Agence France Presse v. Morel, 10 Civ. 2730 (S.D.N.Y.; May 27, 2012) (Morel's SJ Motion)

7/31/2019 Agence France Presse v. Morel, 10 Civ. 2730 (S.D.N.Y.; May 27, 2012) (Morel's SJ Motion)

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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)

Case 1:10-cv-02730-AJN-MHD Document 126 Filed 04/27/12 Page 1 of 60


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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 [email protected] 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 [email protected] 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 [email protected]

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 [email protected]. Amalvy received no response from

either Suero or Morel. At 7:26 PM, Amalvy forwarded a 7:22 PM email to [email protected]

http://radioteleginen.ning.com/profiles/blogs/pictures-of-haiti. At 7:36 PM, Amalvy sent an

email to [email protected] 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 [email protected] with the image attachment

haiti 2. At 9:03 PM, Amalvy sent an email to [email protected] with an image attachment

haiti 3. At 9:03 PM, Amalvy sent an email to [email protected] 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

[email protected] 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 [email protected] with an image

attachment haiti 7. At 9:42 PM, Amalvy emailed Morel at [email protected], 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 [email protected] Thank you.

At 9:44 PM, Amalvy sent an email to [email protected] 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

[email protected]. 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

Agence France Presse v. Morel, 10 Civ. 2730 (S.D.N.Y.; May 27, 2012) (Morel's SJ Motion)

Documents

Transcript of Agence France Presse v. Morel, 10 Civ. 2730 (S.D.N.Y.; May 27, 2012) (Morel's SJ Motion)