Earlier this year, we wrote about a court opinion relating to photos posted on Twitter, in Agence France Presse v. Morel, the opinion of which was issued in January. The case, it appears, has come back to the United States District Court for the Southern District of New York, this time to determine the precise meaning of § 504(c) of the Copyright Act, which deals with awards of statutory damages.

The relevant facts from the case are as follows: Agence France Presse (“AFP”) provided photographer Daniel Morel’s copyrighted images to Getty Images (US), Inc. (“Getty”), who then distributed the works to various infringing third parties. AFP later issued a “kill notice” on Morel’s photos, which was received by Getty, although Getty continued to distribute the photographs. Morel brought suit against AFP and Getty (as well as other news agencies), and on motion for summary judgment, the Court held the defendants liable for copyright infringement. Agence France Presse v. Morel, 2013 WL 146035 at *58 (S.D.N.Y. Jan. 14, 2013).

After the District Court issued its opinion in Agence France, AFP, Getty, and The Washington Post Company moved for reconsideration of a portion of the decision relating to statutory damages under § 504(c) of the Copyright Act.

§ 504(c) states, in relevant part:

[T]he copyright owner may elect at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally…

17 U.S.C. § 504(c)(1) (2012). The issue was whether a plaintiff alleging copyright infringement could elect to pursue separate theories of individual liability against otherwise jointly liable defendants.

Morel sought a total of 16 awards of statutory damages against the two news organizations, i.e., he attempted to obtain one award per work (8) from each defendant individually, even though these parties were otherwise jointly liable for the infringement. Morel argued that the words “elect” and “or” in the statute gave any copyright plaintiff the option of pursuing either relief from multiple infringers jointly and severally, or from each infringer individually.

The court disagreed, holding that the Copyright Act authorizes a single award of statutory damages per work for all infringements in a lawsuit against jointly and severally liable infringers:

If a single individual acting alone infringes a work, the award is individual. If multiple infringers acting together infringe a work, the award is joint and several. Nothing in this proposition or in the statutory language permits a plaintiff to make an election that contravenes fact…Congress intended for the Copyright Act to treat jointly and severally liable infringers the same way that the statute treats individually liable infringers.

Although the effect of this ruling is to prevent what could be double recovery, companies should note that use of infringing photographs can potentially subject companies to liability for an unaffiliated third party’s actions (the infringer’s).

Justin Haddock (justin.haddock@nortonrosefulbright.com / +1 416 216 2317) a trademark lawyer in Norton Rose Fulbright Austin’s intellectual property practice.