Accordingly, the court concluded that any awards of statutory damages against SFP or Getty
could not be multiplied based on the number of infringers with whom AFP or Getty might be
determined to be jointly and severally liable. Rather, AFP and Getty would, at most, be liable
for a single statutory damages award per work infringed.^2788
AFP and Getty subsequently filed a motion for reconsideration for clarification of what
the court meant in its earlier ruling that AFP and Getty would at most be liable for a single
statutory damages award per work infringed. Specifically, the court cast the issue on
reconsideration as whether Morel could elect to pursue one statutory award per work from AFP
alone for its individual pre-kill notice conduct and a separate statutory award for that same work
from Getty for its individual post-kill notice conduct.^2789 The court concluded, “as a matter of
law, that a plaintiff seeking statutory damages for copyright infringement may not multiply the
number of per-work awards available in an action by pursuing separate theories of individual
liability against otherwise jointly liable defendants.”^2790
The court found that, although the question now before the court was different from the
one it addressed in its earlier opinion, the statutory language and legislative intent of Section
504(c), as well as relevant precedent, again exhorted adherence to the same conclusion. The
court noted that, under Morel’s reading of the statute, a copyright holder could elect to pursue
individual awards against otherwise jointly liable defendants, in a single action, so long as the
copyright holder could establish that each or all of those defendants was also individually liable.
The court rejected this interpretation of Section 504(c)(1), which provides that a copyright owner
“may elect to recover ... an award of statutory damages for all infringements involved in the
action, with respect to any one work, for which any one infringer is liable individually, or for
which any two or more infringers are liable jointly and severally.” The court determined that,
contrary to Morel’s position, the best reading of this provision is that the “or” distinguishes
between the two factual scenarios in which a copyright holder would be entitled to recover
statutory damages for the infringement of his work, rather than between two types of awards or
theories of recovery. Those two factual scenarios are, first, one in which “any one infringer is
liable individually,” and, second, one in which “two or more infringers are liable jointly and
severally.”^2791
Morel urged the court to focus on the interplay between the “or,” and the preceding
statutory term, “elect,” arguing that the election the copyright owner is permitted to make is
between pursuing an individual or a joint award. The court rejected this, finding the only
supportable reading of the plain language to be that the copyright owner’s election is to recover
statutory damages under Section 504(c) in lieu of actual damages and profits under Section
504(b).^2792 “Because the statutory language of § 504(c) does not establish two categories of
(^2788) Agence France Presse, 934 F. Supp. 2d at 581-82.
(^2789) Agence France Presse v. Morel, 934 F. Supp. 2d 584, 586 (S.D.N.Y. 2013).
(^2790) Id.
(^2791) Id. at 589.
(^2792) Id.