Written by: Susan Neuberger Weller

A federal jury in New York has found Agence France-Presse and Getty Images Inc. willful in their infringement of Daniel Morel’s copyrights in eight photographs of the 2010 Haiti earthquake, and ordered them to pay damages of $1.2 million. The court had already found AFP  liable for direct copyright infringement on summary judgment, but sent to the jury for disposition the issue of whether Getty’s affirmative defenses vitiated any liability for infringement. The jury was also asked to decide whether any infringement by either Defendant was willful. In addition, the jury awarded Morel $20,000 after finding that the two Defendants also violated the Digital Millennium Copyright Act.

 Morel, a photojournalist, was in Haiti when the earthquake struck and posted photographs he took of the aftermath to Twitter through a TwitPic account. The photographs were then reposted to the Twitter account of Lisandro Suaro who tweeted that he had exclusive photographs of the earthquakes. AFP picked up the photos, credited them to Suero, and transmitted them to Getty. AFP and Getty had entered into a license agreement in which they granted reciprocal rights to display and license their respective images. Getty distributes photographic images worldwide and allows subscribers and nonsubscribers to license the images, and did so with the Morel earthquake photographs.

Morel asserted that AFP and Getty violated several of his exclusive rights in the photographs as copyright owner, including infringement of his exclusive right of reproduction, infringement of his exclusive right of public display, and infringement of his exclusive right to distribute the copyrighted photographs. AFP and Getty did not contest that they engaged in activities with respect to the photos that infringed these rights, but asserted affirmative defenses which they claimed precluded any liability. The affirmative defenses included AFP’s third-party beneficiary/license defense based on Twitter’s Terms of Service, Getty’s reliance on the safe harbor provisions of the Digital Millennium Copyright Act, and Getty’s failure to engage in volitional conduct sufficient to impose liability.

Prior to the jury trial, the court on summary judgment found that AFP could not rely on a third-party beneficiary/license defense based upon the Twitter Terms of Service. The Terms of Service provide that anyone posting content grants Twitter a “worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute” the content in any and all media or distribution methods. The Terms go on to state that the license includes the right for Twitter to make the content available “to other companies, organizations or individuals who partner with Twitter for syndication, broadcast, distribution or publication” of the content. The court concluded that the license from Morel to Twitter under the Terms of Service conferred rights to two classes, namely, Twitter’s “partners” and “sublicensees,” neither of which included AFP.

After finding in favor of Morel on all claims, the jury awarded him the maximum amount of statutory damages permitted under the Copyright Act for willful infringement of the eight photographs at issue, plus damages for violation of the DMCA.

As we have cautioned in the earlier posts, just because you can copy something available on the Internet does mean you have the legal authority to do so. Consider yourself warned again.