Agence France Presse v. Morel

• Decision Date: 21 May 2013
• Docket Number: No. 10 Civ. 02730(AJN).,10 Civ. 02730(AJN).
• Citation: 934 F.Supp.2d 584
• Parties: AGENCE FRANCE PRESSE, Plaintiff, v. Daniel MOREL, Defendant v. Getty Images, Inc., et al., Counterclaim Defendants.
• Court: U.S. District Court — Southern District of New York

934 F.Supp.2d 584

AGENCE FRANCE PRESSE, Plaintiff,

v.Daniel MOREL, Defendant

v.Getty Images, Inc., et al., Counterclaim Defendants.

No. 10 Civ. 02730(AJN).

United States District Court, S.D. New York.

May 21, 2013.

Joshua J. Kaufman, Venable LLP, New York, NY, Elissa Brockbank Reese, Meaghan Hemmings Kent, Venable LLP, Washington, DC, for Plaintiff.

Emma Jane James, Joseph Thompson Baio, Willkie Farr & Gallagher LLP, New York, NY, Jaime G. Touchstone, Futterman Dupree Dodd Croley Maier LLP, San Francisco, CA, for Defendant.

James Eric Rosenfeld, Marcia Beth Paul, Samuel Bayard, Davis Wright Tremaine LLP, Amin S. Kassam, Devore & Demarco, L.L.P., New York, NY, for Counterclaim Defendants.

MEMORANDUM AND ORDER

ALISON J. NATHAN, District Judge:

On January 14, 2013, this Court issued an opinion in the above-captioned case granting partial summary judgment to Defendant Daniel Morel (“Morel”) and denying summary judgment to Plaintiff/Counterclaim Defendant Agence France Presse (“AFP”) and Third–Party Counterclaim Defendants Getty Images (US), Inc. (“Getty”), and The Washington Post Company (“the Post”) (collectively, “Counterclaim Defendants”). Agence France Presse v. Morel, 934 F.Supp.2d 547, 2013 WL 146035 (S.D.N.Y.2013). On February 8, 2013, Counterclaim Defendants moved for reconsideration of Section E.1 of that decision, (Dkt. No. 200), which discusses statutory damages under § 504(c) of the Copyright Act. See17 U.S.C. § 504(c). Specifically, Counterclaim Defendants requested reconsideration of the portion of Section E.1 in which the Court concluded that “AFP and Getty are, at most, each liable for a single statutory damages award per work infringed.” Morel, 934 F.Supp.2d at 582, 2013 WL 146035, at *29.

At a conference on February 22, 2013, the Court determined that the motion for reconsideration standard had been met and ordered supplemental briefing with regard to the question whether, as a matter of law or fact, Morel could be entitled to recover one statutory award per work infringed from AFP and one from Getty, for a total of two awards per work infringed. Finally, on May 7, 2013, the Court heard oral argument on these supplementary submissions. The Court now concludes that, pursuant to § 504(c) of the Copyright Act and as this action has been structured, pled and litigated, Morel is, at most, entitled to receive one award of statutorydamages per work infringed in this action.

The Court assumes familiarity with the facts of this case and with the opinion now under reconsideration. Having already determined that reconsideration was appropriate, the Court will limit the current discussion to the merits of the precise issue under review.

I. The Court's Previous Holding and the Question Presented for Reconsideration

In relevant part, the Court's summary judgment opinion addressed the question whether an infringer (or group of joint infringers) could be held liable for multiple statutory damages awards based on the infringement of a single copyrighted work if that party was jointly liable with a number of other infringers who were not, themselves, jointly liable with one another. Morel, 934 F.Supp.2d at 579–82, 2013 WL 146035, at *26–29. The Court held that the liability of an individual or group of individuals for the infringement of any single work could not be multiplied by the number of separate end-point infringers with whom that individual or group was jointly liable. Id. at 581–82, at *29 (“The Court concludes that any award of statutory damages against AFP or Getty may not be multiplied based on the number of infringers with whom AFP or Getty is jointly or severally liable.”).

