The defendants in the copyright lawsuit brought by photojournalist Daniel Morel are seeking a ruling from the federal trial court judge limiting their damages in the case. Attorneys for Agence France-Presse AFP) and Getty Images Inc. were in court on May 7, 2013, arguing that it is unfair that they should have to pay separate penalties for infringing upon Morel’s copyright by using the photos he had posted from his Twitter account.

Morel alleges that AFP used eight (8) of his aftermath photos from the 2010 Haiti earthquake without permission and then licensed them to Getty.  In response to a declaratory action brought by the defendants, U.S. District (SDNY) Judge Alison Nathan previously found that the terms of service set forth on the social media website did not grant the defendants the rights to such use.

Lawyers for AFP and Getty claim that since they are accused of participating in the infringement together – they should only have to pay a single penalty for each infringed work - where Getty’s alleged infringement came as a result of AFP’s improper use of the photos.

“If AFP and Getty are jointly and severally liable, there can only be one damages award against them under the plain language of the statute,” said James Rosenfeld, one of Getty’s lawyers. Morel’s attorneys countered that because Getty continued to use the photos even after AFP issued a ”kill notice” to take them down, that Getty should be liable to pay separate damages. “What did Getty do? They persisted,” said Joseph Baio, adding ”the jury should be able to determine if that was a separate act.”

The judge reserved her decision for a later date. The trial is scheduled to begin on Sept. 16,  2103 and will resolve the question of damages and other claims and defenses not already decided.

New York District Judge Alison J. Nathan has ruled (AFP-Morel Decision 01-14-13) that news service Agence France Presse (AFP) and The Washington Post Co (the Post) infringed upon photojournalist Daniel Morel’s copyright by their unauthorized use of his photos of the 2010 Haiti earthquake aftermath.

Mr. Morel had uploaded the photos in question to TwitPic.com by linking them to his Twitter account because the country-wide devastation to electricity and Internet connections forced him to use this more public method. Further complicating the matter, shortly after Morel posted his pictures online they were reposted to the Twitter account of Lisandro Suero, who tweeted that he had exclusive photographs of the earthquakes. A number of agencies including AFP then credited Suero for the photos.

In the original Complaint, filed in 2010 AFP sought a declaratory judgment that it had not infringed upon Morel’s copyrights and included defamation claims against him as well. Morel then counter-claimed that AFP, the Post, Getty and other news organizations had distributed his images without his permission.

In its answer AFP argued that it was a third-party beneficiary of the license agreement between Morel and Twitter, by claiming that Twitter’s Terms of Service (TOS) granted it a license as one of Twitter’s “other users.”

“Based on the evidence presented to the Court the Twitter TOS do not provide AFP with an excuse for its conduct in this case,” the Court noted in finding that “The Twitter [terms of service] provide that users retain their rights to the content they post — with the exception of the license granted to Twitter and its partners — rebutting AFP’s claim that Twitter intended to confer a license on it to sell Morel’s photographs.”

In making its ruling the court observed that “the dispute between the parties with regard to liability for direct infringement turns on Counterclaim Defendants’ affirmative defenses, namely their claims that (1) by posting the Photos-at-Issue on TwitPic/Twitter, Morel granted them a license, (2) Getty is entitled to the benefit of a DMCA safe-harbor, and (3) Getty has not engaged in volitional conduct sufficient to impose liability.”

In an ironic twist this recent decision comes two years to the date after District Judge William H. Pauley III issued his Decision denying AFP’s motion to dismiss Morel’s counter-claim suit. In that earlier proceeding Judge Pauley also concluded that the express language of the Twitter and TwitPic TOS did not provide an express license that protected AFP.

In her well-reasoned 58 page decision Judge Nathan granted Morel partial summary judgment ruling that “AFP and the Post are liable for copyright infringement as to the Photos-at-Issue.” But the court rejected his “arguments regarding the scope of statutory damages available under the Copyright Act and DMCA.” The judge also denied motions for summary judgment with regard to whether the infringements were willful; as well as the “claims for contributory and vicarious copyright liability.”

Because there remain genuine issues of fact the Court denied Mr. Morel’s claim for summary judgment regarding DMCA violations and also limited his recovery under that Act should he prevail at trial. After careful analysis the Court also concluded “that any awards of statutory damages against AFP or Getty may not be multiplied based on the number of infringers with whom AFP or Getty is jointly and severally liable. Rather, AFP and Getty are, at most, each liable for a single statutory damages award per work infringed.”

Judge Nathan further rebuked AFP by stating “in making its arguments on summary judgment AFP wholly ignores those portions of the Twitter TOS that are directly contrary to its position, particularly those portions stating that ‘you retain your rights to any Content you submit, post or display’ and ‘what’s yours is yours – you own your content.’”

This case serves as a cautionary tale about just how important it is to read and understand any TOS before clicking “agree.” These were the Twitpic TOS at the time that Morel uploaded his images: “by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.” You should also read the current TOS which have been substantially modified, due in large part to this case.

Morel settled with counter-claim defendants ABC, CNN and CBS in 2011. A conference is set for February 1, 2013, at 4:00 pm to discuss further scheduling of this matter.

Update: Morel’s attorneys have released a press release, stating in part that “Although Judge Nathan rejected Morel’s legal theory entitling him to as much as one hundred twenty million dollars in statutory damages, Morel still hopes to win millions in damages following trial.”

An Open Letter To Mr. Alec Baldwin:

Today when you attacked photographers who were waiting outside the city Marriage License Bureau in New York City, it was not the first time that you’ve assaulted members of the very media who helped to make your name a household word. It’s been reported that after today’s incident you Tweeted, “A ‘photographer’ almost hit me in the face with his camera this morning. #allpaparazzishouldbewaterboarded.” You then continued to display your insensitivity by Tweeting, “I suppose if the offending paparazzi was wearing a hoodie and I shot him, it would all blow over …”.

Rather than make light of a national racial tragedy, I suggest that if you don’t want to be recognized when you go out in public it is you who should be wearing something over your head.

Eyewitnesses to today’s incident report that not only were the photographers not near you at the time you aggressively went after them, but that they were in retreat as you continued your unprovoked assault. Whether you like it or not, you are a public figure involved in a newsworthy event. And as you well know from your lifetime of celebrity public life, there is no expectation of privacy on a public street.

No one is really surprised that you continue to act in this manner, given past performances. But as a former photojournalist who is now general counsel for the National Press Photographers Association (NPPA), I object to your combative actions against photographers who were doing nothing more than waiting to take your photograph, an activity you’ve willingly participated in thousands of times, posing when you thought it was in your best interest.

I do not know whether those you attacked have filed assault charges, but I hope they do. Because until you and others like you are held accountable for your actions, this supposed “open season” on photographers will unfortunately continue. It is all too easy to denigrate working journalists by calling them “paparazzi,” but not all photographers deserve that demeaning title, just as all actors are not boors or bullies.

For someone who is politically active and who routinely calls for holding the government accountable, which is one of the central roles of the press, it is more than a little disappointing to watch you literally attack the media as you did today. I hope you pause to reflect on your criminal actions. Just think of the nice images you could have made walking hand in hand together, rather than the headlines you’ll get tomorrow for committing assault.

Normally I spend my time dealing with misguided police officers or security guards who incorrectly believe that they can abridge a person’s First Amendment rights to photograph and record in public. Maybe today you took your cues from them. In any case, the next time you see an adoring fan or anyone with a camera who is waiting to take your picture on a public street, why not just count to 10 and say “cheese.” In the meantime, please don’t assault the news photographers who are diligently working to earn a living wage.