Litigator of the Week: Joseph Baio of Willkie Farr & Gallagher
Joseph Baio recalls hearing a collective gasp inside Room 506 of the federal courthouse in downtown Manhattan last Friday, when U.S. District Judge Allison Nathan read the jury's verdict in a groundbreaking case against Agence France Presse and Getty Images Inc. The companies had willfully infringed copyrights to eight photographs, the jury found, awarding Baio's client, a Haitian freelance photojournalist named Daniel Morel, the maximum fine of $1.2 million under the Copyright Act. Jurors also held that the two violated the Digital Millennium Copyright Act by falsifying or altering copyright management information on Morel's photographs, tacking on $20,000 more in damages.
Morel reached over to embrace Baio, cochair of Willkie Farr & Gallagher's business litigation group, and second chair Emma James, a Willkie associate. For Morel, the verdict capped a three-and-a-half-year battle. When a 7.0 earthquake struck Haiti in January 2010, Morel had taken out his camera to record the aftermath. With phone lines obstructing normal transmission, a friend helped the Port Au Prince–based photojournalist post the photos on Twitter and a related service, Twitpic. A Twitter user in the Dominican Republic retweeted the photos without crediting Morel, and then an AFP editor spotted the photos and uploaded the images to AFP and Getty Images wires. They were soon splashed across the front pages of hundreds of newspapers and news sites worldwide, credited to the wrong person. When the mistake was later uncovered, the AFP and Getty Images rebroadcast eight of the photos under Morel's name.
Morel's pictures of dazed residents amid the rubble would eventually win him World Press Photo foundation awards. But there was a big problem: AFP and Getty Images never had licenses to use any of them. Morel's lawyer sent the agencies cease and desist letters, prompting AFP to sue Morel in March 2010 for a declaratory judgment that the agency had not infringed. AFP also alleged that Morel had defamed the agency. Morel hired Manhattan solo practitioner Barbara Hoffman and filed a counterclaim.
Hoffman won an important initial victory in January, when Judge Nathan ruled that Getty Images, AFP and The Washington Post were liable for infringing Morel's copyrights. (The Post, along with CNN, CBS and ABC, later reached confidential settlements with Morel.) In one of the first decisions weighing the use of copyrighted images on social media, Nathan rejected the news organizations' defense that under Twitter's terms of service, Morel had granted them a license to use the photos when he tweeted them to the world.
Baio's job was to demonstrate to a jury that the infringement was willful, as opposed to an innocent mistake, or something in between. He had been helping on the case since 2010 and was tapped as lead trial counsel in January. Arrayed against him was a group of Venable lawyers led by Joshua Kaufman for AFP and a Davis Wright Tremaine team led by Marcia Paul for Getty Images. Both are senior IP litigators, and Kaufman heads Venable's copyright and licensing group.
Baio is a major photography collector with 3,000 images in his collection, but before this case he had handled exactly one copyright suit in his 35-year career. He defended the music file-sharing service Lime Wire and its founder against infringement claims by the Recording Industry Association of America and other music industry plaintiffs. The RIAA initially claimed a staggering $75 trillion in damages. Ultimately, Baio struck a $105 million settlement mid-trial. (Ironically, in her summary judgment decision in AFP v. Morel, Nathan cited a Lime Wire decision in limiting Morel to one statutory damage award per work.)
Getty and AFP's defense teams worked to wear down Morel's case, filing seven motions in limine and successfully convincing the judge to bar testimony related to the fact that AFP had been the first to sue. But Baio, over defense resistance, was allowed to introduce information about the $3.3 billion valuation of Getty Images as well as the size of AFP's subscription base. He was also permitted to introduce testimony on the broad extent to which both agencies had disseminated Morel's photographs.
Morel's case became a cause célèbre among photojournalists worldwide, who viewed it as a test case delineating the extent of copyright protection for images carried by social networks. In his closing statement, Baio characterized the lawsuit as a David-versus-Goliath struggle. "They asked you why would AFP and Getty Images do this? … They love photographers. Let me give you an answer. …: They did it because they could. They did it because they are AFP and Getty Images, the biggest guys on the block. And when Mr. Morel said, no, I don't want you to sell these, they said you should take $275, $200 a picture."
Baio's message appeared to be persuasive with jurors. The infringement "was obviously willful on AFP's part because they didn't check on the author of the photographs. The whole mess stemmed from that," one juror told Photo District News. "They wanted to scoop that [earthquake] story, and after they had published the images crediting the wrong guy, they said to themselves, 'We'll just try to to get permission from the real [photographer] later.'"
Many photojournalists saw the verdict as a triumph. "This ruling is important because far too often we find that photographers don't have the power to stand up to those that infringe with impunity," the National Press Photographers Association general counsel Mickey Osterreicher told The New York Times.
Baio said he has received minimal payments from Morel to date, and that the work was a labor of love—though never pro bono. "We as his counsel believed in his cause," Baio said. As a result of the jury verdict, Baio said, he and Hoffman are now able to apply to the court for attorney fees and expenses, which Baio says will be significant. It will be up to the judge to evaluate the ultimate fee award.