At issue on reconsideration is the concluding line of the section of the Court's opinion discussing statutory damages under the Copyright Act, which stated that “AFP and Getty are, at most, each liable for a single statutory damages award per work infringed.” Id. Counterclaim Defendants argue that this line could be interpreted as allowing Morel to recover more than one statutory award per work infringed in this action, which they argue is incorrect both as a matter of law and under the facts of this case. Practically speaking, Counterclaim Defendants request that the Court clarify whether they are potentially liable for eight statutory damages awards or for sixteen. More specifically, however, the issue on reconsideration is whether, as a matter of law or fact, Morel could elect to pursue one statutory award per work from AFP, alone, for its individual pre-kill notice conduct and a separate statutory award for that same work from Getty for its individual post-kill notice conduct.¹

The Court concludes, as a matter of law, that, in cases such as this, 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. As with individually liable infringers, the statute authorizes a single statutory award per work for all infringements in an action against jointly and severally liable infringers, regardless of temporal or causal breaks in the course of those parties' infringement of a given work. Moreover, the Court concludes that even were the statute amendable to Morel's interpretation, under the facts of the case, taken in the light most favorable to the non-moving party, no reasonable jury could conclude that the kill notice that AFP sent to Getty was sufficient to causally sever Getty's post-kill notice conduct and create an independent infringement of Morel's works.

II. The Parties' Arguments

In their motion for reconsideration, Counterclaim Defendants argue that “Morel is, at most, entitled to a single statutory damages award per work infringed for a total of eight (8) statutory damage awards against Defendants jointly.” (Defs. Br. 6) They argue that this conclusion is correct as a matter of law and fact because: (1) “[n]othing in the statute, legislative history, or case law supports Morel's view that the joint-and-several liability limitation in § 504(c)(1) is optional at the election of the plaintiff,” (Sup. Reply 2 (emphasis in original)); and (2) even if Morel's reading of the statute was plausible legally, “the undisputed facts establish that there was a single course of infringement,” and “any dispute about the sufficiency of the kill notice goes at most to AFP's and Getty Images' state of mind, not to whether a new series of unrelated infringements commenced.” (Sup. Reply. 1, 4)

Morel's original position on this motion was that he could seek to recover one statutory award per work from AFP and Getty (as a unit) for their joint infringement and, in addition, recover another statutory award per work from Getty (alone) for its individually wrongful post-kill notice conduct. In his supplementary brief, however, Morel disclaimed his original position and instead “submit[ted] that he is entitled to seek one statutory award per work from AFP for its conduct and one statutory award per work from Getty for its individual violations of the Copyright Act, for a total of up to sixteen awards.” (Morel Sup. Br. 1 (emphasis in original)) Morel's position now is that he may present and argue to the jury that he is entitled to one award per work against AFP for its individual conduct—“acquiring wrongfully Mr. Morel's images, disseminating [them] and licensing [them] to other parties,” (Tr. 6: 15–17)—and a separate award per work against Getty for its post-kill notice conduct, which, Morel argues, constituted “an independent act on [Getty's] part to engage in a series of licensings that it had no right to do.” (Tr. 12: 1–3)

III. Discussion

“The Copyright Act provides that a copyright owner may elect to receive statutory damages, rather than actual damages, any time before final judgment is rendered.” Morel, 934 F.Supp.2d at 579, 2013 WL 146035, at *26 (citing 17 U.S.C. § 504(c)(1)). Specifically, the relevant language of the statute provides that:

[T]he copyright owner may elect at any time before final judgment is rendered, to recover, instead of actual damages and profits, 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 any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.

17 U.S.C. § 504(c)(1). Pursuant to § 504(c)(2), the maximum award of statutory damages may be increased from $30,000 to $150,000 on a showing of willfulness. 17 U.S.C. § 504(c)(2).

As discussed in the summary judgment opinion, although the “statutory text is not a model of clarity,” its intent “appears to be to constrain the award of statutory damages to a single award per work, rather than allowing a multiplication of damages based on the number of infringements.” Morel, 934 F.Supp.2d at 580, 2013 WL 146035, at *27. Indeed, the central tenet of the at-issue portion of this Court's opinion was that § 504(c) “provides generally for a single award of statutory damages ‘for all infringements involved in the action,’ as to any one work.” Morel, 934 F.Supp.2d at 581, 2013 WL 146035, at *28 (quoting 17 U.S.C. § 504(c)(1)). Although the question now before the Court is different from the one it addressed in its earlier opinion, the statutory language and legislative intent of § 504(c), as well as relevant precedent, again exhort adherence to this same tenet. Accordingly, as noted above, the Court determines that Morel's contention that he may, in this action and with respect to the same work, elect to seek one statutory award from AFP and a separate statutory award from Getty, even though he could alternatively elect to seek a joint and several liability award against them both, fails as both a matter of law and fact.

A. Morel's Argument Fails as a Matter of Law

Morel argues that under ...