awards from which a plaintiff may make an election, whether an award will be individual rather
than joint and several is a question of fact not susceptible to the gamesmanship in which Morel is
attempting to engage. If a single individual acting alone infringes a work, the award is
individual. If multiple infringers acting together infringe a work, the award is joint and several.
Nothing in this proposition or in the statutory language permits a plaintiff to make an election
that contravenes fact.”^2793
Finally, the court rejected Morel’s argument that the result should be different where
there is a causal or temporal break in the infringement, as here, noting the general statutory intent
of Section 504(c) that contemplates a single per-work award for “all infringements involved in
the action” – language which does not focus on whether there are causal or temporal breaks in
infringement. And in any event, the court ruled that no reasonable jury could conclude that the
pre- and post-kill notice conduct constituted separate infringements for which AFP and Getty
would not be jointly and severally liable.^2794
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.^2795
AFP and Getty then each moved for JMOL on the jury’s finding that they willfully
infringed Morel’s copyright in the eight photographs, as well as on the DMCA claims. They also
moved in the alternative for a new trial on the jury’s willfulness finding, and for a new trial or
remittitur on the jury’s damages award for copyright infringement. The court rejected the
motions for JMOL or for a new trial with respect to willfulness, finding the evidence was
sufficient for the jury to conclude that both AFP’s and Getty’s infringement was willful under
either an actual knowledge or reckless disregard theory.^2796
With respect to AFP’s DMCA liability, the court ruled that much of the same evidence on
which the jury could have found that AFP’s infringement was willful also permitted it to find
AFP liable under both Sections 1202(a) and 1202(b). For example, with respect to Section
1202(a), the jury could have concluded based on an employee’s Twitter activity that he knew the
eight images were not Suero’s from the beginning yet falsely credited them to Suero.
Additionally, even if AFP’s addition of the identifier “AFP” to Morel’s images did not imply that
AFP itself was the copyright owner, there was sufficient evidence that it conveyed false
identifying information about the author of the work by implying that Morel was associated with
AFP, which he was not. And the jury could have concluded that AFP acted with the required
(^2793) Id. at 590.
(^2794) Id. at 590, 594.
(^2795) Agence France Presse v. Morel, 2014 U.S. Dist. LEXIS 112436 at 7 (S.D.N.Y. Aug. 13, 2014).
(^2796) Id. at 7, 10-18.