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Barbara Hoffman (BH 8931)THE HOFFMAN LAW FIRM330 West 72nd StreetNew York, New York 10023Telephone: (212) 873-6200
Facsimile: (212) 974-7245
Attorney for Defendant and Counterclaim Plaintiff Daniel Morel
UNITED STATES DISTRICT COURTSOUTHERN DISTRICT NEW YORK------------------------------------------------------------------xAGENCE FRANCE PRESSE,
Plaintiff,
v.
DANIEL MOREL
Defendant andCounterclaim Plaintiff,
v.
AGENCE FRANCE PRESSE
Counterclaim Defendant,And
GETTY IMAGES (US), INC., CBSBROADCASTING, INC., ABC, INC.,TURNER BROADCASTING SYSTEMS, INC.,THE WASHINGTON POST COMPANY and(AFP and Getty Licensees does 1 - et. al).
Third Party CounterclaimDefendants
------------------------------------------------------------------x
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT-COUNTERCLAIMPLAINTIFFS MOTION FOR SUMMARY JUDGMENT ON LIABILITY AGAINSTAGENCE FRANCE PRESSE FOR COPYRIGHT INFRINGEMENT, SECONDARYLIABILITY AND VIOLATION OF THE DMCA; AGAINST GETTY IMAGES FORCOPYRIGHT INFRINGEMENT SECONDARY LIABILITY AND VIOLATION OF
THE DMCA; AGAINST THE WASHINGTON POST FOR COPYRIGHTINFRINGEMENT AND VIOLATION OF THE DMCA.
ECF Case
10 Civ. 2730 (AJN) (MHD)
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .................................................................................................... 1STATEMENT OF FACTS ............................................................................................................. 8
1. AFP Steals Haiti Earthquake Images. ......................................................... 82. The Caption Correction............................................................................... 93. Morel and Corbis Compete With Getty Images ....................................... 104. The Kill Notice ......................................................................................... 135. Getty Images Failure To Implement The Kill Notice and Willful Failure
To Send Its Own Kill Notice Or Take Down The Iconic Infringing Images................................................................................................................... 14
PRIOR PROCEEDINGS .............................................................................................................. 16SUMMARY JUDGMENT STANDARD .................................................................................... 16ARGUMENT ................................................................................................................................ 17I. COUNTERCLAIM PLAINTIFFS MOTION FOR SUMMARY JUDGMENT ON
DIRECT COPYRIGHT INFRINGEMENTAGAINST THE COUNTERCLAIM
DEFENDANTS SHOULD BE GRANTED ..................................................................... 17A. Morel Owns Copyright In The Haiti Earthquake Images ..................................... 18B. The Undisputed Evidence Establishes That Counterclaim-Defendants Infringed
Morels 17 U.S.C. 106 Rights ............................................................................ 191. AFP and Getty Images Have Infringed 17 U.S.C. 106(1) ..................... 192. AFP and Getty Images Have Infringed 17 U.S.C. 106(5) ..................... 203. 17 U.S.C. 106(2) gives the copyright owner the exclusive right to create
derivative works ........................................................................................ 214. AFP and Getty Have Infringed 17 U.S.C. 106(4) .................................. 225. Direct Infringement of Morels ' 106(3) Right by Getty Images and Direct
Infringement by Getty Clients Does 1 - et al. ........................................... 226. The Washington Post is Liable for Direct Copyright Infringement ......... 29
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II. THERE IS NO GENUINE ISSUE OF FACT THAT AFPS ACTIONS AND GETTYIMAGESS ACTIONS ARE WILLFUL UNDER 17 U.S.C. 504(C)(2) ................... 30
III. SUMMARY JUDGMENT SHOULD BE GRANTED TO MOREL ON AFP ANDGETTY IMAGES SECONDARY LIABILITY ............................................................... 36A. Contributory Infringement .................................................................................... 36B. Vicarious Infringement ......................................................................................... 37C. Under 17 U.S.C. ' 504(C)(1) Morel is Entitled to Recover from a Secondarily
Liable Defendant, Multiple Awards Per Work Based on the Number of DirectInfringements ........................................................................................................ 38
IV. COUNTERCLAIM PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON HISDMCA CLAIMS UNDER 17 U.S.C. ' 1202(A) AND 17 U.S.C. ' 1202(B).................. 39A. Falsification of Copyright Management Information ........................................... 39B. Removal of Copyright Management Information................................................. 41C. 17 U.S.C. ' 1203 Entitles Morel to an Award of Statutory Damages of up to
$25,000.00 for each Violation of' 1202 .............................................................. 42V. MOREL IS ENTITLED TO SUMMARY JUDGMENT DISMISSING AFPS DEFENSE
OF STANDING ................................................................................................................ 42VI. MOREL IS ENTITLED TO SUMMARY JUDGMENT DISMISSING AFPS DEFENSE
OF LICENSE .................................................................................................................... 47VII. SUMMARY JUDGMENT SHOULD BE AWARDED TO MOREL ON GETTY
IMAGESS SECTION 512(C) SAFE HARBOR DEFENSE .......................................... 48A. Protection is only Available to Entities that Meet the Definition of Service
Provider See U.S.C. 512(K)(1) .......................................................................... 49B. The Undisputed Evidence Shows that Getty Images Meets None of the
Requirements for the Protection of the Safe Harbor ............................................. 491. Willful Blindness ...................................................................................... 502. Second a Service provider is only Immune from Liability when it Does
Not Receive a Financial Benefit Directly Attributable to the InfringingActivity .................................................................................................... 50
3. Reason by Storage..................................................................................... 50CONCLUSION ............................................................................................................................. 52
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TABLE OF AUTHORITIES
Page(s)
Cases:
F.M.A.S., Inc. v. Mimi So, 619 F. Supp. 2d 39, 51 (S.D.N.Y. 2009) ............................... 18
ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 625 (4th Cir. 2001) .......... 49, 51
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (S. Ct. 2505), 91 L. Ed. 2d 202 (1986) . 16
Arista Records LLC v. Lime Group LLC et al., No. 06-cv-5936 (KMW (S.D.N.Y.March 10, 2011) ........................................................................................................... 38
Arista Records LLC v. Usenet.com, Inc., 633 F. Supp 2d 124, 148 (S.D.N.Y. 2009) ..... 27
Barclay Capital et al. v. Theflyonthewall.com(10-1372-cv) ................................................................................................................ 7
Barry Z. Levine v. Elliot Landy and Landyvision, 1:11-cv-1038 (2011 U.S. Dist.LEXIS 149712 N.D.N.Y.) ........................................................................................... 22
Blizzard Entertainment, Inc. v. Alyson Reeves d/b/a Scapegaming, No. 09-7621, slipop. (C.D. Cal. Aug, 10, 2010) ...................................................................................... 42
Boisson v. Banian, Ltd., 273 F.3d at 268 (2d Cir. 2001) ................................................. 19
Bryantv. Media Right Productions, Inc., 603 F.3d 135, 143 (2d Cir. 2010, cert.denied, 131 S. Ct. 656 (2010) ...................................................................................... 31
Cartoon Network LP v. CSC Holdings, Inc. (Cablevision), 536 F.3d 121, 131 (2dCir. 2008) ..................................................................................................................... 24, 25, 27
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) ........................................................ , 1617
Columbia Pictures Television v. Krypton Broad of Birmingham, Inc., 106 F.3d 284(9th Cir. 1997) ............................................................................................................... 38
Corbis Corp. v. Amazon,com, Inc. et al., 351 F. Supp. 2d 1090 (W.D. Wash. 2004) ..... 12n.9
DiCola v. SwissRe Holding (North America), Inc., 996 F.2d 30(2d Cir. 1993) .............. 17
Eden Toys, Inc. v. Florelee Undergarment Co. Inc., 697 F.2d 27(2d Cir. 1982) ............ 18
Encyclopedia Brown Production Ltd. v. HBO, Inc., 25 F. Supp 2d 395(S.D.N.Y.1998) ............................................................................................................................ 34
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F.D.I.C. v. Giammettei, 34 F.3d 51(2d Cir. 1994) ........................................................... 17
Faulkner v. Natl Geographic Socy, 211 F. Supp. 2d 450 (S.D.N.Y. 2002) .................. 36
Gershwin Pub. Corp. v. Columbia Artist Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971) ............................................................................................................................ 36
Getty Images v. Advernet, 797 F. Supp 2d 399(S.D.N.Y. 2011) ........................................................................................................... 27
Gladstone Realtors v. Village of Bellwood, 442 U.S. 91 (1979) ..................................... 19
GMA Accessories, Inc. v. Olivia Miller, Inc., 139 Fed. Appx. 301 (2d Cir. 2005) ......... 31
In re Aimster Copyright Litigation, 334 F.3d 643, 650 (7th Cir. 2003) ........................... 31
Island Software & Computer Services, Inc. v. Microsoft Corp., 413 F.3d 257, (2d Cir.
