PetaPixel

Could the Morel v. AFP/Getty Case Rewrite the Rules of Licensing Negotiation?

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As it turns out, we all might have some skin in the Daniel Morel vs. AFP/Getty Images copyright game; and we’re not just talking about emotional investment here, there are serious precedents being set.

Lawyers representing Morel filed a response (and kindly forwarded a copy to PetaPixel) late last week to the recent appeal by Getty and Agence France Press of the $1.2 million judgement against them for distributing eight of Morel’s photos of the devastating 2010 earthquake in Haiti without permission.

The photo agencies argue in their appeal that the misappropriation was an honest mistake and that the penalty is way out of line with what Morel would have earned from the photos otherwise.

Morel’s lawyers note in their response (which asks the court to nix the appeal and uphold the jury’s verdict) that penalties for violating the law are supposed to cost more than compliance would have — it’s called “deterrence.” Furthermore, they argue that allowing the agencies to decide prices after the fact would enshrine in law a novel and dangerous model of post-hoc licensing negotiation.

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“In AFP’s view, the giant photo agency should be allowed to take whatever it wants from the Internet and later pay whatever it thinks is appropriate if the copyright holder fails to respond promptly to a request for permission to license,” says the motion. “That AFP continues to press this baseless argument further shows that it still hasn’t learned its lesson.”

The new motion also devotes many pages to defending the jury’s conclusion that the photo agencies’ violation were “willful,” which supports a significantly higher award. Morel’s team notes that for conduct to be considered “willful,” it need not be intentional — acting with “reckless disregard” for the law is sufficient.

In that light, consider this courtroom exchange in which AFP photo editor Vincent Amalvy details the exhaustive effort to vet Lisandro Suero, the Twitter culprit to whom Morel’s photos were originally credited:

Plaintiff: First, I want to ask what you did to confirm Mr. Suero’s identity and what you did to confirm the fact that he took the pictures.

Amalvy: I tried to write to Mr. Suero.

P: What else did you do to verify his identity and whether he took the photographs?

Amalvy: Nothing else.

P: Did you ask the person on the desk,  please find out what or who Lisandro Suero is?

Amavy: I think as part of our general conversation, I might have asked about it, but we didn’t undertake any specific research.

P: Did you take any general research to find out anything about the person using the name Lisandro Suero?

Amalvy: No

Hmmm, if only there were some way by which a person could “search” for specific information on this Internet thing…


Image credit: Copyright-Free Images by lucyb_22 and Copyright Wordle by Chrissy H.


 
 
  • Syuaip

    “Hmmm, if only there were some way by which a person could “search” for specific information on this Internet thing…”

    Sir, what is the Internet?

    #facepalm

  • http://vikireedphotography.com/ viki reed

    Beautifully written , smart and succinct. A complex subject and I think that’s what Getty and other stock and licensing agencies hope it stays-too annoyingly complex for photographers to have a voice. Gotta love the use of ‘enshrine’. Bravo!

  • Brian Drourr

    Preposterous. the internet is far to vast to search! i should know I asked Google!

  • Walter Ochs

    It’s easy. First you fire all the photographers on your staff and just pay stringers or witnesses for the pictures. Step 2: stop paying for anything and steal them. Seems like the new business model.

  • James

    You know Getty is a massive copyright holder that is, with this lawsuit trying it’s hardest to destroy the institute of copyright protection just to wiggle it’s way out of paying a (to them) measly 1.2mil.

    Part of me just really hopes that they win, and that as they do they tear up the copyright protections we all enjoy so baldy to the point that their business promptly fails at the hands of the countless news and literature organizations who will “try their best” to find the real copyright owners (them).

  • Dale Joyce

    Getty should be careful what they ask for…that could open a 2 way street putting them on the other side readily. And they really would be unhappy about that.

  • Jerome

    Well this shouldn’t be a problem. I mean Getty doesn’t mind if you use THEIR images without permission or payment…. do they?

  • http://www.sin3rgy-creative.com/ David Liang

    If we’re to really follow Getty’s example. We should all use their images, feign ignorance when caught, argue penalties unreasonable, hoping to eventually pay just what it would have cost to license.
    They clearly want to side step punitive damages, clever attempt by their lawyers but I don’t think they’ll win on those grounds.

  • Jerome

    Being someone who has worked advertising and used Getty work I know they are the WORST with pricing based on where, when and even how many people are likely to see whatever the image is to be used in. And there are time limits to how long the image can be used after you’ve purchased it. Their own rules about the use of their photos are insane and that’s why it is STUNNING that they, of all people, would try and pull some crap like this and why winning this appeal would actually be horrible for them. It’s really weird.

  • brat

    lol…luv tht

  • http://www.sin3rgy-creative.com/ David Liang

    Kind of like a snake eating it’s tale. It is kind of weird isn’t it. I wonder if they’re blinded by one perspective, perhaps they thought if they lose this case, they’ll look like hypocrites profiting from copyrighted work while violating the copyright of someone else. So I wonder if they thought they can’t lose the case as that admits wrong doing. But where their lawyers have taken the argument, they look like hypocrites anyways, and worse the ruling could have other legal effects on their business.

  • Patrick Calder

    It’s called “Rights Managed” photography, and it’s not at all unusual. Most people prefer “Royalty Free” for it’s simple ‘one-price-for-everything’ nature; but it’s not the only type of licensing.

  • Jerome

    Yeah, I know they were Rights Managed and not Royalty Free. And I understand the distinction and why they operate that way. But I hoped to explain it in a way that laypeople who’ve never had to purchase stock photography for projects would be able to clearly understand so that I could make my larger point that Getty Images are the LAST people on earth who should be whining about having to pay damages for stealing someone’s photography and when caught trying to weasel out of paying penalties that will make them less likely to steal again in the future.

  • Aloisi

    In 2014, Internet for many people is, simply put “Facebook”. Concering the “net” people don’t think anymore, they only follow the stream.

  • http://blog.volgyiattila.hu/ Attila Volgyi

    Hardly enough as a defence in court….or probably during a job interview as well, when you apply to be a photo editor at AFP or Getty…
    ,-))

  • Interested Observer

    I might try that next time I go shopping…just take stuff, say “I’ll pay you later, what I think it’s worth” & then just not pay. Good plan?

  • Walter Ochs

    Hahaha. Exactly. I want to walk into their corporate offices, find someone sitting in a chair in the lobby and ask them if they own it. Whether they reply or not, I’ll just take the chair and assume it’s fine.