Maximum Damage Award to Photographer Shows the High Cost of Using Pictures Posted to Social Media Without Permission

Haiti_Earthquake_building_damage.jpgA New York federal jury awarded the maximum amount of statutory damages to a photographer alleging copyright infringement against several media companies that used pictures he posted to the social media service Twitter. Agence France Presse v. Morel, No. 1:10-cv-02730, amended judgment (S.D.N.Y., Dec. 11, 2013). The decision could have important implications for any New York business that maintains a social media presence. Copyright protections still apply to pictures posted publicly on the internet. The cost of getting caught infringing someone’s copyright, if this case is any indication, vastly exceeds the cost of purchasing the rights to a stock photo.

Daniel Morel, a freelance photographer, was in Port au Prince, Haiti on January 10, 2010, when a devastating earthquake struck the city, and took photographs of the aftermath. He posted thirteen photos that day to the social networking website Twitter through Twitpic, an affiliated service that lets users attach pictures to tweets. The images did not contain any copyright notices, but his Twitpic page attributed the pictures to him under the name “Morel” and his Twitter username “photomorel.” His pictures were reportedly among the first to reach the outside world from Haiti.

He quickly received multiple requests from news agencies to purchase rights to his photographs. A photo editor at Agence France Presse (AFP) allegedly corresponded with Morel about the photographs, but then downloaded them and posted them to AFP’s own online image database. The editor also sent them to Getty Images, an image licensing company with the exclusive right to market AFP’s images in North America. The photos appeared in multiple news media, including the CBS Evening News and CNN, with AFP/Getty identified as the source.

Morel attempted to register the photographs with the U.S. Copyright Office in February 2010 after notifying AFP and Getty of the infringement. AFP responded by filing a declaratory judgment action on March 26, 2010, asserting that no copyright infringement occurred because Morel granted a nonexclusive license to his photographs by posting them to Twitter. Morel counterclaimed for copyright infringement against AFP, Getty, the Washington Post, and others. The court partly granted AFP’s motion to dismiss the counterclaim in January 2011, but allowed some claims to continue, including direct copyright infringement, contributory infringement, and claims under the Digital Millenium Copyright Act. AFP v. Morel, 769 F.Supp.2d 295 (S.D.N.Y. 2011).

The court granted partial summary judgment for Morel in January 2013, holding AFP, Getty, and the Post liable for copyright infringement. It rejected the defendants’ arguments that Morel had granted a license merely by posting the photos to Twitter, noting that Twitter’s “Terms of Service and Guidelines for Third Party Use of Tweets in Broadcast or Other Offline Media” expressly state that users retain all rights to anything they post. A jury concluded in December that the defendants willfully violated Morel’s copyright, and awarded him $1.2 million in damages, the maximum amount available under the U.S. Copyright Act.

Small business lawyer Samuel C. Berger offers fixed-fee legal-service packages to New York and New Jersey entrepreneurs and businesses. We handle a variety of legal matters for our clients, with the goal of enabling them to understand their rights and obligations, to keep their operations running smoothly, and to grow their businesses and prosper according to their plans and wishes. To schedule a confidential consultation with a member of our legal team, please contact us today online or at (212) 380-8117.

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Internet Domain Name Dispute Resolution for New York and New Jersey Businesses, New York & New Jersey Business Lawyer Blog, July 26, 2012
Five Legal Risks of Social Media for New York and New Jersey Small Businesses, New York & New Jersey Business Lawyer Blog, May 4, 2012
Photo credit: By Photo Marco Dormino/ The United Nations United Nations Development Programme (originally posted to Flickr as Haiti Earthquake) [CC-BY-2.0], via Wikimedia Commons.