Agence France Presse v. Morel
934 F. Supp. 2d 547
S.D.N.Y.2013Background
- AFP and Morel dispute copyright ownership and infringement regarding Morel’s Haiti earthquake photos.
- Morel posted photos to TwitPic/Twitter; AFP, Getty, and The Washington Post distributed or displayed some Photos-at-Issue.
- Caption corrections and Kill Notices were issued to fix or remove improper attributions; Getty and AFP implemented changes but issues persisted.
- Getty’s DMCA safe harbor defense and whether Getty acted as a mere host or a licensor are contested.
- There are factual disputes over timing, attribution, and the precise source of the Photos-at-Issue.
- Damages questions focus on per-work statutory damages under 504(c) and DMCA §1202, including whether damages are multipliable across infringers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| License/third-party beneficiary via Twitter TOS | Morel argues Twitter/TwitPic terms implied AFP license | Twitter TOS do not clearly grant AFP a license to remove/redistribute; no third-party beneficiary intent | Twitter TOS do not provide a license to AFP; license defense rejected |
| DMCA safe harbor applicability to Getty | Getty should be protected as a service provider under OCILLA | Getty’s role may exceed passive hosting; factual disputes exist on intent and control | Genuine issues of material fact preclude summary judgment on Getty’s DMCA safe harbor status |
| Willful infringement and volitional conduct | Getty and Post knowingly infringed; willful conduct shown | Defendants deny willfulness; some actions are arguable but facts are contested | Issues of willfulness remain for Getty and Post; summary judgment denied on willfulness |
| Damages—statutory under 504(c) and DMCA §1202 | Getty/AFP liable for multiple statutory damages per infringing acts | Damages capped to single per-work award; per-act damages under DMCA §1202 not multiplicative | Damages are not multiplicative per infringer under 504(c); DMCA §1202 damages per act not per recipient; summary judgment on damages denied or limited as held in opinion |
| Contributory and vicarious liability | AFP/Getty liable for downstream infringements by licensees | No clear control or knowledge; disputes on contribution and control remain | Summary judgment on contributory and vicarious liability denied due to factual disputes |
Key Cases Cited
- Cablevision Sys. Corp. v.-news Corp., 536 F.3d 121 (2d Cir. 2008) (limits on volitional conduct for copying rights (Cablevision))
- Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012) (DMCA safe harbors and service provider liability)
- Columbia Pictures TV v. Krypton Broad. of Birmingham, Inc., 106 F.3d 284 (9th Cir. 1997) (single statutory damages per work when joint and several liability present)
- Tasini v. New York Times Co., 206 F.3d 161 (2d Cir. 1999) (rights in freelance works and licensing expectations)
- Lipton v. Nature Co., 71 F.3d 464 (2d Cir. 1995) (state-of-mind and intent issues for willfulness)