CMI, which would have generated a statutory damages award to him of between $4,445,000 (at
the minimum statutory amount) and almost $44,500,000 (at the maximum statutory amount).^1439
The court rejected this argument based on a comparison of the damages available under
Section 1203(c)(3)(B) for violations of Section 1202 with those available under Section
1203(c)(3)(A) for violations of Section 1201. Specifically, the statutory damages available for
violations of Section 1201 are an award “per act of circumvention,” where the statutory damages
available for violations of Section 1202 are “for each violation of § 1202” (not “per act”). The
court concluded that the omission of the reference to damages “per act” in Section 1203(c)(3)(B)
meant the damages available under that section should not be multiplied based on the number of
recipients of the photos at issue in the case. Rather, damages should be assessed per violation –
i.e., based on AFP and Getty’s actions in uploading or distributing the photos, regardless of the
number of recipients of those images. The court noted that its analysis paralleled that in
McClatchey, which the court found persuasive, and that other courts had uniformly followed the
approach of McClatchey.^1440
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. 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).^1441
(3) Jurisdictional Issues – Blueport Co. v. United StatesIn Blueport Co. v. United States,^1442 the Court of Claims ruled that the United States
cannot be sued under the DMCA’s anti-circumvention provisions because the DMCA contains
no clear waiver of sovereign immunity, and waiver under the DMCA could not be inferred from
(^1439) Agence France Presse v. Morel, 934 F. Supp. 2d 547, 583 & n.22 (S.D.N.Y. 2013).
(^1440) Id. at 583, citing for support the following cases: Granger v. One Call Lender Servs., 2012 U.S. Dist. LEXIS
104885 at 12-15 (E.D. Pa. July 26, 2012); Stockart.com, LLC v. Engle , 2012 U.S. Dist. LEXIS 20470 at 40-
41 (D. Colo. Feb. 18, 2011); Stockwire Research Group, Inc. v. Lebed, 577 F. Supp. 2d 1262, 1266-67 (S.D.
Fla. 2008); and Goldman v. Healthcare Mgmt. Sys., 559 F. Supp. 2d 853, 867-68 (W.D. Mich. 2008).
(^1441) Agence France Presse v. Morel, 2014 U.S. Dist. LEXIS 112436 at *6-7, 10-29 (S.D.N.Y. Aug. 13, 2014).
(^1442) 80 U.S.P.Q.2d 1585 (Ct. Fed. Claims 2006).