Agency ‘caught with a hand in the cookie jar’
HAITIAN photographer Daniel Morel's case against Agence France Presse, alleging that it lifted his photos of the January 2010 earthquake in his country, grinds on.
Among papers filed with the Southern District Court of New York in early May is a 16 March 2010 email in which Eva Hambach, AFP's deputy photo editor for North America, writes: "AFP got caught with a hand in the cookie jar and will have to pay."
Barbara Hoffman, representing Morel, in the papers reminds Judge William H. Pauley that if he finds that if the infringement of Morel's copyright was "wilful" he can award damages of US$150,000 per photo - a total of over $120 million. The maximum in "statutory damages" under the US system, if the court does not make a finding that the infringement was "wilful", is $30,000 per work - in this case per photo.
AFP and co-defendant Getty Images continue to argue that they were allowed to distribute Morel's photos under the terms of service of Twitpix, on which he posted them - with the complicating factor that the agencies appear to have downloaded and distributed illegitimate copies made and posted to Twitpic by one Lisandro Suero, a resident of the Dominican Republic. Morel's lawyers point to a document entitled Copyright 101 posted on Getty's website which reminds readers of the common misperception that if "an image is on the internet, it's in the public domain and I don't need permission to use it."
The court has not yet said when it will respond to the "motion for summary judgement" to say whether there will be a full trial. Given the agencies' stance, the Freelance would be extremely surprised if there were not.