2005) ............................................................................................................................ 27
Island Software and Computer Service, Inc. v. Microsoft Corp., 413 F.3d 257, 264(2d Cir. 2005) ............................................................................................................... 21
Island Software v. Microsoft, 413 F.3d 257 (2d Cir. 2005) 2005 U.S. App. LEXIS12766 ........................................................................................................................... 18
Knitwares, Inc. v. Lollytogo Ltd., 71 F.3d 996, 1010 (2d Cir. 1995)............................... 33
Lipton v. Nature Co., [**27] 71 F.3d 464, 472 (2d Cir. 1995) ........................................ 34
Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219, 251 (2d Cir. 2006) ................ 47
MAI Systems Corp v. Peah Computer, Inc., 991 F.2d 551 (9th Cir. 1993) ..................... 20n.11
Matthew Bender & Co., Inc. v. West Pub. Co., 15 F.3d 693, 706 (2d Cir. 1998) ........... 36
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 L. Ed. 2d 781(2005) ........................................................................................................................... 36, 37
Microsoft Corporation v. Logical Choice Computers, Inc., No. 99 C. 1300 WL 58950(N.D. Ill. Jan. 22, 2001) ............................................................................................... 23
N.A.S. Import Corp. v. Chenson Enter., Inc., 968 F.2d 250 (2d Cir. 1992)..................... 34
N.Y. Times Co. v. Tasini, 533 U.S. 483, 498 (2001) ........................................................ 23
Perfect 0, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002) ........ 51
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1173 (9th Cir. 2007) .................... 37
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Perfect 10, Inc. v. Google, Inc., 416 F. Supp 2d 828, 857 (C.D. Cal. 2006) ................... 37, 38
Perfect 10N Google, 508 F.3d 1146 (9th Cir. 2000) ........................................................ 28
Procter & Gamble Co. v. Colgate Palmolive Co., 199 F.3d 74 (2d Cir. 1999)............... 23
PSI Hoyos v. Pearson, 2012 U.S. Dist. LEXIS S.D.N.Y (2012) ..................................... 17
Psihoyos v. Pearson, 10 Civ. 59 12 (JPO 2010 U.S. Dist. LEXIS 27265 (S.D.N.Y.2012) ............................................................................................................................ 45
Random House, Inc. v. Rosetta Books LLC, 150 F. Supp. 2d 613 (S.D.N.Y. 2001) ....... 45
Religious Technology Center v. Netcom On-Line Communication Services, 907 F.Supp. 1361 (N.D. Cal. 1995) ....................................................................................... 25
Richard Feiner v. The New York Times Company, 2008 U.S. Dist. LEXIS 58454
(S.D.N.Y.2008) ............................................................................................................ 18
Righthaven LLC v. Ganner Alley, 2012 U.S. Dist. LEXIS 26917 at 2 ............................ 43
Salton, Inc. v. Philips Domestic Appliances and Personal Care, 391 F.3d 871 (7thCir.) .............................................................................................................................. 27
SEC v. Meltzer, 440 F. Supp. 2d 179 (E.D.N.Y. 2006) ................................................... 16
Silvers v. Sony Pictures Entmt, Inc., 402 F.3d 881, 884 (9th Cir. 2005) ......................... 42-43, 43
Softel, Inc. v. Dragon Med. Sci. Commens, Inc., 118 F.3d 955, 971 (2d Cir. 1997) ... 37
Software Freedom Conservancy, Inc. v. Best Buy Co., Inc., 2010 WL 2985320, at *3(S.D.N.Y. July 27, 2010) ............................................................................................. 31
Sony Corp. v. Universal City Studios, 464 U.S. 417, 435, 104 S. Ct. 774, 78 L. Ed. 2d574 (1984) .................................................................................................................... 37
Tracfone Wireless, Inc. v. ANADISK, LLC, 685 F. Supp. 2d 1304 (S.D. Florida, 2010) 42
United States v. Macpherson, 424 F.3d 183 (2d Cir. 2005) ............................................ 34
Update Art, Inc. v. Modiin Publg, Ltd., 843 F.2d 67, 73 (2d Cir. 1988) ........................ 22
Viacom Intl et al. v. YouTube, Inc. et al. , No. 103270, slip op. (2d Cir. Apr. 5, 2012) .. 31
Viacom Intl, Inc. v. YouTube Inc., No. 10-3270 cr (Ed Cir. Apr. 5, 2012) .................... 50
Ward v. Natl Geographic Soc., 208 F. Supp. 2d 429 (S.D.N.Y. 2002) .......................... 39-40
WB Music Corp. v. RTVO Commcn Grp., Inc., 445 F.3d 558, 540 (2d Cir. 2006) ........ 24
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Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101 (2d Cir. 2001) ...................................... 19, 31
Yurman Designs Inc. v. PAJ, Inc., 262 F.3d 101 (2d Cir. 2001) ..................................... 18
Statutes:
17 U.S. C. 101 ............................................................................................................... 19, 20
17 U.S.C 1202(b) .......................................................................................................... 1
17 U.S.C. ' 1203 ............................................................................................................... 42
17 U.S.C. ' 504(C)(1) ....................................................................................................... 38
17 U.S.C. ' 512 (C)(1)(A) ................................................................................................ 49
17 U.S.C. ' 106(1) ............................................................................................................ 19, 29
17 U.S.C. ' 106(3) ............................................................................................................ 19, 22, 28
17 U.S.C. ' 106(5) ...................................................................................................... 19, 20, 27, 28
17 U.S.C. 106(2) ........................................................................................................... 19, 22
17 U.S.C. 106(4) ........................................................................................................... 22
17 U.S.C. 1202(a) ......................................................................................................... 1
17 U.S.C. 1202(b) ......................................................................................................... 41
17 U.S.C. 1202(c) ......................................................................................................... 39, 42
17 U.S.C. 504(c) ........................................................................................................... 30
17 U.S.C. 504(c)(1) ....................................................................................................... 30, 30n.12
17 U.S.C. 504(c)(2) ....................................................................................................... 30
17 U.S.C. 101, ............................................................................................................. 1
17 U.S.C. 1202 ............................................................................................................... 39, 42
17 U.S.C. 106 ................................................................................................................... 1, 19, 43
17 U.S.C. 504(c)(2) .......................................................................................................... 35
17 U.S.C. 1202(a) ......................................................................................................... 39
DMCA 1202(a) ............................................................................................................. 16
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DMCA 1202(b) ............................................................................................................. 16
Local Rule 56.1 ................................................................................................................ 8
Section 512(c) of the DMCA ........................................................................................... , 48,49
U.S.C. 512(K)(1)........................................................................................................... 49
Other Authority:
3 Nimmer On Copyright................................................................................................... 22
4 Nimmer on Copyright. 14.04 ..................................................................................... 38
Francis Reynolds, Fair Game: Intellectual Property in the Digital Age........................ 1n.1, 18
H.R. REP. No. 105-551 (II), at 50 ................................................................................... 51
H.R. Rep. No. 105-551(II), at 49-50 (1998) ..................................................................... 49
H.R. Rep. No. 94-1476, at 64-65 (1976), reprinted in 1976 U.S.C.C.A.N. 5659 ........... 21
MELVILLE B.NIMMER DAVID NIMMER,NIMMER ON COPYRIGHT ................................ 37, 41, 49
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PRELIMINARY STATEMENT
The means to plunder grow more prevalent every day, so much so that somewriters feel the need to ask, is copyright relevant . . . while society may seem tobe moving in that direction, no matter how much this plundering may seem tochip away at our intellectual hierarchies, the politics of allusion and borrowingcontinues to be shaped by the existing power dynamics of ownership. Thats whyadvocates of a world of free and therefore free-flowing content sometimes riskshortchanging those who have historically been wronged by cultural andintellectual appropriation or outright theft. when ideas, sounds, images aretaken without consent,, in todays world, someone ends up losing in terms ofgetting the credit and in terms of getting the money that sometimes accompaniesthat credit.1
Defendant-Counterclaim Plaintiff Daniel Morel (Morel or Counterclaim Plaintiff)
submits this Memorandum of Law in Support of his motion for an order granting Morel
summary judgment against Agence France Presse (AFP), Getty Images (US) (Getty Images)
and The Washington Post Company (the Washington Post) (collectively, the Counterclaim
Defendants) under the Copyright Act of 1976 (17 U.S.C. 101, 106, et seq) (the Act) for
direct copyright infringement and for summary judgment for vicarious and contributory
infringement against AFP and Getty Images.
