”

With so much material to play with Baio looked set to make a day of it. At 70 minutes Judge Alison Nathan interrupted to enquire: “Will we be much longer Mr Baio?” “Almost done,” came the reply.

Summing up almost reluctantly, Baio turned to defense comments made earlier that rejected Morel’s claims of deliberate, willful copyright infringement. “They asked: ‘Why would we do this? We love photographers.’ I’ll tell you why: they did it because they could. They did it because they’re AFP and Getty. They thought: ‘We can put these pictures out and buy this guy off.’ They did it because that’s the way they are.”

A verdict is expected today in the afternoon.

PDF Download: Daniel Morel v Agence France Presse and Getty Images Trial transcripts Day 1 to Day 3 - This PDF is from the live court feed. Any errors in the text or printing of pages remain uncorrected.

DAY 6: Morel vs. AFP/Getty Images, Wednesday Nov 20th, 2013

The Daniel Morel vs Agence France Presse and Getty Images copyright infringement trial looks set to go to the wire. Sometime this afternoon, on the seventh day of the trial, the eight person jury is expected to return a verdict on whether either or both of the agencies are guilty of willful copyright infringement. A guilty verdict would carry with it damages to Morel of up to $1.6 million, plus further millions in legal costs to the defense. Perhaps more importantly it would be a severe blow to the guilty parties’ reputations. Even if the agencies are found not guilty the jury will award some damages to Morel.

AFP and Getty were in January found guilty of simple copyright infringement of Morel’s 2010 Haiti earthquake images, and it is part of the jury’s job to award damages for that: such damages would however be much lower.

Daniel Morel (5th from left) outside the Thurgood Marshall US Courthouse with students from the Pratt Institute in Brooklyn with their photography teacher Anne Turyn. The students and tutor were visiting the trial of AFP and Getty Images for willful copyright infringement of Morel’s 2010 Haiti earthquake images. © Jeremy Nicholl

The morning will be taken up by closing arguments by the respective lead counsels: Joseph Baio for Morel, Joshua Kaufman for AFP, and Marcia Paul for Getty. The arguments to be presented by the attorneys are by now very clear. Baio will argue that the six days of witness testimonies prove that both AFP and Getty willfully infringed the eight images in question, both by initially acquiring and distributing the images, and by failing to cease distributing them despite repeatedly being asked to do so. He will use Getty’s own terms and conditions regarding infringement against the company to counter suggestions that the low editorial prices they licensed Morel’s images for mean that any damages awarded should also be low.

Marcia Paul for Getty will throw agency partners and co-defendants AFP under the bus. She will argue that Getty played no part in the initial image heist and that her client’s automated systems rely on AFP to supply material that is both legally sourced and accurately captioned. She will further argue that AFP had the ability to remove the Morel images from Getty’s systems, but failed to do so, and that misleading caption information from AFP made it impossible for Getty to stop distribution. When she’s through with AFP she will blame Morel’s agent Corbis for supplying insufficient information to enable Getty to cease distribution. In an attempt to limit damages she is likely to repeat her claim to the jury that Morel “is asking you to make him the best paid news photographer ever.”

AFP’s Kaufman has by far the hardest task since none of the three AFP witnesses have helped the agency’s case. The eight hour examination of key witness Vincent Amalvy, the editor who acquired and uploaded the images to the AFP system, was a train wreck for the defense. Evidence from Amalvy’s deputy Eva Hambach simply confirmed all the bad news her boss presented. On day six Kaufman introduced Ben Fathers, AFP Photo Desk Chief for Europe and Africa, in a late attempt to discredit some of Morel’s testimony. But this backfired badly when it led to the revelation that Fathers, who had promised Corbis that he would deliver equipment to Morel in Haiti, spent two weeks in Port au Prince without doing so even though he knew where Morel was located.

The jury’s decision must be unanimous, and they will be asked to decide firstly whether the agencies are guilty of willful infringement under the US Copyright Act of eight Morel images. If so they can award damages of up to $150,000 per image. They will also be asked to decide if the agencies are guilty of two infractions of the Digital Millennium Copyright Act on each of the eight images, a total of sixteen offenses under the DMCA. If so they can award damages of up to $25,000 per infraction.

The trial continues on Thursday with closing arguments; a verdict is expected in the afternoon.

PDF Download: Daniel Morel v Agence France Presse and Getty Images Trial transcripts Day 1 to Day 3 - This PDF is from the live court feed. Any errors in the text or printing of pages remain uncorrected.

