A key concept in sales and marketing is the "funnel"…
“He has to show you evidence that he lost money, that what defendants did caused him economic injury. He is asking you, as you’ll see, to make him the best paid news photographer on the planet ever.” (emphasis mine)
In the aftermath of the 2010 Haitian earthquake, which killed well over 100,000 people, Morel took the following photo and posted it via Twitpic, whose terms of service (TOS) stipulate that the user retains all copyright, and people seeking to distribute an image must have the explicit consent of the owner.
AFP and Getty subsequently downloaded the photo and started selling it through their newswire for prices of $45 and $9 without his permission. (EPUK has a great summary of the trial proceedings.) The judge had ruled prior to the trial that the TOS precluded Getty & AFP from distributing the image, so the trial revolved around whether Getty & AFP willfully infringed Morel. The jury agreed that Morel suffered economic injury, and awarded him $1.2m for willful infringement – the maximum statutory award under Title 17 USC § 504(c) – plus $20,000 for DMCA violations that stemmed from improperly adding false copyright management information.
The best paid news photographer could have made a down-payment the Jony Ivy-designed Leica (RED) camera that sold over the weekend for $1.6m, but instead, he is planning to return to Haiti to work on a book about the earthquake and another about the trial.
PhotoAttorney’s Carolyn Wright weighed in on the verdict, “The jury’s verdict is surprising but refreshing since few juries award maximum damages. The award for willful infringement appeared primarily as a result of AFP and Getty’s continued failure to rectify its mistakes. The verdict gives hope to photographers that juries will recognize when their rights are disregarded.”
Wright further explained that the order isn’t binding to any other court, but as “persuasive authority,” other courts may consider the ruling with respect to Twitter and Twitpic’s terms of service. Congratulations to Morel and his team on a hard-fought battle. I’m happy for him to claim the title of “best paid news photographer on the planet ever.”
In other copyright news, toy maker GoldieBlox create a viral video parodying the lyrics of the Beastie Boys’ “Girls,” and then preemptively sued the group to defend their right to fair use. The Beastie Boys penned an open letter declaring that “we made a conscious decision not to permit our music and/or name to be used in product ads” even though they praised the ad’s creativity and message of empowerment. Deceased member Adam Yauch’s last will and testament in 2012 allegedly contains the clause “Notwithstanding anything to the contrary, in no event may my image or name or any music or any artistic property created by me be used for advertising purposes,” according to Rolling Stone.
The Internet seems split on the issue.
I’m no lawyer, but as the Beastie Boys pointed out, GoldieBlox is a commercial enterprise selling a product. And unlike a fair use parody which might make a social or political statement, I believe the artist retains the right to control how his/her work is used commercially.