Agence France Presse v. Morel

• Citation: 934 F.Supp.2d 547
• Decision Date: 21 May 2013
• Docket Number: No. 10 Civ. 02730 (AJN).,10 Civ. 02730 (AJN).
• 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 547

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.

Jan. 14, 2013.

Order On Reconsideration in Part May 21, 2013.

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

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

James Eric Rosenfeld, Davis Wright Tremaine LLP, New York, NY, for Counter Defendants.

OPINION

ALISON J. NATHAN, District Judge.

On March 26, 2010, Plaintiff Agence France Presse (“AFP”) filed a Complaint against photographer Daniel Morel seeking a declaration that AFP had not infringed Morel's copyrights in certain photographs and alleging commercial defamation. (Compl.¶ 3). In response, Morel filed counterclaims against AFP, Getty Images, Inc. (“Getty”), and the Washington Post (the “Post”),¹ asserting that AFP, Getty, and the Post (collectively, “Counterclaim Defendants”) have willfully infringed his copyrights, and that AFP and Getty are secondarily liable for the infringement of others and have violated the Digital Millennium Copyright Act (“DMCA”). ( See Dkt. No. 80).² The parties now have filed cross-motions for summary judgment regarding liability on the copyright and DMCA claims, as well as certain legal questions regarding how damages are to be assessed should liability be found.

I. BACKGROUND

The Court has undertaken a thorough review of the record, particularly the evidence cited in the parties' 56.1 statements and counterstatements. See Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 292 (2d Cir.2000); see also 24/7 Records, Inc. v. Sony Music Entm't, Inc., 429 F.3d 39, 46 (2d Cir.2005) (noting that courts are not required to consider what the parties fail to point out in their 56.1 statements, although they may exercise their discretion to do so); Charter Oak Fire Ins. Co. v. Tri–County Fire & Safety Equip. Co., 636 F.Supp.2d 193, 197 (E.D.N.Y.2009) (“[I]t is only those portions of the record submitted in connection with a motion to which the court's attention is specifically directed, that the court is obligated to consider in determining whether a material issue of fact exists.”). On careful consideration of the evidence, the following facts and disputes of fact appear from the record.³

A. Morel Tweets Photos of the 2010 Haiti Earthquake

On January 12, 2010, a devastating earthquake struck Haiti. (Morel SMF ¶ 12; CC Def. CSMF ¶ 12; Morel Decl. ¶ 11). Morel, a photojournalist, was on scene and captured a number of images of the aftermath. (Morel SMF ¶¶ 1, 13; CC Def. SMF ¶ 1, 13; Morel Decl. ¶¶ 2, 12–14). Morel then posted his photographs to Twitter through a TwitPic account. (Morel SMF ¶¶ 17, 21; CC Def. CSMF ¶¶ 17, 21; Morel Decl. ¶¶ 16, 19, 22; Hoffman Decl. Ex. U at Twitpic001–002).

The parties dispute—and the evidence is contradictory—as to precisely when Morel uploaded these photos.⁴ Morel contends that he uploaded them between 6:13 pm and 7:28 pm on January 12, 2010, an assertion supported by his declaration (Morel Decl. ¶¶ 22) and certain documentary evidence (Hoffman Decl. Ex. B, Morel Dep. Ex. 16 at 109). Counterclaim Defendants argue that he did so precisely three hours later, between 9:13 and 10:28 pm, and rely on other documentary evidence and deposition testimony establishing this timeline. (Hoffman Decl. Exs. U at TwitPic 18–20, Y; Winecoff Dep. at 12:17–13:3). Counterclaim Defendants' position as to the timing of these events is, however, undercut by e-mails indicating Morel's pictures were posted on the timeline he describes. (Morel SMF ¶¶ 41, 47; CC Def. CSMF ¶¶ 41, 47; Morel Decl. ¶¶ 22, 36–37; cf. also CC Def. CSMF ¶¶ 30–31). Based on the evidence before it, the Court cannot conclusively resolve the precise timing of these events. Regardless, shortly after Morel posted his pictures online—between 6:53 pm and 7:51 pm, if Morel's timeline is accepted, or between 9:53 pm and 10:51 pm per the evidence presented by Counterclaim Defendants—they were reposted to the Twitter account of Lisandro Suero, who tweeted that he had exclusive photographs of the earthquakes. (Morel SMF ¶¶ 28–29, 38; CC Def. CSMF ¶¶ 28–29, 38; Hoffman Decl. Exs. B, Morel Dep. Ex. 16 at 109; Hoffman Decl. Ex. U at Twitpic 0002–0003, 0018–020).

B. AFP Obtains Morel's Photos

Also on January 12, 2010, Vincent Amalvy, the Director of Photography for North America and South America at AFP was searching for photographs of the aftermath of the earthquake in Haiti. (CC Def. SMF ¶¶ 122, 124; Morel CSMF ¶¶ 122, 124; Amalvy Decl. at ¶¶ 2, 4). For example, at 7:12 pm he sent a link to the results of a PicFog search of the term “Haiti” to AFP's photo desk at wapix @ afp. com; later that hour, he sent images of the earthquake in Haiti (not captured by Morel) to this same address. (Morel SMF ¶¶ 31, 36–37; CC Def. CSMF ¶¶ 31, 36–37; Amalvy Dep. at 80:9–18, 98:2–99:8, 131:16–132:6; Hoffman Decl. Ex. E at AFP000833–834). Once a photo is provided to AFP's photo desk, it is loaded to the AFP system for validation and captioning so that it can be distributed by AFP. (Morel SMF ¶¶ 77–78; CC Def. CSMF ¶¶ 77–78). AFP distributes such photographs through its international wire and a databank called ImageForum, which allows subscribers to access the photos either as part of a subscription plan or on an “a la carte” basis. (CC Def. SMF ¶¶ 11–12, 14–15; Morel CSMF ¶¶ 11–12, 14–15; Amalvy Decl. ¶ 2).