DAY 5: Morel vs. AFP/Getty Images, Tuesday Nov 19th, 2013

Day five of the Daniel Morel vs Agence France Presse and Getty Images copyright infringement trial featured a minor medical miracle. The previous afternoon Francisco “Pancho” Bernasconi, Senior Director of Photography News and Sports at Getty Images, was struck down with a mysterious case of amnesia while being cross examined by Morel’s attorney Joseph Baio. Try as he might Bernasconi was unable to recall almost any involvement in, or even awareness of, the Morel photos in January 2010.

Happily Bernasconi managed a full recovery overnight: when faced with his own attorney Marcia Paul he displayed impressively clear recall of the very events that had caused him such difficulty the previous day. So loquacious was the newly recovered Bernasconi that at one point Judge Nathan even intervened to ask him to speak more slowly. However Bernasconi’s recovery did not escape Baio’s attention. “How do you know that Getty had their own photos from Haiti?” he demanded. “You say you saw them on the Getty website on January 13th 2010, but yesterday you couldn’t recall being on the Getty website on January 13th 2010.”

Getty’s defence strategy has essentially three strands. The first is to blame their partners AFP for the original infringements as suppliers, and to further blame AFP for any delay in killing image distribution. The second is to blame Morel’s agency Corbis for causing a delay in killing image distribution by not providing sufficient information on the ongoing infringements. And the third is to head off any large award by the jury to Morel by illustrating that images from the Haiti disaster were licensed for relatively low editorial fees. These were in stark contrast to the evidence produce by the Morel team of Getty revenues in 2010: over $61 million in subscription fees alone.

The day was largely devoted to Getty. In addition to Bernasconi, Getty Senior Paralegal Heather Cameron and North American Senior Sales Director Katherine Calhoun were both in the witness box. Unlike AFP’s defence, which has been largely invisible throughout the trial, the Getty defence was robust, comprehensive and impressively well researched. Reams of emails between Getty, AFP and Corbis, as well as internal Getty emails, were produced. Spreadsheets were projected showing sales of images by Morel and other photographers and revenue generated. Captions, corrections and image kill notices were presented to the jury.

At one point Getty lead attorney Marcia Paul projected 17 licensing invoices from the Haiti earthquake, all for sales of between $49 and $275. One of the $275 sales was for one of Morel’s images; Baio seized on it. “That is the same as the day rate, correct?” he asked. “Yes,” replied Bernasconi. “And you sold this image again and again and again,” responded Baio.

The day began and ended with procedural wrangles among the lawyers. The previous evening AFP attorney Joshua Kaufman made the surprising suggestion that he might need to recall editor Vincent Amalvy from Paris for further testimony. By morning however Kaufman decided that “having weighed all the matters” a recall would not be necessary. Whether he was influenced in this decision by Amalvy’s previous dismal performance in the witness box is unknown.

The trial continues on Wednesday; closing arguments are expected Thursday.

PDF Download: Daniel Morel v Agence France Presse and Getty Images Trial transcripts Day 1 to Day 3 - This PDF is from the live court feed. Any errors in the text or printing of pages remain uncorrected.

DAY 4: Morel vs. AFP/Getty Images – Monday Nov 18th, 2013

Day four of the Daniel Morel vs Agence France Presse and Getty Images copyright infringement trial revealed a new defence strategy: total memory loss.

The day began with protracted legal wrangles between Morel’s attorneys and those of AFP and Getty. AFP objected to potential new evidence from the Morel team, claiming that its admission would force them to recall AFP editor Vincent Amalvy from Paris for further testimony. Meanwhile it quickly became clear that the Getty defence team plan far stiffer resistance to the onslaught of Morel attorney Joseph Baio than the AFP attorneys have so far managed.

The first witness was Eva Hambach, Amalvy’s deputy at the time he downloaded and redistributed the Morel Haiti earthquake pictures in January 2010. Hambach has been by far the most relaxed defence witness to date, possibly because she is the only defence witness unlikely to be incriminated by any of the evidence. She was on vacation when AFP first acquired and distributed the Morel images. On her return it was Hambach that insisted the images should be killed to comply with US copyright law. Later it was she who explained the impossibility of clearing the web of infringing images, and suggested that AFP’s lawyers negotiate a settlement.

