At this trial the eight-person jury will award Daniel Morel some damages. That much is certain as both AFP and Getty Images have already been found guilty of infringement.

What makes this trial so important is the battle over whether AFP and their partner Getty Images acted “wilfully” when they took photographs of the 2010 Haitian earthquake from photographer Daniel Morel’s Twitpic account and distributed them as their own, crediting another photographer.

If the jury agree on the wilfulness verdict it will make such cavalier attitudes towards photographers’ work by agencies far less likely in future and will seriously damage the reputations of both AFP and Getty Images, two of the biggest players in photography today.

Agency business practices under scrutiny

For Getty Images and AFP the stakes are far higher than just the damages they will pay Morel. The jury will deliver a verdict on their ethics, their honesty and their business practices. A strong victory for Morel will strengthen copyright protection for photographers and force all agencies properly to respect photographers’ rights. It will be a welcome levelling of a badly tilted playing field.

The agencies’ desperation not to lose the case is clear from the estimated $7million that they have already spent on legal costs. With the clock running at something like $10,000 an hour, the four to six day trial is expected to cost AFP and Getty Images a further $2million. The trial has already been moved to larger courtroom partly to accommodate the unusually large team of eight lawyers fielded by the two agencies.

EPUK will be posting DAILY REPORTS from the trial.

For British photographers, it’s their copyright protection in the US that is at stake – if the agencies’ defence is successful then US Copyright Office registration could well become worthless.

When Morel complained about the theft AFP sued him

Former Associated Press photographer Daniel Morel has been documenting Haiti, his native country, for more than 20 years. When a devastating earthquake hit Haiti on January 12th, 2010 Morel uploaded thirteen images to Twitpic in an attempt to market his work himself. It was immediately apparent that the photographer’s images of Port-au-Prince were the most powerful images taken of the earthquake.

An AFP editor took eight of Morel’s photographs without his permission and distributed them through the AFP feed and through Getty Images, crediting them to “Lisandro Suero, AFP/Getty Images”. The previously unknown Suero was in the Dominican Republic at the time of the earthquake. Suero was the original copyright thief and AFP was aware of this fact on the day of the earthquake.

As a result, Morel’s misattributed images were sold to customers of AFP and Getty Images around the world, appearing on the front pages and websites of major newspapers and magazines.

When Morel complained, AFP sued him for “commercial disparagement”. Their intent was to remove the photographer’s copyright protection from his own work. Adding insult to injury AFP also requested damages against Morel. Judge Nathan has ruled that the jury, to be selected on November 13th, should remain unaware of this fact for the Manhattan trial, as it might unfairly prejudice them against the agency.

In January 2013, Judge Nathan found that AFP and Getty Images had violated the US Copyright Act and infringed Morel’s copyright when they took his photographs off the internet, misidentified them, added their own names to the credit lines, and licensed them to their worldwide clients. It is now up to the jury to decide whether AFP and Getty Images acted “wilfully” in their misuse of Daniel Morel’s photographs and in their mistreatment of him in the months following their infringements. They will also decide on the damages he will receive.

Not scared of anything

According to one legal source, AFP and Getty Images have been “unusually vile and vindictive” towards Morel. AFP’s director of photography for North and South America, Vincent Amalvy – who was involved in the original lifting of Morel’s work and is set to appear in court on Wednesday – has already admitted that when a big news story breaks AFP toss the copyright rulebook out of the window.

The maximum damages the jury can award Morel at this trial is $1.6million plus legal expenses. That’s $150,000 per infringement for 8 images, plus 16 DMCA (Digital Millennium Copyright Act) offences relating to the alteration and removal of copyright information at $25,000 each.

If the jury finds wilfulness in the Manhattan trial then further proceedings could begin in relation to other DMCA offences not included this time round. The potential bill for AFP and Getty Images could be considerably higher.

In 1964, at the age of 13, Daniel Morel saw some photographs of an execution in a studio window. He decided then that he wanted to take pictures. “I thought that by being a photographer, I would learn not to be scared of anything,” says Morel on his web site.

In a Manhattan court house nearly fifty years later, the Haitian’s fearless determination not to be bullied may be about to pay off, not just for him personally but for all professional photographers who value their work.

The trial is expected to last four to six days. Leave to appeal by either side will be granted.

• FOLLOW EPUK’s DAILY REPORTS from the Daniel Morel vs. AFP and Getty Images trial in New York

• Daniel Morel heads to trial against media giants AFP and Getty Images

• The First Photographs from Port-au-Prince of the Haiti Earthquake. Daniel Morel describes how he documented the 2010 Haitian earthquake on the Time Magazine web site.

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