Anyone who has ever had Getty Images’ lawyer send them a letter demanding payment of retroactive fees for trivial usage of copyrighted photographs on their website will see the irony in a recent federal court decision granting a photographer $1.2 million in damages for misuse of his photographs by that company and another who took eight of his photographs from a Twitter account and subsequently published them and licensed them for use by others. The dispute arose when freelance photographer Daniel Morel found himself on the scene of the 2010 Haiti earthquake and uploaded some photographs to his Twitter account; another Twitter user transferred the images to his account; and in its haste to provide authoritative coverage on the earthquake the Agence France-Presse news service obtained Mr. Morel’s images from the other Twitter user and published them with attribution to that individual rather than Mr. Morel as the source. As a U.S. distributor for AFP, Getty Images also obtained access to and redistributed Mr. Morel’s photographs. Even though they learned fairly quickly that the photographs belonged to Mr. Morel rather than the other Twitter user, AFP and Getty Images were slow to take corrective action and appear to have followed a course of action designed to fend off Mr. Morel until they had done what they wanted to do with his photographs.
The matter was actually taken to litigation by AFP in a declaratory judgment action filed against Mr. Morel, and the eventual $1.2 million judgment in his favor resulted from his counterclaims in that case. Even though any profits gained by AFP and Getty Images from the photographs appear to have been quite low, the jury in the case awarded Mr. Morel statutory damages of $150,000 per image for willful copyright infringement, plus a much smaller amount for violations of the Digital Millennium Copyright Act, bringing the total awarded to Mr. Morel to just over $1.2 million.
One lesson to be learned from this case is that just because someone uploads a photograph (or anything else, for that matter) to a social media account does not mean that anyone else is free to download it and use it for commercial purposes. Doing so risks a claim of copyright infringement and the need to eventually pay the owner for use of the photographic or other download. While this is the basis of the business model of Getty Images and others who pursue users of copyrighted materials on their websites, the same copyright law on which they profit under that business model proved to be a two-edged sword that cut against them in this instance. – Bob Smartschan