Next was Andreas Gebhard, Getty Images Manager, Global Picture Desk, and the first Getty witness. Gebhard closely followed the defence being developed by his agency: shoving as much blame as possible for the infringements onto their partners at AFP.

It was Francisco “Pancho” Bernasconi, Senior Director of Photography News and Sports at Getty Images, who revealed his agency’s new amnesia strategy when he finally took the stand in mid-afternoon. Bernasconi began by professing a surprising level of disinterest in both the images his agency was distributing from Haiti at the time of the earthquake, and those produced by Getty rivals. He repeatedly insisted that so far as Haiti was concerned he was only interested in how to help his own photographers work. But it was when Baio’s questions became more specific that Bernasconi was hit by an apparent wave of amnesia.

Whatever the subject – emails he had received, emails he had sent, rival images from Haiti, even his own AFP partner’s images from Haiti – Bernasconi’s responses resembled nothing so much as a jazz musician riffing endless variations on a theme. “I have no recollection.” “I don’t know.” “I have no memory of that sir.” I don’t remember receiving a kill notice.” “I assume I did but I don’t remember.” “I don’t recall being troubled.”

One of the photographs by Daniel Morel that were distributed by Getty Images and AFP in breach of Morel’s copyright.
© Daniel Morel

Surely, Baio suggested, indicating the most famous of the Morel images, Bernasconi must recall having seen it on the night of January 12th 2010? After all, Getty were distributing it. Bernasconi looked blank. “The 13th?” prodded Baio. Bernasconi shook his head. “How about all of January?” offered Baio helpfully.

Bernasconi furrowed his brow. He thought hard. He scoured his memory. Suddenly his face brightened: “I remember seeing it at World Press Photo.”

The trial continues on Tuesday with Pancho Bernasconi in the witness stand. If he can remember where the courthouse is.

PDF Download: Daniel Morel v Agence France Presse and Getty Images Trial transcripts Day 1 to Day 3 - This PDF is from the live court feed. Any errors in the text or printing of pages remain uncorrected.

DAY 3: Morel vs. AFP/Getty Images – Friday Nov 15th, 2013

“Your Honor he is fighting me tooth and nail. So I ask that I can treat him as a hostile witness. I’m asking very simple questions.” Daniel Morel’s attorney Joseph Baio was speaking to Judge Alison Nathan on the third day of the trial of Agence France Presse and Getty Images for wilful copyright infringement of Morel’s photographs of the 2010 Haitian earthquake. Baio was halfway through an eight hour grilling of AFP editor Vincent Amalvy, the man who downloaded Morel’s images from TwitPic and distributed them through the news agency’s network.

After a catastrophic performance in the witness stand the previous day, Amalvy had clearly been briefed overnight to stonewall Baio’s cross examination as much as possible. But the tactic had little effect on the barrage of questions as the attorney picked his way through the evidence: Baio was simply relentless. And if Amalvy refused to answer Baio appealed to the judge for help. “Mr. Amalvy,” Judge Nathan directed, “You do have to directly answer the questions that are posed of you.”

The answers, when they finally came, were all bad for Amalvy and his employers. Had it occurred to the editor of 20 years experience that the quality and nature of the Morel images might indicate they were by a professional photographer? Apparently not. Were the images withdrawn from sale when it was quickly learned that they were stolen? No: AFP simply changed the credit from Suero to Morel. Did AFP contact their clients to warn them they were publishing stolen images with a false byline? Of course not, they were too busy. When AFP tried to contact Morel to make a deal did they mention that they’d already published his work under a false byline? Take a wild guess.

Accompanied by a stream of evidence projected onto a large screen above the stony-faced defence team, the interrogation led to a March 2010 email exchange between Amalvy and his assistant Eva Hambach, in which she said it was impossible to clear the web of the stolen images and suggested that AFP’s lawyers negotiate a settlement. Amalvy’s reply: “I agree…except that we’re dealing with a crook and we need to show that this guy put high res on the web for that reason. Plus Corbis is in the same mess as we are, so we should organize a common front. Okay…you can go back to sleep now!”

One of the photographs by Daniel Morel that were distributed by Getty Images and AFP in breach of Morel’s copyright.
© Daniel Morel

AFP attorney Joshua Kaufman tried bravely to salvage something from the wreckage. His attempts mostly comprised a series of email exchanges between Corbis and AFP editors including Amalvy, in which Corbis sought assistance for Morel, and AFP appeared eager to help. The point was to show that even after receiving letters from Corbis’ legal department concerning AFP’s infringement of Morel’s work, AFP would go out of their way to help a rival photographer still working in the Haitian disaster zone.

