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In AFP v Morel Judge Denies Attorney Fees to Morel Trial Lawyers, Grants Lien by Former Lawyer

March 24th, 2015 by and tagged , , , , , ,

******************* UPDATE 03-24-15 ***********

In a surprise decision the trial court judge in the case denied Morel’s application for attorneys’ fees for his trial lawyers but granted the motion by his prior lawyer for her charging lien. “Briefly stated, Morel fought a fair fight and won. The fact that this was a close case on the merits, involving novel legal issues, persuades the Court that the purposes of the Copyright Act are not furthered by awarding fees and costs pursuant to § 505.”  Read decision AFP v Morel – attorneys fees 03-23-15

 

*************** UPDATE 10-05-14 ***************

On October 3, 2014, Morel’s lawyers filed a Memorandum of Law in Support of Daniel Morel’s Motion for an Award of Attorneys Fees and Costs against. Attorney Joseph T. Baio argued that as the prevailing party where the Court had already affirmed the damages that the jury had awarded, Mr. Morel is entitled to more than $2.3 million in fees and another approximately $200 in expenses. Additionally Mr. Morel’s previous attorney, Barbara Hoffman is seeking more than $700K in fees for her part of the case.  orm of a new trial on all issues.”

*************** UPDATE 01-29-14 ***************

On January 24, 2014 Morel’s lawyers filed a Memorandum of Law in Opposition to Defendants’ Motion for a Judgment as a Matter of Law. Attorney Joseph T. Baio argued that the court should stop AFP/Getty’s “continuing four-year war of attrition against Mr. Morel” and  deny their request “to eradicate the jury’s findings across the board, slash the amounts they must pay Mr. Morel, or order a ‘do-over’ in the form of a new trial on all issues.”

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Getty Images and Agency France-Presse have filed documents requesting a landmark copyright infringement verdict rendered against the media giants be overturned.

In the motion challenging the verdict, AFP and Getty’s lawyers claim, among other things, that no reasonable jury could have found that their clients willfully committed infringement.  The motion also disputes the jury’s allocation of actual damages (damages directly traceable to the copyright infringement) claiming the $275,000 was excessive and not supported by sufficient evidence.  AFP and Getty are seeking a reduction in damages or a new trial so the issue can be reheard.

Last November a jury essentially threw the book at Getty and AFP, awarding photographer Daniel Morel $1.22 million in damages on a claim arising from the media groups’ unauthorized use of Morel’s photos of the aftermath of the 2010 Haitian earthquake.

The case arose after Getty and AFP used images Morel posted to Twitter.  The groups falsely credited another user who had reposted the photos and claimed to own them. The damages awarded are the maximum allowed, increasing the impact of a case that had already captured the public’s attention as a test of the law’s treatment of intellectual property shared on social media.

Getty and AFP claimed that Twitter’s terms of service allowed supported their use of Morel’s photographs.  AFP went as far as to file suit against Morel, arguing that he was interfering with their business practices.

In 2011 a federal district court judge dismissed AFP’s claim and ruled that it, as well as Getty, had infringed on Morel’s copyright by publishing the photos without his permission, and the decision was heralded as a major victory for photographers who share content on the Internet. It was then up to a jury to decide the appropriate damages, that determination in part being premised on whether or not the group’s copyright infringement had been “willful”.

 

Posted in AFP, AFP v Morel, Agence France-Presse, Daniel Morel, Digital Millenium Copyright Act, Getty, Getty Images, Lawsuit, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism, Twitpic, Twitter | No Comments »

NPPA Joins in Brief Supporting Photographer in Pivotal Copyright Case

December 18th, 2013 by and tagged , , , ,

The NPPA joined several other photographer and writer advocacy groups today in filing legal documents urging a New York judge to find that an artist who used a photographer’s images in art exhibits without permission did so in violation of copyright law.The decision in the case represents a test of a key legal doctrine, and will hopefully both clarify and place a reasonable limit on the “fair use” defense, which allows use of an otherwise copyrighted work for criticism, comment, news reporting, teaching, scholarship, or research.

In 2007 and 2008, artist Richard Prince altered and incorporated 30 of Patrick Cariou’s pictures into paintings and collages displayed in St. Barth’s and New York City.  Cariou captured the images, which appeared originally in his Yes Rasta collection, over the course of six years living amongst Rastafarians in Jamaica.  When Cariou discovered Prince’s work, he sued the artist for copyright infringement.

Prince defended the 2008 suit under the fair use doctrine, arguing that by incorporating the images into a new context, a collage or painting, he had “transformed” the pictures sufficiently to claim fair use. A U.S District Court judge disagreed, holding that the art did not transform the images in a manner that was meant to critique or otherwise comment on them.

