itself selling or licensing copyrighted material. The record before the court contained evidence
from which a jury could infer that Getty did not, in fact, simply host AFP’s images. Morel had
presented evidence suggesting that the agreement between AFP and Getty granted Getty rights to
itself license the images that AFP provided, and Getty employees were actively involved in the
licensing of Morel’s photos to at least certain charitable organizations. On such evidence, a jury
could infer that Getty’s role extended beyond merely providing a file hosting service to AFP, and
that Getty itself acted as a licensor of the photos. The court therefore concluded that there was
an issue of fact as to whether Getty qualified as a service provider for purposes of the Section
512(c) safe harbor.^2781
Finally, the court concluded that there were disputes of fact precluding summary
judgment on the issues of whether AFP and Getty were willful infringers and liable as secondary
infringers,^2782 but went on to make rulings with respect to a dispute as to how the statutory
damages provision of Section 504(c) would be applied to the facts of the case. Specifically, the
parties disputed the proper application of Section 504(c)(1) to cases involving an alleged
infringer who, through principles of secondary liability, may be found jointly liable with a
number of alleged downstream direct infringers, none of whom are jointly liable with the other
alleged downstream infringers. Morel argued that Getty and AFP were liable for not just a single
statutory damages award for each work infringed, but rather a separate award of statutory
damages for each distinct subscriber with whom they were jointly and severally liable.^2783
The court rejected Morel’s argument, noting that it would effectively bypass the limit of a
single statutory award for “all infringements” of a work because it would hold Getty or AFP
liable for multiple infringements of a single work. That conclusion was further supported by
Section 504(c)(1)’s provision that a group of defendants who are all jointly and severally liable
with each other are also to be liable for only a single statutory damages award, suggesting that a
copyright holder should not be allowed to multiply damages against an infringer based on the
infringing activity of jointly liable third parties. The court found that Congress’ intent appears to
have been to restrict statutory damages to a single award per work, per infringer, and Morel’s
suggested approach was directly to the contrary.^2784 The court noted that Morel’s suggested
approach was rejected in the Arista Records^2785 case. Although acknowledging that Morel’s
position was apparently adopted by the Ninth Circuit in the Columbia Pictures^2786 case, the court
noted that the Ninth Circuit had done so in a footnote which neither directly addressed the
statutory text nor engaged in detailed analysis of the issue, and subsequent court decisions had
rejected outright the Columbia Pictures decision, including the McClatchey^2787 case.
(^2781) Id. at 564-65.
(^2782) Id. at 570-75.
(^2783) Id. at 578-80.
(^2784) Id. at 580-81.
(^2785) Arista Records LLC v. Lime Group LLC, 784 F. Supp. 2d 313, 316-21 (S.D.N.Y. 2011).
(^2786) Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc., 106 F.3d 284, 294 & n.7 (9th Cir.
1997).
(^2787) McClatchey v. The Associated Press, 2007 U.S. Dist. LEXIS 40416 at *10 (W.D. Pa. June 4, 2007).