Counting the cost of bringing copyright action
HAITIAN photographer Daniel Morel was rightly praised for standing up for his rights and in the end winning $1.2 million from Agence France Press and the Getty agency for massive abuse of eight of his pictures of the earthquake that devastated Port au Prince on 12 January 2010, as reported in the November 2013 Freelance. But now Photo District News has reported on the economics of bringing the case.
Judge Alison J. Nathan of the US District Court in New York City has rejected a motion by Morel and his attorneys to recover $2.5 million in legal fees and costs incurred during his five-year court battle. Willkie Farr & Gallagher, the law firm that tried Morel's case on a "contingency" basis, must be content with 15 percent of the jury award - $180,000. The judge also ruled that Morel must pay $164,583 in legal fees and expenses to Barbara Hoffman, the attorney who originally represented him in the case. He was in early June still waiting for the $1.2 million.
The judge ruled that the defences put by AFP and Getty "raised a relatively novel issue" and "helped define the contours of copyright law in the digital age" by testing the application of copyright law to social media. So Morel's laywers bear the costs of entering new legal territory.
The law of England and Wales is that the losing party generally bears all the costs of a case. Joseph Baio, one of Morel's lawyers described this principle as "alien to" US law. But "I had a gas trying the case... we do enough other business at this firm so it won't break the bank." Future victories in US law will depend on a sufficient supply of lawyers willing to work on that basis.
And closer to home...
On a much more modest scale, we have a reminder that even the Small Claims track in the English and Welsh courts it not without its risks. It should cost just £70 to file a claim for amounts between £500.01 and £1000 and you should get that, and the £80 hearing fee and certain expenses such as for travel, back from the defendant - if the court finds in your favour.
Recently an NUJ member went to court, and the judge didn't think the infringement was worth what the member did, and awarded less than a previous offer made by the defendant. So the member didn't get their costs. They were fortunate that the defendant - who was represented by a lawyer - did not ask for their costs, otherwise the member would have had to pay those as well. So think very hard if the other side makes an offer before the hearing.