Morel claims that notwithstanding that the Counterclaim Defendants are liable jointly and
severally for acts of infringement, the record shows that there is no genuine factual dispute that
each of the Counterclaim Defendants is liable individually for acts of willful infringement.
Additionally, Morel seeks summary judgment on liability under the Digital Millennium
Copyright Act (DMCA) (17 U.S.C. 1202(a) for falsifying his copyright management
information (CMI)2
1 Francis Reynolds, Fair Game: Intellectual Property in the Digital Age
with intent to induce infringement and a claim for removal of CMI also
with intent to induce infringements. (17 U.S.C 1202(b))
2 Dckt 52 Order, Judge Pauley noted that AFP did not contest that its credit line constitutes CMI.
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Morel also moves for summary judgment on the inapplicability of the affirmative
defenses raised by AFP of standing and non-exclusive license and, inter alia, the DMCA Safe
Harbor Defense and contribution raised by Getty Images.3
Content sharing and social networking sites such as Twitter, Facebook and YouTube areimportant tools for reporters and editors, they may provide first tip-off to breaking newsevents and statements or be the source of otherwise unobtainable photographs and videos.. . .The use of this material carries significant risks to the agencys reputation forreliability and accuracy, however, notwithstanding any legal or ethical issues. Forwhatever reasons, people may post content that is invented or distorted. Theymay reproduce someone elses images. And they may retain or have abusedcopyright or expectations of privacy.
See AFPs English Service Stylebook section Rules for using content from online
networks such as Twitter, Flickr and Facebook.
On January 12, 2010, 4:53pm EST, the worst earthquake in 200 years 7.0 magnitude
struck Haiti.
Daniel Morel, a well-known and highly regarded Haitian-born veteran professional
photojournalist, was in Port-au-Princes central street, Grande Rue, when the quake struck.
Narrowly escaping injury, he hit the streets to photograph the death and destruction around him.
Returning at dark to his hotel, the landmark Oloffson, he found his computer intact and
began editing his photographs. Few journalists and professional photographers were on the
ground at the time of the earthquake, and even fewer were able to transmit photos on the
Internet. Morel, a former Associated Press (AP) staffer, realized the importance of distributing
his photographs as quickly as possible. He did that, and during an earthquake still in progress
with aftershocks of a 5.0 magnitude every 15 or 20 minutes.
3 Counterclaim Plaintiff refutes many of the Counterclaim Defendants affirmative defenses in the context of hisarguments in support of his own arguments in support of his motion to the extent any of the myriad other affirmativedefenses are not waived but will be addressed in Counterclaim Plaintiffs Answer and damage phase of thislitigation.
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Like many professional photojournalists, Morel had dreams of being in the right place at
the right time the moment to capture and document a major breaking news event before any
of your colleagues arrive on the scene.
At approximately 6:10 PM, Isabel Morse, daughter of the hotel proprietor Richard Morse,
helped Morel to connect to the Internet. There was no power but Morel had been allocated a
half-hour on the hotels battery. Using his Twitter account @photomorel and password, Morel
logged onto Twitpic, a third-party application of Twitter. Twitpics ToS provides, inter alia, all
images uploaded are copyright their respective owners. He uploaded his first image at
6:13 PM and advertised photos/videos from photomorel. He continued to upload 17 images
until 7:28 PM. At 6:26 PM, Morel uploaded XVALY with a link to his Twitter. Morel added on
his Twitpic page the attributions Morel, DanielMorel@photomorel, photomorel.
From 6:53 PM to 7:57 PM, Lisandro Suero (Suero), of the Dominican Republic who
was not in Haiti at the time, copied Morels photographs, posted them on his Twitpic page, and
tweeted at 7:01 PM, that he had exclusive photographs of the catastrophe for credit and
copyright. Suero is not a photographer and was not in Haiti during the earthquake. Suero did
not attribute the photographs to Morel.
In such a decentralized news environment, with little power and electricity, no telephone
service, the international news media tapped into Haitis online community to be its eyes and
ears on the ground. The Internet and social media sites were proving vital. Haiti, # Haiti and
Earthquake became trending topics on Twitter.4
Morels photos were among the first transmitted from Haiti. Morse @ RAM Haiti, well-
known to the international journalist community, tweeted that Photomorel@yahoo.com had
photos at 7:59 PM. There was a media frenzy to acquire images. That evening, numerous
4 Channel 4 News Twitter List
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American and foreign news outlets emailed Morel and posted on Twitpic asking to purchase his
photos for publication. Four CBS News representatives contacted Morel seeking to purchase his
photographs and offering to credit him as author. In addition, five CNN representatives
contacted Morel, complimenting him on his photographs, as did countless others. For example,
at 8:22:31PM, Katy Byron e-mailed Morel at photomorel@yahoo.com Hello from CNN I
saw on Twitter that you have some photos of the earthquake damage . . . At 8:27 PM, Morel
replied Ok, thanks you pay a lot of money for these photo. I have evething.
Vincent Amalvy, Photo Chief for Agence France Presse (Amalvy), was desperate to
acquire photographs. At 7:12 PM,
5
Getty Images is an image licensing company that, pursuant to a mutually beneficial
content partnership agreement, holds exclusive rights to market AFPs images in North
America and the U.K.
Amalvy forwarded an email to wapix@afp.com
http//picfog.com/search/Haiti. He tweeted to Suero to acquire images at 7:15 PM and at
9:42 PM he emailed Morel at photomorel@yahoo.com. Amalvy received no response from
either Suero or Morel. At 7:26 PM, Amalvy forwarded a 7:22 PM email to wapix@afp.com
http://radioteleginen.ning.com/profiles/blogs/pictures-of-haiti. At 7:36 PM, Amalvy sent an
email to wapix@afp.com with the image attachment haiti 1, a cell phone image by Carel
Pedre, Haitian journalist, obtained by Amalvy from Radio Tele Ginen. At or about 11:23 PM,
Amalvy downloaded Morels images to his computer and from 11:23 PM 11:36 PM, transmits
at least eight of Morels images (the Iconic Images) on the AFP wire feed and to its photo
database called ImageForum, where the Iconic Images were watermarked with AFPs logo,
falsely credited to Lisandro Suero stringer and sold worldwide to subscribers, customers,
clients, and partners of AFP, including Getty Images.
5 Facts in this paragraph are Amalvy Dep. Ex. 7-B and Morel 56.1.
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Amalvy was subsequently to relate to AFPs Global News Director in August 2010.
At the time of the earthquake and in the hours that followed, I was the only one indirect contact with this bizarre situation with no contact with AFP Haiti and theappearance on a social networking site of photos of quality . . .
After several hours, there was no hope to receive an AFP product or have a photoor text contact.
The results - AFP was a success and on the front pages for the three daysfollowing the catastrophe.
we are not on a classic situation, so that, I mean guideline doesnt care aboutthis kind of situation. (Amalvy Dep. Ex. 26)
Jean Francois Leroy, Director of Visa Pour lImage told Peggy Porquet, Corbis, Senior
Editor, News, EMEA, when she discussed including Morel in Visa for 2010, on February 2,
2010. that he will plan to do an exhibition, but he is interested in this story of Daniel Morel in
this sense of how agencies can invent the name of the photographer and recoup pictures
without any check. (COR 2118)
AFPs actions, Amalvys deposition testimony to the contrary, are unique among the wire
services. AP contacted Morel, but could not make a deal and did not use the images.
See http://www.bjp-online.com/british-journal-of-photography/report/1645545/-buymypic.
See also http://www.theatlantic.com/technology/archive/2011/04/photojournalism-in-the-age-of-
new-media/73083/.
This case is in many respects a traditional case of internet piracy in which the
counterclaim defendants are liable for direct and secondary liability for copyright infringement.
This Court should not be taken in by AFPs and Getty Imagess efforts to wrap themselves in
sham defenses to avoid liability by arguing that Morels posting of the images on Twitpic meant
they were available for distribution free to AFP or Getty Images defense that copyright law
doesnt apply to us based on the DMCA Safe Harbor. Getty Images operations and aspiration to
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be the number one in the licensing of digital images owned by it or its partners such as AFP,
represents a business model far from the kind of passive innocent service provider conduct that
was before Congress when it enacted the DMCA.
Both AFP and Getty Images knew that they had no right to distribute Morels images. At
7:04 PM Andreas Gebhard, New York Picture Desk Manager, Getty Images (Gebhard),
e-mailed Sandy Ciric and Pierce Wright with a cc to Francisco (Pancho) Bernasconi Senior
Director of Photography News and Sports at Getty Images, (Bernasconi), not sure if its
worth contacting twitter.com/photomorel. Name is Daniel Morel. Dont know anything else.