The district court’s decision was almost completely overturned earlier this year, when the Second Circuit of the U.S. Court of Appeals found the lower court had applied an incorrect legal standard.

The court found that “[t]he law imposes no requirement that a work comment on the original or its author in order to be considered transformative” and that 25 of the photographs Prince used were protected as fair use.  The remaining five images presented “closer questions” the court said, as alterations to their physical appearance was minimal. See earlier NPPA story here.

The question of whether or not a work is “transformative” is central to a fair use analysis, the court noted, as transformative works … lie at the heart of the fair use doctrine’s guarantee of breathing space.”  Applying an inclusive definition of the doctrine, the court found that a work could qualify as fair use even if it is not one of the aforementioned uses included in the copyright statute. The Second Circuit found that all that is required is that the work communicates “new expression, meaning, or message.”

Now, as the District Court prepares to reconsider copyright claims related to the remaining five works, the NPPA along with the American Photographic Artists, American Society of Journalists and Authors, American Society of Media Photographers, Graphic Artists Guild, Jeremy Sparig, Picture Archive Council Of America and Professional Photographers of America have all joined in amicus brief in support of Patrick Cariou in that the defendants in this case have not met their burden under the fair use defense with regard to the five paintings being considered on remand. 

NPPA General Counsel Mickey Osterreicher articulated this position in an affidavit to the court as part of the brief drafted by attorney David Leichtman of the law firm of Robins, Kaplan, Miller & Ciresi, LLP. “If a lawsuit is brought [under the Second Circuit’s standard] , original photographers seem to be facing a judicial system that continues to eviscerate their rights as copyright holders by ruling more and more unlicensed derivative uses as “fair use,”” Osterreicher said, “However, fair use was not meant to be an offensive assertion permitting infringers to believe that they have the right to misappropriate and infringe on copyright holders’ rights with complete immunity.”

Osterreicher also noted that a broad interpretation of the fair use defense threatens critical economic models of the photography industry, and categorically protecting works like Prince’s from claims of infringement sets a dangerous precedent.

“Along with inclusion in various media, NPPA members make images available for licensing for uses such as those of the works created by Prince. If Prince needed an image of Jamaica, or Rastafarians, these images could have been, and should have been, lawfully licensed easily and for the appropriate standard license fees,” Osterreicher said, adding, “Any image has the potential to be licensed for multiple purposes. To isolate ‘art reference’ or ‘art’ as special classes of use that no longer require any licensing, weakens the licensing model and opens the door to more and more unlicensed uses.”

Appropriately cabining the fair use defense is especially important today, in an environment where monitoring infringements is increasingly difficult, and their economic toll continues to mount.

“NPPA members must shoulder the burden of policing infringements while at the same time seeking and fulfilling photographic assignments, working on self-initiated projects and maintaining all of the tasks of running a 24/7 business. For many, losses due to infringement have been devastating,” Osterreicher said.

The NPPA will continue to monitor the case and report on any significant developments.

 

Posted in Access, copyright infringement, Daniel Morel, Fair Use, First Amendment rights, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism | No Comments »

A Tale of Two Cases: How Photographers Are Being Squeezed From All Sides

November 20th, 2013 by Mickey Osterreicher

Today was a picture perfect example of how photographers are being squeezed from all sides. On the front end photographers are being interfered with and arrested on an almost daily basis nationwide for doing nothing more than trying to do their jobs by photographing and recording matters of public concern on city streets.

In one such case a NYC Criminal Court jury acquitted photographer Jason Nicholas today on a misdemeanor count of Obstructing Governmental Administration. Mr. Nicholas was arrested in 2011 for allegedly interfering with NYNJ Port Authority Police while covering a news story. A previous trial resulted in a hung jury but the district attorney chose to re-try him. Afterwards Mr. Nicholas said, “this is a victory for us and a swift and resounding defeat for the police and prosecution!” “Now maybe we can get this to stop on behalf of all journalists,” he added.

On the back end where photographers works are being used globally without their permission, Daniel Morel was sitting in a federal courtroom a few blocks away from Mr. Nicholas. He is pitted against Agence France Press (AFP) (and Getty Images) in a copyright infringement case. Read about this case along with updates here.

Liability for infringement has already been established. The only remaining defendants in the counterclaim case are AFP and Getty Images, as the other defendants have already settled with Mr. Morel.  All that is left for the jury to decide is how much each of them (AFP & Getty) must pay in damages. Click here for a running blog of the six (6) days of testimony.

Attorneys for both sides are expected to make their closing arguments tomorrow morning in the Southern District of New York Courthouse located at 40 Foley Square in New York City. Judge Nathan’s courtroom is on the 5th floor for those of you able to attend.

So on one day within a few blocks of each other I was able to view some of the major challenges facing photographers around the world and also witness how two of them chose to stand up for their rights and by so doing take a stand against those who would violate our constitutional and copyrights.

