infringement. Morel alleged that an AFP photo editor viewed his photos before asking about
identical photos on Suero’s TwitPic page, and that when Morel failed to respond to the editor’s
email, AFP downloaded the pictures from Suero. Morel further alleged that AFP knew the
photos were his because he was a well-known photographer and AFP had no reason to believe
Suero took the photos. However, AFP credited Suero without inquiry. As to Getty, Morel
alleged that even after AFP issued a wire to change the photographer credit from Suero to Morel,
Getty continued to license photos crediting Suero. Getty sought to obtain credit for the
photographs even though it knew of Morel’s reputation and had not investigated Suero’s
authorship. The court concluded that these allegations sufficiently plead knowledge and
intent.^1395
After discovery, the parties cross-moved for summary judgment on the CMI claims. The
court denied the motions based on various factual disputes,^1396 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).^1397
c. Personal Keepsakes v. PersonalizationMall.comThis case in discussed in Section II.G.1(b)(2)(i).k above.
(3) Exceptions and LimitationsSections 1202(d) provides an exception for law enforcement, intelligence, and
information security activities. Section 1202(e) limits the liability of persons for violations in the
course of analog transmissions by broadcast stations or cable systems if avoiding the activity that
constitutes a violation of the CMI integrity provisions is not technically feasible or would create
an undue financial hardship.
(^1395) Agence France Presse v. Morel, 769 F. Supp. 2d 295, 304-05 (S.D.N.Y. Jan. 14, 2011).
(^1396) Agence France Presse v. Morel, 934 F. Supp. 2d 547, 574-78 (S.D.N.Y. 2013).
(^1397) Agence France Presse v. Morel, 2014 U.S. Dist. LEXIS 112436 at *6-7, 10-29 (S.D.N.Y. Aug. 13, 2014).