Pix on twitter look very decent. At 7:07 PM, Bernasconi replied Former AP staff shooterI
dont want to contact directly now. He normally works for Corbis now (Bernasconi Dep.
Exs. 1 (G002765) and 2 (G002766), Cameron Dep. Ex. 17 (G002967))
Gettys Director of Photography knew that the photos being distributed by Getty had
been taken by Morel, and Morel was represented by Corbis, a competitor. Both AFP and Getty
knew they had infringed Morels copyright and attempted to conceal it for financial gain.
Jeremy Nicholl, The Russian Blog observed, Since 2007 Getty Images has been
pursuing business in the UK for multiple cases of copyright infringement. Ironically, the
infringers being chased by Getty complain that the agency is being unreasonable and heavy-
handed: terms like bullying and threatening echo AFPs complaint of Morels antagonistic
assertion of rights and inevitably the defense the infringers present against Getty Images is in
many cases exactly what AFP/Getty present against Morel: the pictures are on the internet so
we thought they were free.
Morels 56.1 Statement confirms that Getty Images, notwithstanding its AFP made me
do it defense was an active not a passive participant in the infringing activity. When AFP
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issued a caption change, Getty Images inserted AFP as the name of the photographer in certain
assets that were sent with that entry left blank. When AFP issued a kill notice, Getty Images
did not find it necessary to do so. Not for us to send as it is not our photo. The kill would have
to be sent by AFP.
AFP and Getty, in a stunning reversal of their traditional roles as aggressive protectors of
content, now claim free rider status. That is a term coined by AFP in joining an Amici Curiae
Brief filed in the Second Circuit inBarclay Capital et al. v. Theflyonthewall.com (10-1372-cv).
The brief pointed out that the vulnerability of news originators has grown exponentially in the
internet eraWith a simply computer program and a few keystrokes, a free rider can
immediately copy the valuable news content from the internetThe consequences of unchecked,
widespread free riding on a news organization would be devastating to publishers and costly to
society.
Morel claims the same entitlement to copyright protection for professional photojournalists
as AFP and Getty claim for themselves. Licensing is an important source of revenue for content
creators, and it is a fact as true for photographers and photojournalists as it is for Getty Images. The
arguments advanced by both AFP and Getty Images essentially a business model gone wild -
would essentially permit the media or any other entity to take a photographers livelihood, embodied
in the intellectual property in his photographs, and commercialize it through unauthorized
transmission, distribution and licensing, without attribution or reasonable compensation to the
photographer for their uses. Taken to its extreme, any media company who links a twitter page to its
website, including Getty Images and AFPs ImageForum would expose the content of such site to
free riders. It is indeed ironic that AFP and Getty Images, who claim to consider the subject of
copyright protection of the utmost importance now accept the arguments of their former rivals such
as Google and YouTube.
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STATEMENT OF FACTS
The counterclaim plaintiff respectfully refers the Court to Morels Local Rule 56.1
Statement (Morel 56.1), which is incorporated herein by reference. The brief statement below
is intended to highlight significant evidence as well as provide additional facts obtained since the
filing of the Third Amended Answer, all of which are in Morel 56.1.
The pleadings, the discovery and disclosure materials on file and the Declarations
provide that there are no genuine issues of fact with respect to the material allegations of the
Third Amended Answer. However, a review of internet archives, documents produced by
Twitter and Twitpic, AFP, Getty and CNN, have permitted a more accurate timeline and confirm
beyond peradventure the willfulness of the Counterclaim Defendants, the theft of Morels Haiti
earthquake images and the reckless disregard of Morels rights in those images by their
subsequent acts of infringement.
1. AFP Steals Haiti Earthquake Images.At 7:48 PM,6
6 The chronology continues from the Preliminary Statement.
Amalvy sent an email to wapix@afp.com with the image attachment
haiti 2. At 9:03 PM, Amalvy sent an email to wapix@afp.com with an image attachment
haiti 3. At 9:03 PM, Amalvy sent an email to wapix@afp.com with the image attachment
haiti 4. As set forth in Morel 56.1, there is no genuine dispute that the above images were
taken from the Radio Tele Ginen website. At 9:07 PM, Amalvy sent an email to
wapix@afp.com with an image attachment haiti 5. The image by Tequila Minsky was sent via
e-mail at 7:00 PM to The New York Times in exclusive. The image was never posted to Twitpic
or social media site. At 9:38 PM, Amalvy sent an email to wapix@afp.com with an image
attachment haiti 7. At 9:42 PM, Amalvy emailed Morel at photomorel@yahoo.com, Hello
I am the AFP Photo Editor I am searching to contact you Do you have images of the
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earthquake You can send them to me at this address vincent.amalvy@afp.com Thank you.
At 9:44 PM, Amalvy sent an email to wapix@afp.com with an image attachment haiti 7. This
image is Minskys and was stolen by AFP from The New York Times website.
CNN had obtained several of Morels images from Twitpic. At 10:59 PM, David Clinch,
former Senior International Editor at CNN International, sent the email, We can use these
photos with credit to Photographer Daniel Morel: to Haiti (TBS list-serve with a cc to the CNNI
Supervisors (TBS) list-serve: http://twitter.com/photomorel. ( 63) At 11:01 PM,
Lisa Mirando sent an e-mail forward Bryan Bell including Clinchs 10:59 PM These are
incredible images. At 11:04 PM Bell replied Can we get these stills put to tape with a courtesy
burned in them? Thanks! At 11:05 PM Erica Fick replied to Bell This one is on the nyt
homepage right now courtesied to AFP/Getty - http://twitpic.com/xvj75 how are we
sourcing these? XVJ75 is Morels TwitPic image ID number for Iconic Image # 6. (62)
Amalvy downloaded at least eight Morel Haiti earthquake images.7
2. The Caption Correction
( 67) Then
Amalvy began transmitting the images to WAPIX beginning with Iconic Image # 6 at 11:23 PM
and concluding with Iconic Image # 5 at 11:36 AM. ( 68)
The record conclusively demonstrates that AFP had actual or constructive knowledge of
Morels Twitpic page and knew the images were his whether the source of this knowledge was
CNN, The New York Times Lede Blog, PicFog, Twitter search, Twicsy, Twitter trending topic
#Haiti, or Twitter @photomorel. Thus, AFP had knowledge that Morel was the author of the
7 There is a dispute about the number of images Amalvy downloaded and stored in his computer as the computerfiles have not been produced. Amalvy transmitted only seven of Morels Iconic Images to WAPIX, but eight are inImageForum.
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Iconic Images when it uploaded them without his permission and transmitted them to WAPIX,
Getty Images and ImageForum through the feed.8
January 13, 2010 at 2:06 AM, Benjamin Fathers, @34Benjie, (Fathers), used Twicsy a
search engine for images linked to Twitter or Twitter #Haiti to link to Morel and tweeted, Hi
Daniel, great pictures from such a difficult environment. I work for AFP, please e-mail
ben.fathers@afp.com. Fathers explained that #Haiti and #Haiti earthquake were trending topics
on Twitter and easily found Morels images and information about him. Samantha Dubois his
Deputy in Paris, via simple internet search established that Morel worked for AP in Haiti in 2003
and in 2005 for Reuters. ( 88) At 4:36 AM, Fathers e-mailed Amalvy Vincent Im not
certain Lisandro Sueros photos are his but they belong to Daniel Morel Look
http://twitpic.com/xve5d. ( 119) At 4:45 AM, Samantha Dubois, Deputy to the Chief of Desk,
AFP, Paris, (Dubois), e-mailed Amalvy with a cc to Fathers, Orye and Antonov I found some
pictures made by Daniel Morel in Haiti in 2003 with AP and in 2005 with Reuters. ( 120)
AFP had not obtained Morels approval for the use of his Haiti earthquake images. The caption
states Credit: AFP; Source: AFP; Photographer: Daniel Morel (stringer).
86)
3. Morel and Corbis Compete With Getty ImagesJanuary 13, 2010 at 5:45 AM, Phyllis Galembo, a friend of Morels (Galembo),
tweeted Danielplease contact Rita at Corbisshe is trying to contact you!!! you are not
getting credit. ( 138)
January 13, 2010 at 8:52 AM, Meredith Kamuda, Senior News Editor Americas at
Corbis, (Kamuda), e-mailed Anil Ramchand, Director, News Sports, Entertainment & Media,
Media Partnerships at Corbis, (Ramchand), Peggy Porquet, Senior Editor, News, EMEA at
8 It is disputed whether in view of the foregoing, Amalvy downloaded Morels Iconic Images from Morels TwitPicpage or Sueros TwitPic page or Radio Tele Ginen. It is a distinction without significance.