 

Posted in Access, AFP v Morel, Agence France-Presse, Assault on Photographers, contracts, copyright, copyright infringement, Daniel Morel, False Arrest, First Amendment, First Amendment rights, Fourth Amendment rights, Getty, Lawsuit, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Recording Police, retaliation for the exercise of First Amendment rights, social networking, Twitpic, Twitter | No Comments »

AFP and Getty Seek To Limit Damages in Photographer Copyright Suit

May 8th, 2013 by Mickey Osterreicher and tagged , , , , , , , ,

****** UPDATE 8/8/13

According to reports the Washington Post Company, one of the last remaining defendants in the AFP v Morel copyright infringement case, is close to reaching a settlement agreement with Daniel More, who claims that the publisher used his photos of the 2010 Haiti earthquake without his permission. It also appaears that the other defendants, Agence France-Presse and Getty Images, Inc., cannot reach agreement and are expected to go to trial on Septmeber 16, 2013 in front of U.S. District Court Judge Alison J. Nathan.

 

****** UPDATE  5/22/13

A federal trial court judge limited Mr. Morel’s damage claims against AFP & Getty finding that they are jointly but not individually liable because Getty’s alleged infringement stemmed from that of AFP.  Therefore they should not be held liable to pay separate penalties. This is a clear rejection by Morel that Getty should be held separately liable because it continued to use the photos after AFP’s”kill notice” to take them taken down.

The decision reduces Morel’s damage claims to eight — with a possible award for each one of those claims rather than the multiplier factor Morel had proposed.

“As with individually liable infringers, the statute authorizes a single statutory award per work for all infringements in an action against jointly and severally liable infringers, regardless of temporal or casual breaks in the course of those parties’ infringement of a given work,” said U.S. District (SDNY) Judge Alison Nathan.

Morel’s attorney, Joe Baio, said that while he was disappointed in the ruling, he was please that the court “reaffirmed” the liability of the defendants and that Getty’s continued use of his clients photos despite the kill order may also support willful infringement finding.

********

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.

Posted in AFP, Agence France-Presse, copyright, copyright infringement, Daniel Morel, Getty, Lawsuit, photojournalism, Twitter, Washington Post | No Comments »

UPDATE: AFP v Morel Copyright Infringement Case

January 16th, 2013 by Mickey Osterreicher and tagged , , , , , , , , ,

***** UPDATE 10/18/2013 – In a case already full of twists and turns, presiding U.S. District Judge Alison J. Nathan, had harsh words for the attorneys representing Daniel Morel in his copyright infringement lawsuit against remaining counterclaim defendants AFP and Getty. According to reports the counterclaim plaintiff’s attorneys Barbara Hoffman and Joseph T. Baio have attempted to involve the court in their dispute over Hoffman’s access to the terms of the confidential settlement agreement that was recently reached with the Washington Post (see update below).

Hoffman and Baio each sent letters to the court asserting their position (see Hoffman Letter and Baio Letter) In her one page Order addressing the “letter dispute,” Judge Nathan admonished the lawyers for having “failed to meet and confer in a professional and reasonable manner before burdening the court with this dispute.” She then ordered them to meet and confer “for no less than one hour in an effort to come to a reasonable and professional agreement. Failure to abide by this requirement may result in sanctions.”

As can be read in the dueling letters (above) Hoffman, who earlier represented Mr. Morel on a contingency fee basis, has claimed a charging lien on any settlement agreements. Baio, whose law firm, Willkie Farr & Gallagher, LLP, now represents Morel expressed concern about confidentiality terms.

In two other late developments, Roger Netzer, of the same law firm entered an appearance of counsel of record for Mr. Morel on October 17th and Matthew R. Farley filed a motion for admission pro hac vice (a legal term literally meaning “for this turn” and usually referring to a lawyer who has not been admitted to practice in that court but may be permitted to represent a party in that case).

The trial is still scheduled to begin on 11/12/2013.

 

****** UPDATE 10/3/2013 – This week the presiding judge dismissed claims against the Washington Post Co., one of the defendants in the copyright infringement case, after the parties reported they had reached an undisclosed settlement. In her two-page order, Judge Nathan dismissed the claims against the Post with prejudice and without costs, which means that neither party were responsible for paying the others’ costs or attorneys’ fees. The order also barred remaining defendants AFP and Getty from being able to deduct any payment of the Post settlement amount from any future award of damages to Morel.

The trial is scheduled to begin on 11/12/2013.

**********************

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.”

Posted in AFP v Morel, Agence France-Presse, copyright, copyright infringement, Daniel Morel, Digital Millenium Copyright Act, Getty, photographers, Photographers' Rights, photojournalism, Twitpic, Twitter, Washington Post | No Comments »