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District court upholds jury’s award of maximum statutory copyright damages of $1.2 million, plus $20,000 in DMCA damages, finding sufficient evidence that defendants willfully infringed plaintiff photojournalist’s copyright in eight photographs taken in aftermath of January 2010 Haiti earthquake.
Daniel Morel is a professional photographer based in Haiti. Morel took eight photographs of the aftermath of the January 2010 earthquake that wire service Agence France Presse (AFP) and photo agency Getty Images (Getty) subsequently distributed without Morel’s authorization. AFP obtained the photographs from the Twitter feed of Lisandro Suero, who did not take the photos but who was initially and mistakenly credited as the photographer. Morel asserted that the distribution infringed his copyrights.
AFP filed suit against Morel seeking a declaration that it had not infringed Morel’s photographs. Morel counterclaimed for copyright infringement and violations of the Digital Millennium Copyright Act (DMCA), causing AFP to implead Getty as a third-party defendant that distributed the photographs after receiving them from AFP. Following extensive motion practice, the court held that AFP was liable for copyright infringement as a matter of law, and Getty conceded it was liable for copyright infringement. A jury trial was conducted to decide whether AFP and Getty’s copyright violations were willful, whether they had violated the DMCA, and how much Morel should recover in damages. The jury concluded that AFP and Getty’s copyright infringements were willful—permitting a higher award of statutory damages per infringement—and awarded Morel $1.2 million in statutory damages, the maximum possible statutory award amount, for the willful infringement of the eight photographs; $275,000 in actual damages; and $28,889.77 in total infringing profits. The jury also found AFP and Getty had committed 16 violations of the DMCA and awarded Morel an additional $20,000 for those violations. After Morel elected to receive statutory damages under the Copyright Act, the court entered judgment in the amount of $1.220 million.
AFP and Getty then made several post-trial motions: for judgment as a matter of law in their favor, for a new trial, and for a decrease in statutory damages awarded under both the DMCA and Copyright Act. The court rejected these motions, with the exception that it found that Getty was not liable for certain of the DMCA violations.
First, the defendants argued that the evidence presented at trial was insufficient for the jury to find that either AFP or Getty willfully infringed Morel’s photographs. The court rejected this argument, however, finding the evidence “plainly sufficient for the jury to conclude that AFP’s infringement was willful under either an actual knowledge or reckless disregard theory.” AFP became aware, on January 13, 2010—a day after Morel took the photographs at issue—that the photographs it had accessed from Suero’s Twitter feed had actually been taken by Morel. It also knew that it did not have Morel’s permission to use these photographs. AFP, however, continued distributing the photographs and issued a caption correction identifying Morel as the photographer.
The court also concluded that there was sufficient evidence to support a finding of willful infringement by Getty. There was sufficient evidence, for instance, establishing that Getty continued to license Morel’s photographs more than two weeks after AFP sent Getty a “kill notice” asking Getty to remove all of Morel’s Haiti earthquake photographs from its distribution platforms. While noting that the evidence of Getty’s willfulness was “thin” in comparison to the evidence of AFP’s willfulness, the court concluded that it was sufficient to support the jury’s verdict. In support of its willfulness findings, the court also noted that both AFP and Getty are sophisticated companies familiar with copyright law and therefore could have been more meticulous in removing Morel’s photographs from their systems.
The court upheld the copyright damages award, which was the maximum statutory damages award amount that Morel could have recovered for willful infringements of eight photographs—$150,000 per infringement. (The jury found that Morel was entitled to actual damages of $275,000, which Morel declined in favor of statutory damages.)
Defendants argued that the statutory damages award was excessive. In so arguing, the defendants challenged the jury’s actual damages calculation of $275,000 to the extent that it undergirded the $1.2 million statutory damages award, noting—as the court acknowledged—that actual damages may be relevant even if a plaintiff elects to recover statutory damages and thus that the jury’s inappropriate actual damages calculation “infected” its statutory damages award. However, the court rejected the defendants’ argument that there must be some correlation between actual and statutory damages, noting that, while revenue lost is one factor to consider, other factors—such as the infringer’s state of mind and the deterrent effect to the infringer and third parties—could justify the statutory damages award. In any event, the court also held that the jury’s actual damages award was not impermissibly speculative and thus that defendant’s challenge to the actual damages award could not be a basis for reversing the statutory damages award. Finally, the court rejected defendants’ argument that the $1.2 million statutory damage award should be remitted as “intrinsically excessive,” stating that the award was not “so high as to shock the judicial conscience and constitute a denial of justice.”
Defendants also argued that the evidence was insufficient to find them liable for violating the DMCA. The jury was instructed on two theories of DMCA liability (based on two subsections of the DMCA), which the parties referred to as “providing or distributing” false copyright management information (CMI) and “altering” CMI. The court noted that much of the same evidence on which the jury could have found that AFP’s infringement was willful also permitted the jury to find AFP liable under both relevant subsections of the DMCA. Likewise, the court found sufficient evidence for the jury’s conclusion that Getty violated the DMCA by distributing Morel’s photographs while knowing they contained false CMI—that is, the mistaken attribution of the photos to Suero. However, there was insufficient evidence to find Getty liable under the second DMCA theory of liability, for altering the CMI on Morel’s photographs or knowing that the CMI had been altered.
Defendants challenged the $20,000 in DMCA damages assessed against them, arguing that Morel had failed to show actual damages. The court saw no reason why an inadequately supported claim of actual damages should preclude Morel from recovering statutory damages under the DMCA. In light of all the factors the jury was entitled to consider, its statutory award of $20,000 was permissible. While AFP and Getty remained jointly and severally liable for the entire copyright infringement award of $1.2 million, the court excused Getty from its portion of liability for half of the $20,000 DMCA award based on its conclusion that Getty had only violated one section of the act.