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Corbis (Porquet), and Rita Rivera, Morels photo editor at Corbis, (Rivera). Hey all Just
saw while going through pics from news sources, looks like Daniel Morel was taken up by AFP-
Getty. Weve missed the immediate News window. Hopefully Olivier can get us some
search and rescue, clean up and Aid coverage! ( 147)
January 13, 2010 at 9:09 AM Rita e-mailed Galembo with a cc to Morel Now I see the
images are with a Chinese agency he is not getting any credit Xinhua/Radioteleginenhaiti.com.
Daniel if you can unpost all the Twitter you are getting ripped off, and someone is telling me
they see your name with Getty! I hope not. ( 149)
At 9:31 AM Rivera e-mailed Daniel Morel photo, he is twittering and I see that Xinhua
has taken them without his credit, can we remove Xinhua off of his photos And just give him the
credit? At 9:40 AM Porquet replied Also as I mentioned, Xinhua credited them
Radioteleginenhaiti.com. Hes already with Getty and AFP. Xinhua transmitted us only a
similar picture. He hasnt filed us. he may has also conclude a deal with Xinhua to have a
different credit as it happens often. So dont remove them please! At 9:41 AM Rivera replied
I wont remove them. I am pissed!!!!!!!!!! At 9:42 AM, Porquet replied Its a matter of
money I think. In that case, the photographers are replying to the first one to call and to offer
money. I had the case with the 2005 London Bombing. 154)
January, 13, 2010 at 12:54:05 PM, Rivera replied to Morel really the photos on NY
Times says afp/getty adn your name. At 12:58 P.M., Morel responded to Rita I only send one
photo to nbc news. At 12:58:34 P.M. Rita e-mails ok so you are saying that Xinhua probably
stole them from Twitter, please try and remove images from Twitter! At 1:00 P.M., Morel
replied to Rivera I just did. ( 154)
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January 14, 2010 at 9:57 AM Allen Stephens, Senior Editor at Getty Images, e-mailed
Bernasconi:
Hi Pancho,
This AFP image from Haiti, 95738474, was pulled from the site. Is this one of theTwitter/Facebook/ Flickr pix about which you were talking, or is there anotherreason I should tell the client? Here is the info as it appears on Image Forum.
HAITI, Port-au-Prince : ----EDITORS NOTE -----CORRECTING NAME OFPHOTOGRAPHER----A Haitian woman is helped after being trapped in rubbleon January 12, 2010 in Port-au-Prince following a huge earthquake measuring 7.0rocked the impoverished Caribbean nation of Haiti, toppling buildings andcausing widespread damage and panic, officials and AFP witnesses said. Atsunami alert was immediately issued for the Caribbean region after theearthquake struck at 2153 GMT. AFP PHOTO/DANIEL MOREL ==
RESTRICTED TO EDITORIAL USE/NO SALES ==
At 9:59 AM, Bernasconi replied AFP moved it as Daniel did put it on Twitter but
CORBIS has the rights to license Daniels photosand we got a take down notice from Corbis
yesterday. (Bernasconi Dep. Ex. 4).
4. The Kill NoticeJanuary 14, 2010 at 2:16 PM Hambach e-mailed Fathers and Amalvy US copyright law
requires that the image be pulled and removed. Besides, the legal dpt in Paris has given us
directives on how to proceed. ( 214)
January 14, 2010 at 2:58:56 PM, a form MANDATORY KILL notice was sent, which
consists of sending via satellite a request to kill the images and an email to all third parties
including Getty to delete the images from their archives. ( 216)
January 14, 2010 AFP at 3:14 PM, AFP issued a mandatory kill via e-mail to Getty
Images and a select number of other clients:
==MANDATORY KILL== MANDATORY KILL== MANDATORY KILL== Due to a
recent copyright issue, we kindly ask you to kill and remove from all your systems Daniel Morel
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pictures from Haiti. We are sorry for any inconvenience; thank you for your cooperation.
==MANDATORY KILL== MANDATORY KILL== MANDATORY KILL== ( 217)
AFP only issued a mandatory kill for Daniel Morel pictures, which did not reference
the Suero images. ( 219) January 14, 2010 at 3:24 PM, Bernasconi sent an e-mail forward
including the mandatory kill to Cameron FYI, thought youd enjoy this especially the
excuse. ( 226)
Bernasconi explained at his deposition that the copyright notice sent out with the kill was
insufficient to assist clients and customers in determining whether to pull the image or not and
that more detail should have been provided. Bernasconi was later to say in an e-mail to
Eisenberg on March 9, 2010 at 10:56 AM Not for us to send as its not our photo. The Kill
would have to have been sent by AFP. ( 227)
January 14, 2010 at 3:59:25 PM, Gebhard replied to Hambachs 3:24 PM e-mail You
guys had re-sent them yesterday, to correct the photogs name, too At 4:23:08 PM Hambach
replies No comment. :-/ ( 228)
January 14, 2010 at 4:31 PM, Porquet e-mailed Ramchand saying that shes advised the
sales in Paris since many newspapers reproduced Daniels pictures. A few minutes later Porquet
e-mailed that she obtained the first newspapers with Morel pictures: La Liberation, Le Monde
and Le Figaro. Rivera who was copied responded Merci!!!! Too bad Daniel and Corbis are not
there. ( 229)
5. Getty Images Failure To Implement The Kill Notice and Willful FailureTo Send Its Own Kill Notice Or Take Down The Iconic Infringing Images
February 17, 2010 at 4:11 PM PST, Walker e-mailed Cameron:
. . . As a result of the images remaining on our site for so long, we believe there may havebeen an incredible amount of licensing of these images by Getty/AFP. We have founddozens of websites displaying Mr. Morels images with the Getty/AFP credit, bothnaming Lisandro Suero and Daniel morel as the photographer. This is quite concerning
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for our photographer as well as Corbis . . . Also, what steps, if any, have been taken byGetty to remedy this situation? If Getty has licensed the images, have your clients beennotified that the images are being used without proper authorization . . .
At 7:21:28 PM PST, Cameron replied Jennifer, the best contact for you at AFP is Eva
Hambach, ccd here . . . At 10:36 PM EST, Hambach replied Will check into this in the
ayem. February 18, 2010 at 6:28 PM, Hambach replied . . .The exchange of e-mails has been
forwarded to our legal department at AFP headquarters in Paris. Our counsel will get back to
you early next week and address all concerns regarding Daniel Morels images . . . ( 250)
March 1, 2010, Morels counsel sent a letter requesting that AFP cease and desist from
using Morels photographs and instruct its subscribers to do the same. Morels counsel also sent
cease and desist letters to other news outlets and charities as well as Getty Images. Despite these
requests, many AFP/Getty Images licensees persisted in publishing and, in some cases,
continue to publish Morels photos, many of which credit Suero as the photographer. Getty
Images although it had actual knowledge of the misattribution of the Iconic Images to Suero,
Corbis claim to exclusive representation of the Haiti earthquake images and the kill notice,
continued to license the Iconic Images for both editorial use and commercial use;
notwithstanding, the No Sales Editorial Use Only which appeared on the caption.
Not until April 8, 2010 did Getty Images reach out to its customers. Because it failed to
send out thumbnails and the images had for the most part been removed from the customer-
facing website, not until June 22, 2010 did any effective campaign begin.
Getty Images, Catherine Calhoun, Senior Director Media Sales, did not know of the
licensing by Getty Images of Morels Iconic Images until March 17, 2010 and then only because
Morels lawyer was sending cease and desist letters to Getty Imagess clients. Bernasconi, at his
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deposition, was of the erroneous belief that Getty Images service representatives had contacted
Getty clients on or about March 9, 2010, to discuss Morels Iconic Images with them.
PRIOR PROCEEDINGS
Judge William Pauley III in the Memorandum and Order dated January 14, 2011
(Memorandum orDckt 52) set out the applicable legal principles with respect to direct and
secondary liability for copyright infringement, the DMCA 1202(a) and 1202(b), and AFPs
defense of license.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The
burden is on the moving party to establish the lack of any factual issues. (SeeCelotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The very language of this
standard reveals that an otherwise properly supported motion for summary judgment will not be
defeated because of the mere existence of some alleged factual dispute between the parties. (See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 (S. Ct. 2505), 91 L. Ed. 2d 202 (1986)).
Under Rule 56(e), the party opposing the motion may not rest upon the mere allegations or
denials of his pleadings, but . . . must set forth specific facts showing there is a genuine issue for
trial. Anderson, 477 U.S. at 248. The district court must also be mindful of the underlying
standards and burdens of proof . . . because the evidentiary burdens that the respective parties
will bear at trial guide district courts in their determination of summary judgment motions. SEC
v. Meltzer, 440 F. Supp. 2d 179, 187 (E.D.N.Y. 2006).
