****** UPDATE 5/22/13
A federal trial court judge limited Mr. Morel’s damage claims against AFP & Getty finding that they are jointly but not individually liable because Getty’s alleged infringement stemmed from that of AFP. Therefore they should not be held liable to pay separate penalties. This is a clear rejection by Morel that Getty should be held separately liable because it continued to use the photos after AFP’s”kill notice” to take them taken down.
The decision reduces Morel’s damage claims to eight — with a possible award for each one of those claims rather than the multiplier factor Morel had proposed.
“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 casual breaks in the course of those parties’ infringement of a given work,” said U.S. District (SDNY) Judge Alison Nathan.
Morel’s attorney, Joe Baio, said that while he was disappointed in the ruling, he was please that the court ”reaffirmed” the liability of the defendants and that Getty’s continued use of his clients photos despite the kill order may also support willful infringement finding.
The defendants in the copyright lawsuit brought by photojournalist Daniel Morel are seeking a ruling from the federal trial court judge limiting their damages in the case. Attorneys for Agence France-Presse AFP) and Getty Images Inc. were in court on May 7, 2013, arguing that it is unfair that they should have to pay separate penalties for infringing upon Morel’s copyright by using the photos he had posted from his Twitter account.
Morel alleges that AFP used eight (8) of his aftermath photos from the 2010 Haiti earthquake without permission and then licensed them to Getty. In response to a declaratory action brought by the defendants, U.S. District (SDNY) Judge Alison Nathan previously found that the terms of service set forth on the social media website did not grant the defendants the rights to such use.
Lawyers for AFP and Getty claim that since they are accused of participating in the infringement together – they should only have to pay a single penalty for each infringed work - where Getty’s alleged infringement came as a result of AFP’s improper use of the photos.
“If AFP and Getty are jointly and severally liable, there can only be one damages award against them under the plain language of the statute,” said James Rosenfeld, one of Getty’s lawyers. Morel’s attorneys countered that because Getty continued to use the photos even after AFP issued a ”kill notice” to take them down, that Getty should be liable to pay separate damages. “What did Getty do? They persisted,” said Joseph Baio, adding ”the jury should be able to determine if that was a separate act.”
The judge reserved her decision for a later date. The trial is scheduled to begin on Sept. 16, 2103 and will resolve the question of damages and other claims and defenses not already decided.