observe or enforce the credit change instruction or the “kill,” continued to license and sell
Morel’s photos, and derived a direct financial benefit as a result. AFP filed a suit, seeking a
declaratory judgment that AFP did not infringe Morel’s copyrights in certain photos. Morel
counterclaimed against AFP and Getty, alleging that they had willfully infringed his copyrights
and that AFP and Getty were secondarily liable for the infringement of others and had violated
the CMI provisions. AFP moved to dismiss Morel’s counterclaims for failure to state a
claim.^1322
The court rejected the motion to dismiss the CMI claims. The court declined to adopt the
definition of CMI in IQ Group as limited to a component of an automated copyright protection or
management system. The court was persuaded by the reasoning of decisions rejecting IQ Group
and held that the notations “Morel,” “daniel morel,” and “photomorel” used by Morel in
connection with his photos fell within the scope of CMI under the plain language of the
statute.^1323
After discovery, the parties filed cross-motions for summary judgment. Morel’s CMI
claims were based on the distribution of his photos credited to Suero and the distribution of his
photos credited to Getty and/or AFP. The court denied the motions based on disputed issues of
fact. With respect to AFP, the court found that AFP had provided evidence sufficient for a jury
to find that its employee obtained the photos only from Suero’s Twitter page and was ignorant of
Morel at the time the employee downloaded the photos and therefore did not have the requisite
state of mind for CMI liability in crediting the photos to Suero. Morel, on the other hand,
alleged that AFP had also obtained some of the photos from Morel’s Twitter page and that AFP’s
employee was therefore aware that Morel held the rights to the photos. But even if the factual
issue as to source of the photos were resolved in AFP’s favor, the court noted other evidence
from which a jury could conclude AFP distributed the photos with false, altered, or removed
CMI and did so with the requisite intent. For example Morel presented evidence that the photos
were credited to, among others, “DANIEL MOREL/AFP/Getty Images,” “Lisandro
Suero/AFP/Getty Images,” “Daniel Morel/Agence France-Presse – Getty Images,” and
“AFP/Getty Images/Daniel Morel.” Morel contended that distributing the photos with these
credits established a violation of the CMI provisions because including “AFP” and “Getty” in the
caption provided false and altered CMI about the ownership of the photos. The evidence also
suggested that AFP and Getty added their watermarks to the photos, which the court found
facially suggestive of an assertion of ownership. And the addition of “AFP” to the caption could
potentially induce, enable, facilitate, or conceal AFP’s infringement and the infringements of its
subscribers.^1324
The court found similar factual issues with respect to Getty. For example, there was
evidence that at least one employee of Getty was aware that there remained on Getty’s system
copies of the photos that wrongfully credited Suero and to which Getty did not have a valid
license. From that evidence, a jury could find Getty knew that the CMI on the images was false
(^1322) Id. at 298, 300-301.
(^1323) Id. at 305-06.
(^1324) Agence France Presse v. Morel, 934 F. Supp. 2d 547, 551 & 576-77 (S.D.N.Y 2013).