It is well settled that when a party moves for summary judgment, there is no express or
implied requirement in Rule 56 that the moving party support its motion with affidavits or other
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similar materials negating the opponents claim Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Where a plaintiff uses a summary judgment motion, in part, to challenge the legal
sufficiency of an affirmative defense--on which the defendant bears the burden of proof at trial--
a plaintiff may satisfy its Rule 56 burden by showing that there is an absence of evidence to
support an essential element of the non-moving partys case. F.D.I.C. v. Giammettei, 34 F.3d
51, 54 (2d Cir. 1994) (quoting DiCola v. SwissRe Holding (North America), Inc., 996 F.2d 30, 32
(2d Cir. 1993)) .. PSI Hoyos v. Pearson, 2012 U.S. Dist. LEXIS S.D.N.Y (2012).
ARGUMENT
I. COUNTERCLAIM PLAINTIFFS MOTION FOR SUMMARY JUDGMENT ONDIRECT COPYRIGHT INFRINGEMENTAGAINST THE COUNTERCLAIMDEFENDANTS SHOULD BE GRANTED
Getty Imagess website posts Copyright 101: Copyright and Content Licensing. The
document states in pertinent part:
Who owns copyrights?Any freelance artist who creates a copyrighted work . . .
Whats copyright infringement?Infringement is any violation of the exclusive rights of the creator.
Examples of imagery infringement include:Use of whole or of any image without permissionUse beyond the scope of a license or permission
What are common misconceptions about copyright?If an image is on the Internet, its in the public domain and I dont need
permission to use it.If theres no copyright notice, I dont need permission to use it.If I dont make profit from the use, I dont need permission.
(Bernasconi Ex. 17)
Ironically, AFP and Getty Images affirmative defenses resemble the anecdotal
misperception of a lay internet user. Such sophisticated content providers as AFP and Getty
Images, known for their aggressive protection of content, should be held to a higher standard of
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care, particularly in view of the reliance of major media companies on their competence to
provide accurate imagery and information. AFP failed Copyright 101 ( __).
To prevail on a claim of copyright infringement, the plaintiff must demonstrate both (1)
ownership of a valid copyright and (2) infringement of the copyright by the defendant.
Yurman Designs Inc. v. PAJ, Inc., 262 F.3d 101, 108-109 (2d Cir. 2001);R.F.M.A.S., Inc. v.
Mimi So, 619 F. Supp. 2d 39, 51 (S.D.N.Y. 2009) (requiring ownership of a valid copyright and
unauthorized copying of the copyrighted work);Island Software v. Microsoft, 413 F.3d 257
(2d Cir. 2005) 2005 U.S. App. LEXIS 12766 (requiring valid copyright in work infringed and
that defendant infringed the copyright by violating one or more) 17 U.S.C. 106 rights, at p. 7).
A. Morel Owns Copyright In The Haiti Earthquake ImagesThe Copyright Act authorizes two types of claimants to sue for copyright infringement:
(1) owners of copyrights; and (2) persons who have been granted exclusive licenses by owners of
copyrights. Eden Toys, Inc. v. Florelee Undergarment Co. Inc., 697 F.2d 27, 32 (2d Cir. 1982)
(citing 3 NIMMER ON COPYRIGHT 12.02 at 12-25 (1982)).
There is no genuine issue of material fact that Morel is the sole owner of the rights in the
Haiti Earthquake Images and was at the time of the theft of the Haiti Earthquake Images by
AFP/Getty Images.10
Morel holds a valid copyright registration in the Haiti Earthquake Images VA-701-374.
See Richard Feiner v. The New York Times Company, 2008 U.S. Dist. LEXIS 58454
(S.D.N.Y.2008) ([C]omplaints for copyright infringement . . . alleging present ownership by
Morel owns the copyright in the Haiti Earthquake Images, including Iconic
Images 1-13, as set forth in the Third Amended Answer.
10 AFPs argument that Morel lacks standing and thus that this Court lacks subject matter jurisdiction is illconceived. AFP is in fact arguing that Morel is in breach of his contract with Corbis. This meritless argument isaddressed in _____________.
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plaintiff, registration in compliance with applicable statute, and infringement by defendant, have
been held to be sufficient to create statutory standing.)
Morel has Article III standing as well as statutory standing. There is no doubt that he has
suffered a distinct and palpable injury to himself that is likely to be redressed if the requested
relief is granted. See Gladstone Realtors v. Village of Bellwood, 442 U.S. 91, 100 (1979).
On February 23, 2010, Morel timely submitted his photographs for expedited copyright
registration, Iconic Images 1-13, with the United States Copyright Office, and obtained
certificate VA-701-374. Morels copyright registration certificate isprima facie evidence of
both the validity of the copyright and the originality of the work. Boisson v. Banian, Ltd., 273
F.3d at 268 (2d Cir. 2001). Because registration occurred within three months of the alleged
infringement, Morel is entitled to statutory damages and attorneys fees. 17 U.S.C. 412.
Morel has not assigned any of his exclusive rights in the Iconic Images to a third party
(see Article __ Standing), Article __ (License).
B. The Undisputed Evidence Establishes That Counterclaim-DefendantsInfringed Morels 17 U.S.C. 106 Rights
Section 106 of the Copyright Act (the Act) grants copyright holders a bundle of
exclusive rights. This case implicates inter alia four of those rights: the right to reproduce the
copyrighted work in copies, the right to create derivative works based on the work, the right to
distribute copies of the copyrighted work, and the right to display the copyrighted work.
17U.S.C. 106(1)(2)(3)(5).
1. AFP and Getty Images Have Infringed 17 U.S.C. 106(1)AFP and Getty Images reproduced exact copies of Morels Iconic Images in high
resolution without his permission. Copies as defined in the Act are material objects . . . in
which a work is fixed by any method and from which the work can be . . . reproduced. Id.
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101 Definitions. A work is fixed in a tangible medium of expression where its embodiment .
. . is sufficiently permanent or stable to permit it to be reproduced. For example, in the
computer/internet context uploading files, storing files in a database and downloading the files
and saving to RAM all constitute the making of copies and violate the reproduction rights.11
2. AFP and Getty Images Have Infringed 17 U.S.C. 106(5)In order for Morel to prevail, AFP and Getty Images must have displayed Morels
photographs without his permission and made that display available to the public. The Act
defines display as showing a copy of a work. 17 U.S. C. 101. Definitions. The Act defines
a copy to include the material object in which the work is first fixed. Id. The legislative history
of the Act makes clear that since copies are defined as including the material object in which
the work is first fixed, the right of public display applies to original works of art, such as digital
photographs, as well as to reproductions of them.
The legislative history goes on to state that display would include the projection of an
image on a screen or other surface by any method, the transmission of an image by electronic or
other means, and the showing of an image on a cathode ray tube, or similar viewing apparatus
connected with any sort of information storage and retrieval system. Id. This language
indicates that showing Morels images on a computer screen would constitute a display.
The Acts definition of the term publicly encompasses a transmission of a display of a
work to the public by means of any device or process, whether the members of the public
capable of receiving the performance or display receive it in the same place or in separate places
and at the same time or at different times. 17 U.S.C. 101. A display is public even if there is
no proof that any of the potential recipients was operating his or her receiving apparatus at the
11MAI Systems Corp v. Peah Computer, Inc., 991 F.2d 551 (9th Cir. 1993), holding that loading a program into acomputer results in copying if it is of more than transitory duration.
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time of the transmission. H.R. Rep. No. 94-1476, at 64-65 (1976), reprinted in 1976
U.S.C.C.A.N. 5659, 5678. For example, by making Morels images available on their websites,
AFP and Getty Images are allowing public access to those images. The ability to view those
images is effectively unrestricted to anyone with a computer and internet access.
The legislative history emphasizes the broad nature of the display right, stating that each
and every method by which the images or sounds comprising a performance or display are
picked up and conveyed is a transmission, and if the transmission reaches the public in [any]
form, the case comes within the scope of [the public performance and display rights] ofsection
106. Id. at 64. The evidence is irrefutable that AFP and Getty Images infringed upon Morels
public display right and induced and substantially assisted their clients, customers and
subscribers to do so. (See Article III)
Similarly, there is no dispute the display of Morels Haiti Earthquake Images on the
Washington Post website and in its photo gallery infringes Morels exclusive right to display the
work.