But Baio had saved the worst for last. Returning to the lectern he turned to Amalvy: “Let’s talk about the help that you wanted to make available to Mr. Morel in Haiti. The AFP people in Haiti were staying in a hotel, is that right?”
Amalvy: “Yes, several hotels, including the hotel of Mr. Morel.”
Baio: “Do you know that Mr. Morel actually went to the hotel room of the AFP people?”
Amalvy: “I wasn’t sure about that but I was hoping that Daniel Morel would be in touch with the 15 people on special assignments in Haiti at that time.”
Baio: “Did anyone tell you that when Mr. Morel went to meet with the AFP people, they turned him away?”
Amalvy appeared to be in shock: “I can’t believe they did that.”
Baio: “No one ever told you they did that?”
Amalvy: “Absolutely nobody.”

The trial continues on Monday with editors from AFP and Getty Images in the witness stand.

PDF Download: Daniel Morel v Agence France Presse and Getty Images Trial transcripts Day 1 to Day 3 - This PDF is from the live court feed. Any errors in the text or printing of pages remain uncorrected.

DAY 2: Morel vs. AFP/Getty Images – Thursday Nov 14th, 2013

The Morel vs Agence France Presse & Getty trial finally caught fire yesterday with the cross-examination of the two key witnesses: Haitian photojournalist Daniel Morel and AFP editor Vincent Amalvy.

Morel was up first: speaking softly through a Creole translator, and accompanied by a slide show of 15 images, he led the jury through the streets of Port au Prince during the earthquake and the hours following when he uploaded the images that were stolen by Lisandro Suero in the Dominican Republic, and subsequently distributed by Amalvy through AFP and Getty. “I really didn’t know what was happening. There was a sound like a bulldozer flattening everything in its path; at the same time the ground was moving up and down like ocean waves. And people were panicking: it was if the whole country was screaming: ‘Jesus, Jesus, Jesus.’”


© Daniel Morel

Two of the photographs by Daniel Morel that were distributed by Getty Images and AFP in breach of Morel’s copyright.
© Daniel Morel

Prompted by his attorney Joseph Baio, Morel explained his reasons for uploading un-watermarked high resolution images to TwitPic: with limited electricity available from a hotel battery Morel feared communications would be permanently cut off at any moment. “I never thought AFP would steal my pictures,” he concluded. “I thought they were professionals. It was as if I got stabbed in the heart because Suero and AFP stole this moment.”

This was followed by two extraordinarily ineffective cross-examinations of Morel, first by AFP attorney Joseph Kaufman, then by Getty attorney Marcia Paul. Kaufman began by attempting to trip Morel up in his testimony. When that failed he began wandering in circles, at one point bemoaning the technical quality of the evidence provide by Twitter. Eventually he found himself stuck in a cul-de-sac of repetitive questioning, as he tried to get Morel to admit the importance of AFP correcting the misleading Suero caption. Morel finally retorted: “AFP was supposed to delete the pictures, then contact me and ask for permission. They stole a very important moment of my life: how can they correct that?”

Joseph Baio’s afternoon cross-examination of Amalvy could not have been more different. The bespectacled, greying Baio cuts an avuncular figure with a rather professorial air: he could be your favorite uncle. This led some Morel supporters in the public benches to underestimate him. “He’s not very demonstrative,” said one. “He needs to be more aggressive,” said another.

The act presumably had the same disarming effect on Amalvy. For the first half hour or so Morel’s attorney and the AFP editor discussed Amalvy’s working history with the aid of a French translator, and to the casual observer this didn’t appear to be going anywhere. “Let’s get to the night of the earthquake,” invited Baio.

Suddenly it became clear that Baio had been gently leading Amalvy along a path into a walled garden before quietly locking the gate while no-one was looking. He then produced a knife and began to shred Amalvy and his testimony.

Realising the nature of the trap he was in, Amalvy became visibly agitated as he attempted to justify his actions, both on the day of the earthquake, and over the months and years since. Questioned on why he had ignored AFP’s guidelines on the use of material found on social networks, Amalvy said he was focused on the scale of the Haitian catastrophe. Pressed on his claims that he had only ever seen Morel’s stolen images at Suero’s TwitPic account, but had seen none of Suero’s linked tweets, Amalvy pled unfamiliarity with the technology.

