Presse v. Morel
| Decision Date | 13 August 2014 |
| Docket Number | 10-cv-2730 (AJN) |
| Parties | AGENCE FRANCE PRESSE, Plaintiff, v. DANIEL MOREL, Defendant, v. GETTY IMAGES (US), INC., et al., Counterclaim Defendants. |
| Court | U.S. District Court — Southern District of New York |
On November 22, 2013, following trial, a jury found that Agence France Presse ("AFP") and Getty Images (US), Inc. ("Getty," and together with AFP, "Defendants"1) had willfully infringed Daniel Morel's copyright in eight photographs taken in the aftermath of the January 2010 Haiti earthquake. The jury awarded Morel $303,889.77 in actual damages and infringers' profits and $1.2 million in statutory damages. The jury also found that Defendants had committed sixteen violations of the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. §§ 1201-1205, and awarded Morel an additional $20,000 for those violations. Before the Courtis Defendants' motion under Federal Rules of Civil Procedure 50 and 59(a) for judgment as a matter of law, a new trial, and/or remittitur. Dkt. No. 313. For the following reasons, Defendants' motion is granted in part and denied in part.
The Court assumes familiarity with the facts of this case from its prior opinions on summary judgment and Judge Pauley's decision at the motion to dismiss stage, when the case was still assigned to him. Agence Fr. Presse v. Morel, 769 F. Supp. 2d 295 (S.D.N.Y. 2011) ("Morel I"); Agence Fr. Presse v. Morel, 934 F. Supp. 2d 547 ("Morel II"), reconsideration granted in part, 934 F. Supp. 2d 584 (S.D.N. Y. 2013) ("Morel III"); Dkt. Nos. 49, 192, 217. Briefly, AFP commenced this action in March 2010 by filing a declaratory judgment complaint naming Morel as the defendant. Morel, a professional photographer who lives in Haiti, had taken a number of photographs on January 12, 2010, in the aftermath of the devastating Haiti earthquake, and uploaded them to Twitter via a TwitPic account. A Twitter user named Lisandro Suero copied the photographs into his own Twitter feed without Morel's consent, and though the parties dispute precisely what happened next, eight of the photographs—initially credited to Suero—ended up being distributed by AFP and its "image partner" Getty to thousands of news outlets and other customers around the world.
After AFP sought a declaration that it had not infringed Morel's copyright in the eight photographs,2 Morel filed counterclaims against AFP for copyright infringement and violations of the DMCA and the Lanham Act, and also brought third-party claims against Getty and a number of Defendants' "downstream" customers (no longer parties) who had downloaded the images. On January 14, 2011, Judge Pauley upheld the bulk of Morel's claims against a motionto dismiss, but granted the motion with respect to his Lanham Act claims. Morel I, 769 F. Supp. 2d at 302-04, 305-06, 308.
On April 27, 2012, following discovery, the remaining parties—at that point, only AFP, Getty, and the Washington Post ("the Post") were still litigating Morel's claims—filed cross-motions for summary judgment. This Court rejected as a matter of law Defendants' primary defense against Morel's copyright claims, namely, that Defendants were licensed to use Morel's photographs by virtue of Twitter's terms of service. That holding meant that AFP and the Post, neither of which had asserted any other defenses, were liable for copyright infringement. The Court also held that genuine issues of material fact precluded judgment on (1) Getty's remaining defenses against copyright infringement; (2) whether Defendants' copyright infringement was "willful" so as to trigger enhanced statutory damages under the Copyright Act, see 17 U.S.C. § 504(c)(2); (3) Defendants' secondary liability for the infringements committed by their downstream customers; and (4) Defendants' liability under the DMCA. Morel II, 934 F. Supp. 2d at 564, 568-69, 571-72, 572-75, 578. On reconsideration, the Court clarified that Defendants' liability for copyright infringement was joint and several, and that Morel could therefore prove at most eight infringements and receive at most eight statutory damages awards—i.e., one per photograph. Morel III, 934 F. Supp. 2d at 588-94.
Before trial, Getty dropped its two remaining copyright infringement defenses, thereby conceding liability. The Court also determined that Morel's secondary liability claims were duplicative, since liability for direct infringement had already been established against both Defendants. Tr. at 870:13-16. Accordingly, the only issues on which the jury was instructed were whether Defendants' infringements were willful, whether Defendants were liable under the DMCA, and damages under both the Copyright Act and the DMCA.