3. 17 U.S.C. 106(2) gives the copyright owner the exclusive right to createderivative works
A derivative work is defined as one based upon one or more pre-existing works . . . or
any other modification which as a whole represent an original work of authorship. (Id.) There
is no dispute that licensees of AFP and Getty Images used Morels Iconic Images in TV
programming, in newspapers, on posters, inter alia, Soles4Souls, (See Foglesong Decl. &), and
the Clinton Foundation, on websites, as banners and as logos. Such uses by Getty and AFP
subscribers, customers, and clients are direct infringements of Morels right of reproduction, his
right to create derivative works, his right of display and his right of distribution.
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4. AFP and Getty Have Infringed 17 U.S.C. 106(4)The distribution right grants to the copyright holder the exclusive right to make a work
available to the public by sale, rental, lease or lending. This right enables Morel to prevent the
distribution of unauthorized copies of the Iconic Images.
There is no genuine dispute AFP engaged in direct copyright infringement, inter alia,
copying, distribution, transmission and display of at least eight of Morels Iconic Images. AFP
downloaded Morels images, stored and displayed them inImageForum and distributed and
licensed them to customers and subscribers worldwide without Morels authorization.
It is well established that copyright laws generally do not have extraterritorial application.
Update Art, Inc. v. Modiin Publg, Ltd., 843 F.2d 67, 73 (2d Cir. 1988). The Second Circuit has
recognized an exception to this rule where there is a qualifying predicated infringing act in the
United States. For the exception to apply, a plaintiff must show the conduct (1): took place in
the United States and (2) was in violation of the Copyright Act.
While inducement and causation by defendants are not alone enough to qualify as
predicate infringing acts in the United States, AFP engaged in direct infringement and violations
under ' 106, including copying, distributing and publishing the Iconic Images. See Barry Z.
Levine v. Elliot Landy and Landyvision, 1:11-cv-1038 (2011 U.S. Dist. LEXIS 149712
N.D.N.Y.).
AFP does not argue, nor could it, that if it fails on its affirmative defenses, it is liable for
direct copyright infringement.
5. Direct Infringement of Morels ' 106(3) Right by Getty Images and DirectInfringement by Getty Clients Does 1 - et al.
AFP and/or Getty from January 12, 2010 distributed, licensed and sold the Iconic Images
inter alia to National Public Radio (NPR), National Geographic, Vanity Fair, Newsweek,
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MTV and Time Inc. and other journals and magazines, who infringed Mr. Morels copyright by
incorporating said images in news broadcasts, online photo-galleries, magazines and other media
outlets.
Similarly, Getty Images made the Iconic Images available to subscribers, customers and
la carte purchasers from (Getty Clients) January 12, 2010, including the Washington Post,
The New York Times, The Boston Globe, The St. Louis Post-Dispatch, The Denver Post, The
Vancouver Sun, the New York Post, The Huffington Post, Newsweek, Vanity Fair, National
Geographic, CBS.com, the United Nations, the Clinton Foundation, the Jehovahs Witnesses and
other media. Clients and continued to license and make Morels Iconic Images available for
license through at least June 22, 2010. The Getty Clients copied, displayed, created derivative
works and redistributed Morels Iconic Images without his permission.
That Morels right to distribute copies of the copyrighted work to the public by sale or
other transfer of ownership was infringed by distributing the copies of the Iconic Images
electronically is of no significance with respect to the copy. See N.Y. Times Co. v. Tasini, 533
U.S. 483, 498 (2001).
Copyright is a strict liability statute. Because it is a strict liability tort, AFPs and Getty
Imagess, their partners, clients, subscribers, licensees and la carte purchasers lack of
actual knowledge of their respective infringements of Morels rights is irrelevant to the issue of
their direct liability for infringement. See Procter & Gamble Co. v. Colgate Palmolive Co., 199
F.3d 74 (2d Cir. 1999) (innocent copying is still copying under copyright law;Microsoft
Corporation v. Logical Choice Computers, Inc., No. 99 C. 1300, 2001 WL 58950 (N.D. Ill.
Jan. 22, 2001) (individuals who distributed counterfeit copies of Microsoft software are liable for
copyright infringement even if they did not know the software was counterfeit).
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As Getty Images states on its website:
Responsible parties include (i) the company that directly infringed, even ifunintentionally (ii) employees or individuals who participated in the infringement(iii) anyone who published the infringing imaged, whether they had knowledge or
not (iv) anyone who authorized or encouraged infringement. See Copyright 101Getty Imagess website, Bernasconi Dep., Ex. 18.
Getty Images claims that Morels arguments are based on the false premise of conflating
Getty Images conduct with that of AFP. Discovery has indeed confirmed that AFP and Getty
Images played very different roles in distributing the Iconic Images. The only inference possible
from the undisputed material facts is that the volitional acts of Getty Images both before and
after receipt of the caption change and kill notice establish Getty Imagess individual liability
for copyright infringement. See WB Music Corp. v. RTVO Commcn Grp., Inc. , 445 F.3d 558,
540 (2d Cir. 2006). (Getty Images is individually liable for its transmission to the New York
Times, of Iconic Image # 6 at approximately 11:00 PM makes Getty Images liable for the
unauthorized copying, distribution and display of Iconic Image # 6.)
Contrary to Getty Images assertion, Morel 56.1 establishes beyond any genuine issue of
material fact that Getty Images did not play only an automated and passive role in distributing
Morels Iconic Images: its passive role was in failing to remove the Suero images after the take
down notice and inter alia in notifying customers and subscribers after the kill notice use of
Morels Haiti earthquake images. These actions constituted willful infringement as well as
secondary liability for copyright infringement.
Getty Images claims that the holding ofCartoon Network LP v. CSC Holdings, Inc.
(Cablevision), 536 F.3d 121, 131 (2d Cir. 2008) protects it from direct liability for copyright
infringement. In Cablevision, the Second Circuit held that unauthorized reproductions of data,
such as digital movie files, in computer buffers are not infringing copies because they are not
fixed for a period of more than transitory duration.
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Plaintiffs alleged that reproducing their entire works in the buffers created infringing
copies, that Cablevision was directly liable for the complete copies made on its hard drives, and
that Cablevision violated the copyright holders exclusive right to publicly perform their works
when Cablevision retransmitted their works to more than one customer. Plaintiffs alleged
theories only of direct infringement, not secondary liability. On cross-motions for summary
judgment, the district courts ruling granted Cablevisions motion for summary judgments.
On appeal, the Second Circuit considered a line of cases beginning withReligious
Technology Center v. Netcom On-Line Communication Services, 907 F. Supp. 1361 (N.D. Cal.
1995), holding that absent some volitional act by the owner of the system, a party cannot be held
directly liable for copyright infringement based on its passive ownership of an electronic facility
which, responding automatically to users input, creates infringing copies.
The Second Circuit declined to limit the requirement of a volitional act only to internet
cases. The Court compared the RS-DVR with a traditional VCR and found, for the purpose of
the volition analysis, that the two technologies are not sufficiently distinguishable: whether the
consumer is pushing the record button on an RS-DVR or a VCR, that person is directing an
otherwise automatic copying process.
The parties in Cablevision did not contest that a company that merely makes
photocopiers available to the public on the premises, without more is not subject to liabilities for
direct reproductions made by customers using those copiers. The dispute between the parties
was whether Cablevision fit within that example. The Court stated that because volitional
conduct is an important element of direct liability . . ., a significant difference exists between
making a request to a human employee who then volitionally operates the copying system to
make a copy and issuing a command to the system.
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The Second Circuit opined that we are not inclined to say that Cablevision rather than
the user does the copying produced by the RS-DVR. As a result, we find that the district court
erred in concluding that Cablevision rather than its RS-DVR customers makes the copies carried
out by the RS-DVR system. P. 26.
Getty Images qualifies as neither the equivalent of a VCR, TIVO or RS-DVR. Getty
Images is a UK and North American-based imagery company in the business of procuring and
distributing images and related products and services via the internet and retains an active sales
and marketing force to distribute and promote its web content.
The undisputed evidence shows that Getty Images utilized volitional conduct in
infringing Morels exclusive rights, inter alia, reproduction, display, copying.
As Chris Eisenberg, Director of Content Management, testified, the AFP images were
directed through the feed to Gettys equipment to TEAMS. ( 97) Getty Images reformats,
organizes, indexes, displays, reproduces, and licenses any infringing material provided by its
partners (not users) as part of its image-licensing business and human intervention was
possible at each step.
The Images which are marked publish are published to the Getty Images website for
download by Getty Images subscribers, Easy Access clients, premium clients and la carte
customers. ( 97) Getty Images employees set pricing and licensing terms for the images
provided to it by AFP. Getty Images in TEAMS resided in TEAMS unless pulled and then
resided in the archive of TEAMS. ( s 107-108) Its software guided viewers to images
including the Haiti Earthquake Images that may interest them and licenses, distributes and
transmits the images provided by its partners to its customers and subscribers.
