Agence France Presse v. Morel, U.S.D.C., S.D.N.Y., May 21, 2013

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District court, on motion for reconsideration, holds that photographer is entitled to only a single award of statutory damages per infringed work, rather than separate awards from each defendant jointly and severally liable for copyright infringements.

On motion for reconsideration, the district court addressed the sole issue of the number of statutory damage awards a claimant may pursue for copyright infringement under the Copyright Act. In a prior ruling, the court granted partial summary judgment in favor of photographer Daniel Morel on his counterclaims for copyright infringement and denied summary judgment to counterclaim defendants Agence France Presse, Getty Images, Inc. and the Washington Post Company. AFP and Getty filed a motion for reconsideration of a single section of the summary judgment decision, in which the court discussed statutory damages and concluded that “AFP and Getty are, at most, each liable for a single statutory damages award per work infringed.” Following supplemental briefing and oral argument, the district court clarified its earlier ruling, concluding that “a plaintiff seeking statutory damages for copyright infringement may not multiply the number of per-work awards available in an action by pursuing separate theories of individual liability against otherwise jointly liable defendants.”

The district court examined the provision in Section 504(c)(1) of the Copyright Act providing that a copyright owner may elect, instead of actual damages, “an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which two or more infringers are liable jointly or severally[.]” Relying on that provision’s use of the conjunction “or,” Morel argued that he should be allowed to seek one statutory award from AFP for its wrongful appropriation and downstream licensing for each infringed work and, separately, one award per work from Getty for licensing the same photographs after AFP issued a kill notice directing Getty to cease using or licensing the works. The court rejected Morel’s interpretation, finding that the statute’s use of the word “or” refers to a plaintiff’s election between actual and statutory damages and does not permit a plaintiff to seek separate awards for infringement of the same work from parties that are jointly and severally liable for the infringement. Although Morel contended that AFP’s kill notice constituted a causal break in the infringement, the court held that a causal or temporal break in the infringement does not, as a matter of law, entitle a plaintiff to collect additional damage awards. Where two or more infringers are jointly and severally liable for any number of infringements, Section 504(c)(1) provides for a single award per work infringed – regardless of the manner or causal connection of the infringements.

After rejecting Morel’s argument as a matter of law, the court found that Morel’s distinction between defendants’ pre-kill-notice and post-kill-notice conduct also failed under the facts of the case. The defendants’ conduct included distribution of “the same photos, obtained from the same source, through the same medium” and no reasonable jury could conclude that the conduct constituted “separate infringements” for which Getty and AFP would be other than jointly and severally liable.