Morel vs. AFP/Getty, From the Floor

By Peggy Roalf   Wednesday November 20, 2013

Last Thursday I reported on proceedings at the opening day in the Daniel Morel vs. Agence France Presse (AFP)/Getty Images trial, which continues in the Thurgood Marshall Courthouse at Foley Square. This is the penalty phase in the copyright infringement case brought against the two media giants by Danial Morel, a photojournalist who was on the ground during the Haiti earthquake of 2010, and who was one of the first to cover the catastrophe.

With closing arguments from both sides anticipated for tomorrow, following is a capsule report of proceedings by the Editorial Photographers of the United Kingdom & Ireland [EPUK]. I’d like to congratulate Jeremy Nicholl on his reporting; it reads like a cliffhanger.

The photographs by Daniel Morel shown here were distributed by Getty Images and AFP in breach of Morel’s copyright. All photos © Daniel Morel

DAY 2: Morel vs. AFP/Getty Images – Thursday, Nov 14th, 2013

Prompted by his attorney Joseph Baio, Morel explained his reasons for uploading un-watermarked high resolution images to TwitPic: with limited electricity available from a hotel battery Morel feared communications would be permanently cut off at any moment. “I never thought AFP would steal my pictures,” he concluded. “I thought they were professionals. It was as if I got stabbed in the heart because [Lisandro] Suero and AFP stole this moment.”

Joseph Baio’s afternoon cross-examination of Vincent Amalvy [AFP editor] could not have been more different. The bespectacled, greying Baio cuts an avuncular figure with a rather professorial air: he could be your favorite uncle. This led some Morel supporters in the public benches to underestimate him. “He’s not very demonstrative,” said one. “He needs to be more aggressive,” said another.

The act presumably had the same disarming effect on Amalvy. For the first half hour or so Morel’s attorney and the AFP editor discussed Amalvy’s working history with the aid of a French translator, and to the casual observer this didn’t appear to be going anywhere. “Let’s get to the night of the earthquake,” invited Baio.

Suddenly it became clear that Baio had been gently leading Amalvy along a path into a walled garden before quietly locking the gate while no-one was looking. He then produced a knife and began to shred Amalvy and his testimony….

DAY 3: Morel vs. AFP/Getty Images – Friday, Nov 15th, 2013

“Your Honor he is fighting me tooth and nail. So I ask that I can treat him as a hostile witness. I’m asking very simple questions.” … Baio was halfway through an eight hour grilling of AFP editor Vincent Amalvy, the man who downloaded Morel’s images from TwitPic and distributed them through the news agency’s network.

After a catastrophic performance in the witness stand the previous day, Amalvy had clearly been briefed overnight to stonewall Baio’s cross examination as much as possible. But the tactic had little effect on the barrage of questions as the attorney picked his way through the evidence: Baio was simply relentless. And if Amalvy refused to answer Baio appealed to the judge for help. “Mr. Amalvy,” Judge Nathan directed, “You do have to directly answer the questions that are posed of you.”

The answers, when they finally came, were all bad for Amalvy and his employers. … 

DAY 4: Morel vs. AFP/Getty Images – Monday, Nov 18th, 2013

Day four of the Daniel Morel vs Agence France Presse and Getty Images copyright infringement trial revealed a new defence strategy: total memory loss. …

It was Francisco “Pancho” Bernasconi, Senior Director of Photography News and Sports at Getty Images, who revealed his agency’s new amnesia strategy when he finally took the stand in mid-afternoon. Bernasconi began by professing a surprising level of disinterest in both the images his agency was distributing from Haiti at the time of the earthquake, and those produced by Getty rivals.… But it was when Baio’s questions became more specific that Bernasconi was hit by an apparent wave of amnesia.

Whatever the subject – emails he had received, emails he had sent, rival images from Haiti, even his own AFP partner’s images from Haiti – Bernasconi’s responses resembled nothing so much as a jazz musician riffing endless variations on a theme. “I have no recollection.” “I don’t know.” “I have no memory of that sir.” I don’t remember receiving a kill notice.” “I assume I did but I don’t remember.” “I don’t recall being troubled.”

Surely, Baio suggested, indicating the most famous of the Morel images, Bernasconi must recall having seen it on the night of January 12th 2010? After all, Getty were distributing it. … Bernasconi furrowed his brow. He thought hard. He scoured his memory. Suddenly his face brightened: “I remember seeing it at World Press Photo.”

DAY 5: Morel vs. AFP/Getty Images, Tuesday, Nov 19th, 2013

Day five of the Daniel Morel vs Agence France Presse and Getty Images copyright infringement trial featured a minor medical miracle. ...

Happily [Francisco “Pancho” Bernasconi, Senior Director of Photography News and Sports at Getty Images] managed a full recovery overnight: when faced with his own attorney Marcia Paul he displayed impressively clear recall of the very events that had caused him such difficulty the previous day. So loquacious was the newly recovered Bernasconi that at one point Judge Nathan even intervened to ask him to speak more slowly. However Bernasconi’s recovery did not escape Baio’s attention. “How do you know that Getty had their own photos from Haiti?” he demanded. “You say you saw them on the Getty website on January 13th 2010, but yesterday you couldn’t recall being on the Getty website on January 13th 2010.” …

Getty’s defence strategy has essentially three strands. The first is to blame their partners AFP for the original infringements as suppliers, and to further blame AFP for any delay in killing image distribution. The second is to blame Morel’s agency Corbis [which licensed Morel’s images from the earthquake] for causing a delay in killing image distribution by not providing sufficient information on the ongoing infringements. And the third is to head off any large award by the jury to Morel by illustrating that images from the Haiti disaster were licensed for relatively low editorial fees. These were in stark contrast to the evidence produce by the Morel team of Getty revenues in 2010: over $61 million in subscription fees alone. ...

The trial continues today; closing arguments are expected Thursday.

Read the entire EPUK report, which includes links to the live court courtroom feeds.

Read EPUK’s pre-trial review: Agency Reputations at Stake in Historic Copyright Trial

Read my report on Day 1 of the trial in DART.

Follow the trial on the Daniel Morel vs. Agence France Presse/Getty Image Facebook page.