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There is no evidence to create a genuine dispute that Getty Images infringing activity
meets the level of volition required under the Second Circuit case ofCartoon Network LP v.
CSC Holdings, Inc., 536 F.3d 121, 130-31 (2d Cir. 2008). Getty Images activities in the
marketing, sale, distribution, syndication and licensing of Morels Iconic Images changed its
status from being a passive provider of a space in which infringing activities happen to occur
to active participants in the process of copyright infringement. Arista Records LLC v.
Usenet.com, Inc., 633 F. Supp 2d 124, 148 (S.D.N.Y. 2009). Getty Imagess volitional conduct
infringed Morels 17 U.S.C. 106(3) right by the unauthorized distribution, license and sale of
the Iconic Images. See Island Software & Computer Services, Inc. v. Microsoft Corp., 413 F.3d
257, (2d Cir. 2005). See, e.g., Salton, Inc. v. Philips Domestic Appliances and Personal Care ,
391 F.3d 871, 878 (7th Cir.).
Getty employee David Wojtozak, a supervisor on the Getty copyright compliance team in
the case ofGetty Images v. Advernet, 797 F. Supp 2d 399, 408 (S.D.N.Y. 2011), testifying at a
Rule 52 hearing, stated that the shopping cart on Getty Images website is the web interface
where our clients go to transact to search for our content, to license our content and to complete
the actual license transaction. After the buyer pays for its shopping cart, the majority of the time
the buyer is led to a download page and [can] download a digital file and the buyer is also
granted rights per the terms of the transaction . . . typically, the shopping cart is created on some
level either manually or via automation.
Angela Foglesong, Marketing Director for the charity Soles4Souls, provides in her
Declaration unrebutted evidence of two examples of Getty Imagess volitional conduct. First,
a customer service representative assisted Fogelson in pricing and determining whether the use
was editorial or commercial. It was commercial. Second, the Preview Order and Final Order
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show the name of the photographer as AFP. In an email, June 17, 2010, Catherine Calhoun,
Senior Sales Director, Getty Images, instructs the sales team that certain images were not
identified in their CRM because the field for photographer was left blank by AFP. Getty Images
to publish to TEAMS manually filled in the field for the photographer as AFP. (Foglesong
Decl.). It is undisputed that Getty Images distributed to subscribers, la carte customers, easy
access customers, subscribers and premium customers for a fee, approximately 820 copies of
Morels eight (8) Iconic Images, to charities, newspapers, media companies, websites, TV,
magazines and governmental bodies, many of whom further sublicensed the Iconic Images.
Morels Iconic Images were licensed for both editorial and commercial use; notwithstanding the
limitation Editorial use, no sales in the caption provided by AFP. (See also s 232-233)
Getty Imagess volitional display of the Iconic Images on its website for licensing
infringed not only Morels 17 U.S.C. ' 106(3) right, it also infringed his right to display the
Iconic Images publicly under 17 U.S.C. ' 106(5). The Court in Perfect 10N Google, 508 F.3d
1146 (9th Cir. 2000), provided the background information: Computer owners can provide
information stored on their computers to other users connected to the Internet through a medium
called a webpage. A web page consists of text interspersed with instructions written in
Hypertext Markup Language (HTML) that is stored on a computer. No images are stored on a
web page; rather the HTML instructions on the web page provide an address for where the
images are stored, whether in the webpage publishers computer or some other computer. In
general, web pages such as Getty Images are publicly available and can be accessed by
computers connected to the Internet through the use of a web browser. A telephone number (800
462-4397) is provided to assist customers.
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6. The Washington Post is Liable for Direct Copyright InfringementThe Washington Post is similarly liable both jointly and severally with Getty Images for
direct copyright infringement, and individually liable for copyright infringement.
Exhibit 2 introduced at the deposition of Catherine Calhoun, Senior Director Media
Sales, Getty Images, shows that on January 12, 2010 the washingtonpost.com downloaded nine
assets of Morels Iconic Images and one asset for the Washington Post Express.
The downloading of these Iconic Images was volitional (the names of the individuals
downloading the Iconic Images have been redacted by Getty Images), and constitutes the making
of an unauthorized copy in violation of Morels 17 U.S.C. ' 106(1) right.
The Washington Posts use of the Iconic Images consisted, inter alia, of posting them in
an online gallery. In March 2010, when Morels screen shots were made, the Iconic Images (3)
appeared near the end of the photo gallery. However, the images of the Haiti Earthquake appear
chronologically with the last images first. It is a reasonable inference from the record that on
January 13th, 2010, the Iconic Images were some of only a handful of images available to the
Washington Post through its various wire services and appeared prominently in its photo gallery.
It is a reasonable inference that all eight (one was a duplicate), images were prominently
displayed in the photo gallery on January 13, 2010 or January 14, 2010, when the Washington
Post photojournalists were not yet in Haiti. The Washington Post also made available Iconic
Image 7 to other organizations in late January. An Iconic Image also appeared on the front page
of the Washington Post free metro handout on January 14, 2010.
As early as January 13, 2010, Corbis had informed AFP of the Washington Posts
infringement of the Haiti Earthquake Images licensed from their partner Getty Images, and that
Corbis had exclusive rights to Morels images.
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In June 2010, as part of the CRM, if not in April, Getty Images contacted the Washington
Post. The Washington Post confirmed to Getty Images that the three Iconic Images had been
removed from its website. That was not true. Despite again being notified in September or
October 2010, the images remained on its website. Not until the Washington Post was informed
by Morels lawyer that it would be added as a party in June, 2011, did the Washington Post
remove the three images from its website.
II. THERE IS NO GENUINE ISSUE OF FACT THAT AFPS ACTIONS ANDGETTY IMAGESS ACTIONS ARE WILLFUL UNDER 17 U.S.C. 504(c)(2)
Once an act of infringement under the Copyright Act has been proven, a plaintiff may, in
lieu of an award of actual damages and profits, request that statutory damages under 17 U.S.C.
504(c) be awarded. If a plaintiff so elects, the district court will grant anywhere between $750
and $30,000 for each copyright infringed. See 17 U.S.C. 504(c)(1). If the defendants
infringement was willful, however, the district court may also, in its discretion, enhance the
statutory damages award to as much as $150,000 per infringed work. 17 U.S.C. 504(c)(2).12
Even viewed in the light most favorable to the non-moving party, the record permits no
other conclusion than that the actions of AFP and Getty Images were willful. It is beyond
peradventure that a reasonable jury could find based on the undisputed facts that AFPs and
Getty Imagess actions were other than willful.
While knowledge as opposed to volition is not an element to establish direct liability for
copyright infringement, knowledge is required to establish willful infringement.
To prove willfulness under the Copyright Act, the plaintiff must show (1) that the
defendant was actually aware of the infringing activity, or (2) that the defendants actions were
12 Morel has not elected statutory damages and can make such election until entry of judgment. (17 U.S.C. ' 504(c)(1))
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the result of reckless disregard for, or willful blindness to, the copyright holders rights. See
In re Aimster Copyright Litigation, 334 F.3d 643, 650 (7th Cir. 2003).
The Second Circuit has adopted a test for willfulness based on the actual or constructive
knowledge of the defendant infringer, which includes reckless disregard for the possibility that
the conduct is infringing. Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 112 (2d Cir. 2001);
GMA Accessories, Inc. v. Olivia Miller, Inc., 139 Fed. Appx. 301 (2d Cir. 2005);Island Software
and Computer Service, Inc. v. Microsoft Corp., 413 F.3d 257, 264 (2d Cir. 2005);Bryantv.
Media Right Productions, Inc., 603 F.3d 135, 143 (2d Cir. 2010, cert. denied, 131 S. Ct. 656
(2010); Software Freedom Conservancy, Inc. v. Best Buy Co., Inc., 2010 WL 2985320, at *3
(S.D.N.Y. July 27, 2010).
As the Second Circuit recently opined in Viacom Intl et al. v. YouTube, Inc. et al., No.
103270, slip op. (2d Cir. Apr. 5, 2012):
The principle that willful blindness is tantamount to knowledge is hardly novel.Tiffany (NJ) Inc. v. Bay Inc., 600 F.3d 93, 100 (2d Cir. 2010) (collecting cases);see In re Aimster Copyright Litig., 334 F.3d 643, 650 (7th Cir. 2003) (Willfulblindness is knowledge, in copyright law . . . as it is in the law generally. Aperson is willfully blind or engages in deliberate avoidance amounting toknowledge where the person was aware of a high probability of the fact i