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Summary:

When can news outlets use photos they find on Twitter? A jury’s $1.2 million award to a photographer over unauthorized use of photos from the Haiti earthquake is likely to give editors heartburn.

Photographer
photo: Lisa A

A closely-watched trial between a photographer who covered the 2010 Haiti earthquake and two large news companies ended on Friday, with a jury awarding Daniel Morel $1.2 million, according to reliable reports from Manhattan’s federal court.

The case is important because it has helped to establish rules for the use of photos in the age of social media, when a single image can be rapidly republished thousands of times.

The dispute began after news agency Agence France-Presse saw the “exclusive photos” of the disaster on Twitter, and shared them with Getty Images and the Washington Post, which in turn posted the pictures to the Post’s website. It soon emerged that the photos did not belong to the Twitter user who had posted them, but instead to Morel (AFP posted a “kill notice” but Getty disregarded it).

Early in 2013, a federal judge rejected the media outlets’ arguments that Twitter’s terms of service gave them a general right to use the photos (though the Twitter terms do appear to cover acts like retweets or embedding). The Washington Post agreed to settle the case in October, but AFP and Getty pressed on to trial.

In New York, the case has been a rallying cry for photographers, who have decried the effects of the internet and Buzzfeed-style viral sharing on their profession and the integrity of their works. Many attended the trial and created a Facebook page to follow it.

Friday’s jury award also reportedly included additional amounts for Getty’s violation of DMCA provisions related to altering copyright notices.

The outcome, however, is unlikely to provide any solutions to a troubled copyright regime that frequently proves ill-suited for the digital age.

The trouble stems, in large part, from the statutory damages system that allows copyright owners to seek up to $150,000 per work — a situation which has led to an epidemic of so-called trolling, in which legal sharks comb the internet for people using unauthorized works and demand settlements that cost slightly less than it would to defend the suit. Ironically, Getty Images — the defendant in this case — appears to have a side business with law firms in this very trolling venture.

On the other hand, photographers and other artists decry that a mushrooming conceptions of “fair use” has led well-funded viral sites like BuzzFeed to simply help themselves to the content they want and simply declare it “transformative.”

The Morel case turned on a number of technical arguments about licensing and statutory damages; Venkat Balasubramani has a good rundown here on the Technology and Marketing Law Blog.

  1. Incredible

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  2. Just a point of curiosity, what’s with the image of the girl holding a camera? Seems irrelevant to the story.
    Additionally, if her face was anymore “touched up”, she would look like a CGI rendering. Actually, that’s exactly what she looks like. A CGI rendering.

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  3. I’m on the side of the photographers, not the idiot sites like Buzzfeed that are leeches.

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  4. It couldn’t happen to a more arrogant troll like Getty, having been attacked by them. In our case, our client misappropriated images but it didn’t stop them. Ultimately our clear paper trail vindicated us. It’s not surprising they chose to ignore the takedown.

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