We have written previously 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 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).
The case was one of the first to consider the extent to which images made available to the public via social media platforms may be used by other parties for commercial purposes.
As we later reported, after the issuance of the initial opinion, on a motion for reconsideration, the United States District Court for the Southern District of New York determined that the Copyright Act authorizes only a single award of statutory damages per work for all infringements in a lawsuit against jointly and severally liable infringers.
On November 22, 2013, a federal jury decided that the infringers were liable for, and thus ordered to pay Morel, statutory damages in the amount of $1.2 million for their unauthorized use of Morel’s photos, despite AFP’s request that the jury set the award for $120,000. This amount awarded was the maximum statutory penalty available under the Copyright Act: $150,000 per work that the jury found was willfully infringed.
This decision is but one of many examples of the potential harshness of federal penalties for copyright infringement. Companies should take this case as a reminder that it is better to be safe than sorry – regardless of the time and expense your business needs to ensure that use of copyrighted works is authorized, it is surely better to take precaution than to subject the company to potential liability under the Copyright Act.
This article was prepared by Justin Haddock (justin.haddock@nortonrosefulbright.com / +1 512 536 3024) is a lawyer in Norton Rose Fulbright’s Austin intellectual property practice.
