Daniel Morel, a professional photographer, captured some of the first shots of the January 2010 earthquake in Haiti. Morel uploaded his earthquake photos on Twitpic and posted a link to them on his Twitter account. Lisandro Suero then copied Morel’s photos (without Morel’s knowledge or permission) and posted them on his Twitpic page and tweeted that he had “exclusive photographs of the catastrophe for credit and copyright.” An editor of AFP (Agence France Presse, a French news agency), Vincent Amalvy, attempted to contact both Morel and Suero. Before Morel could respond, AFP copied thirteen (13) of Morel’s photos onto its Image Forum and transmitted them to Getty for licensing and marketing in North America and the U.K. To make matters worse, the photos were attributed to Suero in the photo credit (“AFP/Getty/Lisandro Suero”).
In response to Morel’s attorney’s cease and desist letter, AFP filed a declaratory judgment lawsuit against Morel for non-infringement and license (AFP also included a claim for commercial defamation). A photographer risks being brought into a lawsuit after sending a C&D, because the alleged infringer can ask the court to determine whether a violation has occurred. The plaintiff (AFP here) thus asks the court to “declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. 28 USC 2201. [Shepard Fairey also filed a "dec" action and Lloyd Shugard was on the receiving end of a declaratory judgment action but won $1.3 million for his counterclaim for copyright infringement in that case.] The pros to a declaratory judgment action is that AFP pays the filing fee ($350) and has the burden of going forward in the lawsuit. The potential cons are that AFP choses the forum (in which court to file the suit) that might be inconvenient and not the most favorable to the photographer (but the court must have jurisdiction over the photographer) and the photographer then has to defend his claim in court. While the photographer (if a sole proprietor) can represent himself, it’s usually not wise. Therefore, the photographer has to pay the attorneys’ fees and expenses.
After AFP filed its “dec” action, Morel filed Counterclaims (part 1) (part 2) (part 3) (part 4) (part 5) (part 6) (the exhibits are not included here) against AFP, Getty, CBS, ABC (now settled), Turner, and others for copyright infringement. The counterclaim defendants then filed a motion to dismiss Morel’s claims pursuant to Federal Rule of Civil Procedure 12 (b)(6). In sum, the motion to dismiss may be granted only if, accepting all of Morel’s allegations in his counterclaims as true, and viewing them in the light most favorable to Morel, Morel is not entitled to relief.
After the court considered the briefs, it denied most of AFP’s motion to dismiss. Venkat Balasubramani over at the Technology & Marketing Law Blog does a great job of analyzing the court’s order and provides a copy of the order there. Of great interest is the court’s finding that Morel’s name (“by photomorel,” “daniel morel,” and “morel”) next to (rather than directly on) his photos when he uploaded to Twitpix constitutes copyright management information (“CMI”) under the DMCA.
This result is good for photographers, but the war is not over. The court’s denial of the motion to dismiss means only that the case goes forward — it does not mean that Morel wins. Stay tuned!
Update: Also check PDN’s article by David Walker on the same case for more information.