United States District Court, S.D. New York
For Agence France Presse, Plaintiff: Joshua J Kaufman, LEAD ATTORNEY, Venable LLP (NYC), New York, NY; Elissa Brockbank Reese, PRO HAC VICE, Meaghan Hemmings Kent, PRO HAC VICE, Venable LLP (DC), Washington, DC.
For Daniel Morel, Defendant, Counter Claimant, Counter Defendant: Jaime G. Touchstone, PRO HAC VICE, Futterman Dupree Dodd Croley Maier LLP, San Francisco, CA; Joseph Thompson Baio, Willkie Farr & Gallagher LLP (NY), New York, NY.
For Getty Images, Inc., Defendant, Counter Defendant, Counter Claimant: James Eric Rosenfeld, LEAD ATTORNEY, Davis Wright Tremaine LLP (NYC), New York, NY.
For CBS, Inc, Counter Defendant: Amin S. Kassam, LEAD ATTORNEY, DeVore & DeMarco, L.L.P., New York, NY; James Eric Rosenfeld, LEAD ATTORNEY, Davis Wright Tremaine LLP (NYC), New York, NY.
For The Washington Post Company, Counter Defendant, Counter Claimant: James Eric Rosenfeld, Davis Wright Tremaine LLP (NYC), New York, NY.
For Agence France Presse, Counter Defendant: Joshua J Kaufman, LEAD ATTORNEY, Venable LLP (NYC), New York, NY.
For Agence France Presse, Counter Defendant: Joshua J Kaufman, LEAD ATTORNEY, Venable LLP (NYC), New York, NY; Meaghan Hemmings Kent, PRO HAC VICE, Venable LLP (DC), Washington, DC.
ALISON J. NATHAN, United States District Judge.
MEMORANDUM AND ORDER
On January 14, 2013, this Court issued an opinion in the above-captioned case granting partial summary judgment to Defendant Daniel Morel (" Morel" ) and denying summary judgment to Plaintiff/Counterclaim Defendant Agence France Presse (" AFP" ) and Third-Party Counterclaim Defendants Getty Images (U.S.), Inc. (" Getty" ), and The Washington Post Company (" the Post" ) (collectively, " Counterclaim Defendants" ). Agence France Presse v. Morel, 934 F.Supp.2d 547, 2013 WL 146035 (S.D.N.Y. Jan. 14, 2013). On February 8, 2013, Counterclaim Defendants moved for reconsideration of Section E.1 of that decision, (Dkt. No. 200), which discusses statutory damages under § 504(c) of the Copyright Act. See 17 U.S.C. § 504(c). Specifically, Counterclaim Defendants requested reconsideration of the portion of Section E.1 in which the Court concluded that " AFP and Getty are, at most, each liable for a single statutory damages award per work infringed." Morel, 2013 WL 146035, at *29.
At a conference on February 22, 2013, the Court determined that the motion for reconsideration standard had been met and ordered supplemental briefing with regard to the question whether, as a matter of law or fact, Morel could be entitled to recover one statutory award per work infringed from AFP and one from Getty, for a total of two awards per work infringed. Finally, on May 7, 2013, the Court heard oral argument on these supplementary submissions. The Court now concludes that, pursuant to § 504(c) of the Copyright Act and as this action has been structured, pled and litigated, Morel is, at most, entitled to receive one award of statutory
damages per work infringed in this action.
The Court assumes familiarity with the facts of this case and with the opinion now under reconsideration. Having already determined that reconsideration was appropriate, the Court will limit the current discussion to the merits of the precise issue under review.
I. The Court's Previous Holding and the Question Presented for Reconsideration
In relevant part, the Court's summary judgment opinion addressed the question whether an infringer (or group of joint infringers) could be held liable for multiple statutory damages awards based on the infringement of a single copyrighted work if that party was jointly liable with a number of other infringers who were not, themselves, jointly liable with one another. Morel, 2013 WL 146035, at *26-29. The Court held that the liability of an individual or group of individuals for the infringement of any single work could not be multiplied by the number of separate end-point infringers with whom that individual or group was jointly liable. [WL] at *29 (" The Court concludes that any award of statutory damages against AFP or Getty may not be multiplied based on the number of infringers with whom AFP or Getty is jointly or severally liable." ).
At issue on reconsideration is the concluding line of the section of the Court's opinion discussing statutory damages under the Copyright Act, which stated that " AFP and Getty are, at most, each liable for a single statutory damages award per work infringed." Id. Counterclaim Defendants argue that this line could be interpreted as allowing Morel to recover more than one statutory award per work infringed in this action, which they argue is incorrect both as a matter of law and under the facts of this case. Practically speaking, Counterclaim Defendants request that the Court clarify whether they are potentially liable for eight statutory damages awards or for sixteen. More specifically, however, the issue on reconsideration is whether, as a matter of law or fact, Morel could elect to pursue one statutory award per work from AFP, alone, for its individual pre-kill notice conduct and a separate statutory award for that same work from Getty for its individual post-kill notice conduct. 
The Court concludes, as a matter of law, that, in cases such as this, a plaintiff seeking statutory damages for copyright infringement may not multiply the number of per-work awards available in an action by pursuing separate theories of individual liability against otherwise jointly liable defendants. As with individually liable infringers, the statute authorizes a single statutory award per work for all infringements in an action against jointly and severally liable infringers, regardless ...