As the evening progressed, Amalvy continued to send pictures to the AFP photo desk, including at least one created by Tequila Minsky, sent shortly after 9:00 pm. (Morel SMF ¶¶ 53–55; CC Def. CSMF ¶¶ 53–55; Hoffman Deck Ex. E; Minksy Deck at ¶¶ 4, 7). As particularly relevant to this action, between 11:23 pm and 11:36 pm, Amalvy sent eight of Morel's photographs to the AFP photo desk (the “Photos–at–Issue”). (Morel SMF ¶¶ 21, 69–76; CC Def. CSMF ¶¶ 21, 69–76; Hoffman Deck Ex. E at AFP000813–818, 821–828).

C. Getty Receives Morel's Photos

After their receipt by AFP, AFP transmitted the Photos–at–Issue, credited to Suero, to Getty. (CC Def. SMF ¶¶ 153, 156, 169; Morel CSMF ¶¶ 153, 156, 169; CC Def. SMF ¶ 170; Morel CSMF ¶ 170; Eisenberg Decl. ¶ 16; Amalvy Dep. Ex. 14–A; Amalvy Decl. ¶ 15). Getty distributes photographic images worldwide from a database of nearly 41 million images, allowing both subscribers and nonsubscribers to license these images, including on an “a la carte” basis. (CC Def. SMF ¶¶ 29–34; Morel CSMF ¶¶ 29–34; Calhoun Deck ¶¶ 2–5; Eisenberg Decl. ¶¶ 3–4). For users with subscriptions, the terms of these subscriptions determine the types or categories of images to which they have access, the purpose for which the images may be used, and the duration of permissible use; the use of content is also governed by the terms of licenses to that content. (CC Def. SMF ¶¶ 32–34; Morel CSMF ¶¶ 32–34; Calhoun Decl. ¶ ¶ 4–5).

At the time AFP forwarded Morel's images to Getty, AFP and Getty had entered into a license agreement under which they granted reciprocal rights to, inter alia, display and license their images. (Hoffman Decl. Ex. AA; CC Def. SMF ¶ 46–47; Morel CSMF ¶ 46–47). As a result, AFP typically transmits roughly 1500 to 2000 images per day to the Getty system. (CC Def. SMF ¶ 48; Morel SMF ¶ 48; Bernasconi Decl. ¶ 6).

When AFP transmits an image to Getty through AFP's feed, the image is first received and processed by Getty's system, which runs certain automated checks to ensure, inter alia, that the image is properly formatted for Getty's internal TEAMS database and reflects the required data for publishing. (Morel SMF ¶¶ 97, 99; CC Def. CSMF ¶¶ 97, 99; Eisenberg Dep. at 35:18–36:16; 40:24–41:5). If all the required data is present, the image is transmitted to Getty's customer-facing website. (Morel SMF ¶ 99; CC Def. CSMF ¶ 99; Eisenberg Dep. at 35:18–36:16; 40:24–41:5). However, if the image does not have all of the data required for publishing, it will remain in Getty's internal database, but will not be automatically published to Getty's website. (Morel SMF ¶¶ 100–02; CC Def. CSMF ¶¶ 100–02; Eisenberg Dep. Tr. at 41:8–43:16). In such instances, human intervention may be required to correct the issue, allowing the image to publish to Getty's website. (Morel SMF ¶¶ 104–06; CC Def. CSMF ¶¶ 104–06; Eisenberg Tr. at 43:17–49:7). When the Photos–at–Issue were transmitted to Getty, it appears such human intervention may have been necessary to allow the Photos–at–Issue to publish, although the precise nature of this intervention is disputed—particularly as to whether Getty altered information about the byline or caption identifying the photographer. (CC Def. SMF ¶ 156; Morel CSMF ¶ 156; Morel SMF ¶ 131; CC Def. CSMF ¶ 131; Eisenberg Decl. ¶ 16).

D. Efforts to Correct the Byline and Remove the Photos–at–Issue

On the morning of January 13, 2010, Benjamin Fathers at AFP questioned the attribution of the Photos–at–Issue to Lisandro Suero, e-mailing Amalvy at 4:36 am (EST) that “I'm not sure Lisandro Suero's photos are his but they belong to Daniel Morel” with a link to Morel's TwitPic page. (Morel SMF ¶ 119; CC Def. SMF ¶ 119; Fathers Tr. at 9:16–10:5, 25–29; Fathers Dep. Ex. 9 (AFP000421)). About an hour after Fathers e-mailed Amalvy, AFP issued a “caption correction” that went out to Image Forum, AFP's wire, and AFP's archive, that credited Morel for the Photos–at–Issue. (Morel SMF ¶ 123–24; CC Def. CSMF ¶ 123–24; CC Def. SMF ¶ 173–74; Morel CSMF ¶ 173–74; Hambach Dep. Tr. at 192; Hambach Dep. Ex. 11). The caption correction did not, however, expressly state that the photographs that had already been credited to Suero should have been credited to Morel—rather, it stated that it was “CORRECTING BYLINE FOR FOLLOWING IMAGES Dec050/052/053/054/055/056/057/058...