The penalty phase of the copyright infringement case brought against Agence France Presse (AFP) and its US partner, Getty Images, by Daniel Morel, began yesterday at the Thurgood Marshall Courthouse in Lower Manhattan. A jury of eight is charged with determining the monetary damages owed by the two behemoths to Morel. The court will also determine if there has been any violation of the Digital Millennium Copyright Act (DMCA).

Opening remarks by Joe Baio, the attorney for Morel, presented events that occurred on January 12, 2010, when Morel was one of the first photojournalist to shoot and post, online, images he made during the earthquake in Haiti, his homeland. In a crisp presentation lasting roughly 45 minutes, Baio outlined facts of the case largely through emails exchanged by the parties concerned (presumably evidence from the trial), also explaining to the jury how large photo agencies license, distribute, and charge for images supplied to media outlets worldwide. 

 

While the court has established that the copyright to Morel’s photographs was infringed on by the two agencies, the penalty will be determined by the jury’s belief—or not—that these organizations willfully attempted to cause him harm through their actions. One key piece of information that will likely be strenuously argued is that during the early hours of this catastrophic event, from which very few professional photographs were being issued, “APF could not remain invisible, whatever the consequences,” as Biao quoted from the agencies' internal communications. In addition, Baio showed that AFP/Getty continued to distribute Morel's photographs, without a licensing agreement, for months after ownership of the images became evident. 

The attorney for Agence Press, [name indistinct], then took the podium, first explaining to the jury the workings of his company—one of the “two largest photo agencies in the world”—and their mission to support their staff photographers and stringers through an aid-giving foundation. He then presented a few financial charts showing the gross revenue AFP/Getty received from the unauthorized franchising of Morel’s photos, which were erroneously attributed to someone named Lisandro Suero, who is not a photographer and was never in Haiti. Wrapping up this section of his opening remarks, the attorney stated that Morel had failed to market his photographs on his own or through Corbis (which periodically handled his images), beyond a single $500 sale. The message conveyed by the attorney was that AFP/Getty did Morel a favor by making unauthorized sales amounting to nearly $18,000, and that Morel should be happy with a settlement of roughly $20K that AFP is prepared to offer.

Among the thoughts that occupied me during the breaks were: Can attorney Baio convince the jurors that 1) the truth of photojournalism is far different than the information conveyed in a snapshot and 2) the importance of fact checking crowd-sourced information and images during traumatic events? Will the mysterious Lisandro Suero, who the attorney for AFP identified as the real culprit in the theft of Morel’s photographs, appear to present evidence, or, will his identity and his actions ever be explained? And how can the two sides convincingly reconcile this wild card in their arguments?

I had to leave before the attorney for Getty Images made his/her opening remarks, but I urge New York subscribers concerned with copyright issues who are able to steal a morning or an afternoon, to attend the trial and witness this important case as it unfolds. The process of justice being served is a remarkable feature of American life and seeing it live is nothing like reading a transcript or an account such as this. The trial is estimated to continue for six more days, at the Thurgood Marshall Courthouse, 40 Foley Square, Room 506, NY, NY. Directions. Afternoon sessions run from 2 to 5 pm. Please note that cameras and digital devices are not permitted in the courtroom; plan to allow about 15 minutes to clear security. For information and updates about the proceedings, see the Daniel Morel vs. AFP and Getty Images Facebook page. Photo: Peggy Roalf.

This just in: Jeremy Nicholl reports, Daniel Morel to testify starting 9.30am. Then Vincent Amalvy, the AFP editor who downloaded the photos and put them on the AFP system, will be questioned after lunch. Information.