and altered, and intent, knowledge, or reasonable grounds to know that continuing to distribute
the photos with incorrect CMI would induce, facilitate, enable, or conceal infringement. In sum,
the court denied the cross-motions for summary judgment, finding genuine disputes as to at least
the source of the photos (whether they were obtained from Morel or Suero); whether and to what
extent the captions to the photos conveyed copyright information; and AFP and Getty’s state of
mind in distributing the photos.^1325
In a subsequent opinion, discussed in Section III.C.6(b)(1)(iii).v below, the court
determined that both AFP and Getty were direct infringers for the distribution of unauthorized
copies of Morel’s photos and allowed the case to go to a jury on the copyright infringement
claims and the CMI claims. In Nov. 2013, a New York federal jury 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 infringer’s profits, and $1.2 million in statutory
damages; found that AFP and Getty had jointly committed sixteen violations of the CMI
provisions of the DMCA for the distribution of false bylines; and awarded Morel an additional
$20,000 for those DMCA violations. Morel elected to receive statutory damages in lieu of actual
damages and infringer’s profits, and the court entered judgment in the total amount of
$1,220,000. As discussed in greater detail in Section III.C.6(b)(1)(iii).v below, the defendants’
subsequent motions for JMOL, new trial and/or remittitur were denied, except Getty’s motion for
JMOL with respect to Section 1202(b) liability was granted. AFP and Getty remained jointly
liable for $1.2 million in statutory damages, and AFP was held individually liable for $10,000 of
statutory damages under the CMI provisions of the DMCA (one half of the total the jury awarded
against AFP and Getty).^1326
f. Murphy v. Millennium RadioThe case of Murphy v. Millennium Radio Group LLC^1327 was the first federal appellate
court decision concerning whether CMI is limited to information that is a component of an
automated copyright protection or management system. The plaintiff was the copyright owner of
a photo. An unknown employee of the defendant scanned the photo from a magazine and posted
the resulting electronic copy to the defendant’s web site and to another web site. The resulting
image, as scanned and posted to the Internet, eliminated the original photo’s gutter credit (i.e., a
credit placed in the inner margin, or “gutter,” of a magazine page, ordinarily printed in a smaller
type and running perpendicular to the relevant image on the page) identifying the plaintiff as the
author. The plaintiff brought a claim for violation of the CMI provisions of the DMCA.^1328
The district court had agreed with the reasoning of the IQ Group case and held that the
photo credits were in no way a component of an automated copyright protection or management
systems and therefore did not qualify as CMI protected under the DMCA.^1329 On appeal, the
(^1325) Id. at 578.
(^1326) Agence France Presse v. Morel, 2014 U.S. Dist. LEXIS 112436 at 6-7, 10-29 (S.D.N.Y. Aug. 13, 2014).
(^1327) 650 F.3d 295 (3d Cir. 2011).
(^1328) Id. at 299.
(^1329) Murphy v. Millennium Radio Group LLC, 2010 U.S. Dist. LEXIS 32631 at 2-3, *8-9 (D.N.J. Mar. 31, 2010).