Column by Jack Greiner, The Cincinnati Enquirer

A federal trial court recently upheld a $1.5 million damage award in favor of Daniel Morel, a Haitian photographer, against Getty Images and a French news service. The case centered around the copyright in 8 photographs depicting the devastation caused by the 2010 Haitian earthquake.

Morel, a professional photographer who lives in Haiti, had taken a number of photographs on January 12, 2010, in the aftermath of the devastating Haiti earthquake, and uploaded them to Twitter via a TwitPic account. A Twitter user named Lisandro Suero copied the photographs into his own Twitter feed without Morel’s consent, and though the parties dispute precisely what happened next, eight of the photographs — initially credited to Suero — ended up being distributed by AFP and its “image partner” Getty to thousands of news outlets and other customers around the world.

Ironically, AFP initiated the case. AFP filed a declaratory judgment complaint naming Morel as the defendant. AFP filed the lawsuit, hoping the federal court in New York would exonerate it. Morel filed a counterclaim against AFP for infringement, and also filed a third party claim against Getty. Following a series of pre-trial motions in which the court ruled that AFP and Getty had infringed as a matter of law, the case went to a jury trial to decide if the infringement was willful and to determine the amount of damages.

The jury found that both AFP and Getty had willfully infringed Morel’s copyright in the eight photographs. It awarded Morel $275,000 in actual damages, $28,889.77 total in infringing profits, and $1.2 million in statutory damages.

AFP and Getty filed motions with the court, asking the judge to set aside the jury verdict. Unfortunately for both, the judge was unmoved by their arguments. According to the judge, even after AFP became aware that the photos had been uploaded without Morel’s consent, it continued to distribute them. Getty continued to offer the photos for sale on its Web site even after receiving a “kill notice.” In the court’s view, the jury had sufficient evidence to deem the infringements willful and award the substantial damages.

The case is significant beyond the limited world of news outlets and photo dealers, because it touches directly on the proper use of social media. And the point is very simple. Copyright owners don’t forfeit their rights by uploading their work to a social media site. Here, Morel gave Twitter a license to display his photos by uploading them. But he didn’t give AFP or Getty the right to use them.

Some folks have the misconception that just because content is online, it belongs to everybody. Daniel Morel can show you 1.5 million reasons why that’s inaccurate.

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