Trial commenced on November 13, 2013. There were nine witnesses: Morel; Vincent Amalvy, AFP's Director of Photography for North and South America; Eva Hambach, AFP's Deputy to the Director of Photography for North America and South America; Andreas Gebhard, Getty's Editorial Distribution Director; Francisco ("Pancho") Bernasconi, Getty's Vice President for U.S. News and Sports; Katherine Calhoun, Getty's Senior Sales Director for North American Media; Heather Cameron, a Senior Paralegal in Getty's Legal Department; Gilles Tarot, AFP's Director of Sales and Marketing for North America; and Benjamin Fathers, AFP's photo desk chief for Europe and Africa. See JPTR Exs. C, D (describing witnesses' roles).
The jury heard testimony from November 14 to November 20, 2013, and delivered its verdict on November 22. It found that both AFP and Getty had willfully infringed Morel's copyright in the eight photographs; awarded Morel $275,000 in actual damages, $28,889.77 total in infringing profits, and $1.2 million in statutory damages; found that AFP and Getty had jointly committed sixteen DMCA violations; and awarded Morel an additional $20,000 for those violations. Court Exs. 9, 12. On December 10, 2013, after Morel elected to receive statutory damages under the Copyright Act, the Court entered judgment in the amount of $ 1,220,000. Dkt. No. 306. The parties submitted a stipulation staying execution of that judgment pending the final disposition of any post-trial motions. Dkt. No. 311.
Defendants move for judgment as a matter of law on the jury's finding that both AFP and Getty willfully infringed Morel's copyright in the eight photographs, as well as on Morel's DMCA claims. Def. Br. at 4, 12. Defendants also move in the alternative for a new trial on the jury's willfulness finding. Id. at 12. Finally, Defendants move for a new trial or remittitur on the jury's damages award for copyright infringement. Id. at 20.
Judgment as a matter of law pursuant to Rule 50 is appropriate on a given issue if "a reasonable jury would not have a legally sufficient evidentiary basis to find for" the non-moving party on that issue. Fed. R. Civ. P. 50(a)(1). A court should grant a Rule 50 motion only if "there exists such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or the evidence in favor of the movant is so overwhelming that reasonable and fair minded [persons] could not arrive at a verdict against [it]." Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 567 (2d Cir. 2011) (alterations in original) (quoting Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir. 2008)) (internal quotation mark omitted).
A district court may order a new trial pursuant to Rule 59(a) on the basis that the jury's verdict was against the weight of the evidence "if and only if it determines that the verdict is "seriously erroneous" or "a miscarriage of justice." Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 417 (2d Cir. 2012) (quoting Farrior v. Waterford Bd. of Educ., 277 F.3d 633, 634 (2d Cir. 2002)). A court's discretion to order a new trial includes "overturning verdicts for excessiveness and ordering a new trial without qualification, or conditioned on the verdict winner's refusal to agree to a reduction (remittitur)." Kirsch v. Fleet St., Ltd., 148 F.3d 149, 165 (2d Cir. 1998) (quoting Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 433 (1996)) (internal quotation mark omitted). "Remittitur is the process by which a court compels a plaintiff to choose between reduction of an excessive verdict and a new trial." Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir. 1984)
Generally, remittitur is appropriate under two circumstances: (1) when the court discerns "an error that caused the jury to include in the verdict a quantifiable amount that should bestricken" or (2) when the award is "intrinsically excessive" in the sense that no reasonable jury could have awarded the amount, whether or not the excessiveness can be attributed to "a particular, quantifiable error." Kirsch, 148 F.3d at 165 (quoting Trademark Research Corp. v. Maxwell Online, Inc., 995 F.2d 326, 337 (2d Cir. 1993)). Where there is no discernible error, the jury's verdict should be set aside as intrinsically excessive only if "the award is so high as to shock the judicial conscience and constitute a denial of justice." Id. (quoting O'Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988)) (internal quotation marks omitted).
The Copyright Act authorizes a jury to award enhanced statutory damages if it finds that the defendant's infringement was willful. 17 U.S.C. § 504(c)(2). Infringement is willful if (1) "the defendant was actually aware of the infringing activity" or (2) "the defendant's actions were the result of 'reckless disregard' for, or 'willful blindness' to, the copyright holder's rights." Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 263 (2d Cir. 2005); see also N.A.S. Imp., Corp. v. Chenson Enterprises, Inc., 968 F.2d 250, 252 (2d Cir. 1992) ...
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