“Is that your testimony? queried Baio at one point, eyebrows raised incredulously.

When Amalvy claimed his knowledge of Haiti enabled him to confirm the authenticity of the images, Baio reminded the editor that he had transmitted an image of a Chinese earthquake mis-captioned as the Haiti disaster. “Did you apologise for that mistake?’ asked Baio. “Yes,” replied Amalvy. “And did you ever apologise to Mr Morel?” continued Baio. “I mean, over the three and three quarter years to yesterday, did you ever apologise?”

Gradually Amalvy lapsed into a series of monosyllabic responses as the accusations mounted. So minimal became his replies that Judge Nathan twice had to remind the translator to translate “Oui” and “Non” for the benefit of the jury.

The trial continues on Friday with Vincent Amalvy in the witness stand.

DAY 1: Morel vs. AFP/Getty Images – Wednesday Nov 13th, 2013

The latest and most anticipated round in the legal battle between photojournalist Daniel Morel and Agence France Presse and Getty Images over their infringement of his iconic 2010 Haiti earthquake photographs has begun. Yesterday at the Thurgood Marshall US Courthouse in New York a jury was sworn in to decide whether the two agencies are guilty of wilful copyright infringement, and what damages they will face. Since AFP and Getty have already been found guilty of plain copyright infringement the jury has to award some damages: the size of the award will hinge on whether the infringement of eight of Morel’s images is found to have been wilful.

Photojournalist Daniel Morel outside the Thurgood Marshall US Courthouse on the first day of trial of AFP and Getty Images for wilful copyright infringement of Morel’s 2010 Haiti earthquake images. © Jeremy Nicholl 2013.

But despite a no-nonsense approach from Judge Alison Nathan in which she promised to “keep the trains running on time” the defense appeared headed for derailment as the AFP and Getty legal teams shunted off in different directions.

One of the oddities of the trial is that the jury are not allowed to know that legal proceedings began with AFP’s attempt to sue Morel for defending his own copyright. In a pretrial conference AFP lead attorney Joshua Kaufman argued that such knowledge could unfairly prejudice the jury against AFP since they might conclude that the agency is a bully, and Judge Nathan agreed.

That agreement now appears under threat after Getty attorney Marcia Paul overplayed her hand in her opening address. To the apparent surprise of the AFP legal team Paul spent much of her address attempting to shift any responsibility Getty might have for the Morel infringements onto AFP. Explaining that Getty had trained AFP editors to be able to alter and remove errors in the Getty image database, she stressed: “Getty Images relied on AFP to get the captions right”.

Turning her fire on Morel, Paul told the jury: “He’s asking you to make him the best paid news photographer ever.” Then, in a bizarre interlude, she concluded that the damages Getty face are comparable to being found guilty of counterfeiting.

This was too much for Morel attorney Joseph Baio. When the jury left for the day and Judge Nathan asked if the were any issues to be considered Baio leaped to his feet. “The jury is under a whole bunch of misapprehension,” began Baio, accusing Paul of misinforming the jury. Stating the obvious, he went on to explain that copyright infringement is not counterfeiting: “I don’t know where that came from.”

Arguing that Paul had gone out of her way to make Morel appear the unreasonable party, Baio suggested that the only way to restore balance would be to inform the jury of the true genesis of the proceedings. Watching his pre-trial deal start to crumble, a visibly upset Kaufman was left to object that it would be unfair for AFP to be punished for the behavior of the Getty legal team.

During his own opening address Kaufman had been at pains to paint AFP as unwitting victims, even though both agencies have already been found guilty of infringing Morel’s copyright in an earlier trial. AFP had been “duped” by “the crook Lisandro Suero” when they had distributed Morel’s images under the Suero name. At times Kaufman, standing under an AFP projection that boasted “No Profits, No Shareholders, No Investors, No Dividends” appeared to be describing not so much a news organization as a charitable institution.

The trial continues on Thursday with Daniel Morel in the witness stand.

Trial delayed by crooks
A court document has informed both parties that “Due to an unusually high number of criminal trials beginning in the Southern District of New York on November 12, there will be a insufficient number of available jurors”. The trial is now scheduled to start on Wednesday 13th, November.

Read EPUK’s pre-trial review: Agency Reputations at Stake in Historic Copyright Trial



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