The Empire strikes back

Just when we thought the Daniel Morel v AFP/Getty Images saga was all over with a 1-0 result for the good guys for once, the defendants have filed a motion to overturn the verdict.

One of the Daniel Morel images illegally distributed by Getty Images: Haitians rescue a woman trapped beneath rubble in the capital Port-au-Prince, minutes after an earthquake hit on January 12. This image won 2nd Prize at the 2011 World Press Photo awards. Daniel Morel also won top prize in the Story category for the series. (By permission, Daniel Morel)

One of the Daniel Morel images illegally distributed by Getty Images: Haitians rescue a woman trapped beneath rubble in the capital Port-au-Prince, minutes after an earthquake hit on January 12. This image won 2nd Prize at the 2011 World Press Photo awards. Daniel Morel also won top prize in the Story category for the series. (By permission, Daniel Morel)

Daniel Morel. (Source, 2011 World Press Photo interview.)

Daniel Morel. (Source, 2011 World Press Photo interview.)

Morel was awarded US$1.2 million in November last year for unauthorised distribution of his compelling images of victims of the 2010 Haitian earthquake. It was a significant outcome, as one of the first successes by a professional photographer/copyright holder in testing their rights in the online world.

The lawyered-up global agencies are now labelling the amount of damages a ‘miscarriage of justice’, arguing it is ‘intrinsically excessive’. They are also maintaining that AFP/Getty Images’ were not in ‘reckless disregard’ for Morel’s rights in using his images without permission, but rather they ‘might have been careless’.

In other words, they are once more arguing that it was a misunderstanding and being hit with the maximum penalty under the Copyright Act in the US is too harsh.

The 35-page document states the jury ‘simply ignored the relevant factors in favour of providing a sympathetic plaintiff with a large recovery’, likening it to Morel winning the lottery. Getty Images and Agence France Presse are seeking to reduce the statutory damages to a total of $200,000, despite the original sum of $1.2 million (plus $400,000 in fines) hardly affecting the livelihood of the two multi-billion dollar companies.

As this is one of the first cases addressing images being published on social media and then being used by third parties for commercial use, it is likely the two agencies are continuing to fight Morel to set a favourable precedent for themselves. If they succeed in significantly reducing the damages, the two companies (and many others) will be free to repeat such ‘careless’ acts with relatively modest financial consequences.

It remains unclear whether the case will go to a re-trial.

UPDATE: Daniel Morel isn’t backing down – his lawyers have lodged their own 40-odd page document in response. To access a PDF version, click here


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