After discovery, the parties cross-moved for summary judgment on the CMI claims. The
court denied the motions based on various factual disputes,^1374 for the reasons summarized in
Section II.G.1(b)(1)(ii).e above. 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).^1375
j. Scholz Design v. Custom HomesIn this case the plaintiff brought a claim under Section 1202 for removal of CMI based on
the defendant’s posting on a web site of copies of images depicting designs of homes that the
plaintiff claimed a copyright in. The plaintiff claimed that the defendant had removed the
plaintiff’s name from the designs before posting them. The court ruled that the designs were not
copyrightable as architectural drawings because they did not contain the necessary level of detail
to allow construction of a home from them. The court then dismissed the plaintiff’s CMI claim,
ruling that it must have a valid copyright infringement claim in order for its Section 1202 claim
to survive.^1376
k. Personal Keepsakes v. PersonalizationMall.com
In this case the plaintiff, operator of a web site selling personalized gifts and
knickknacks, brought a claim against the defendants who also operated sites selling personalized
gifts on the Internet for allegedly taking the plaintiff’s copyrighted poems and incorporating
them into the defendants’ own products. Among other things, the plaintiff brought a claim under
Section 1201 for removal of CMI from the poems when they were copied into the defendants’
products. The plaintiff identified three pieces of purported CMI that one or more of the
defendants removed when copying the poems: the poetrygift.com name affiliated with the poems
on the plaintiff’s site, the titles of the works (specifically, “Baptism Gifts”/”On Your Baptism
(^1374) Agence France Presse v. Morel, 934 F. Supp. 2d 547, 574-78 (S.D.N.Y. 2013).
(^1375) Agence France Presse v. Morel, 2014 U.S. Dist. LEXIS 112436 at 6-7, 10-29 (S.D.N.Y. Aug. 13, 2014).
(^1376) Scholz Design, Inc. v. Sard Custom Homes, LLC, 2011 U.S. Dist. LEXIS 76663 at 2-3, 9-10 & 14 (D.
Conn. July 15, 2011).