Written by: Susan Neuberger Weller

A federal jury in New York has found Agence France-Presse and Getty Images Inc. willful in their infringement of Daniel Morel’s copyrights in eight photographs of the 2010 Haiti earthquake, and ordered them to pay damages of $1.2 million. The court had already found AFP  liable for direct copyright infringement on summary judgment, but sent to the jury for disposition the issue of whether Getty’s affirmative defenses vitiated any liability for infringement. The jury was also asked to decide whether any infringement by either Defendant was willful. In addition, the jury awarded Morel $20,000 after finding that the two Defendants also violated the Digital Millennium Copyright Act.

Continue Reading Willful Infringement of Copyright in Haitian Earthquake Photographs Cost AFP and Getty $1.2 Million

Written by: Susan Neuberger Weller

 The Tenebaum copyright infringement file sharing case, about which we first reported in an earlier blog, reached another milestone this week when the First Circuit upheld the jury’s $675, 000 damages award. Tenenbaum had been found liable for illegally downloading 30 songs and a jury awarded statutory damages of $22, 500 for each song infringed. The award was appealed on grounds that it was so large that it violated Tenenbaum’s constitutional right to due process of law.

 The court analyzed the function and purpose for statutory damages under the Copyright Act, which are to provide “reparation for injury” and  “to discourage wrongful conduct.” The court rejected Tenebaum’s argument that the amount of the award violated due process because it was not tied to the actual injury that he caused, stating that such an argument disregarded the intended deterrent effect of statutory damages. Moreover, the award of $22, 500 per song was only 15% of the maximum award possible for willful copyright infringement and even less than the maximum award for non-willful violations. Accordingly, the court held that the jury’s award did not violate the Constitutional right to due process and the judgment was affirmed.

Unless this decision is appealed to the US Supreme Court, this dispute is concluded. It is unlikely the Court would review any such appeal since review of similar cases have previously been declined.

Written by Susan Neuberger Weller

In our August 14th blog, we explained why just because you can copy something from the Internet, doesn’t mean you should copy from the Internet. A case on this very issue that has been around for several years involved the well-known “Hope” poster of President Obama’s face made during the 2008 campaign. The poster became one of the popular images of the Obama campaign and many copies were sold. The creator, Shepard Fairey, eventually fessed up that he did, in fact, create this image based upon a photograph that was taken by Associated Press photographer Mannie Garcia.


Continue Reading Further to the “Copying from the Internet” Issue…..

Written by Susan Neuberger Weller

Following up on my post on the subject, I had the opportunity to speak with Colin O’Keefe of LXBN regarding Song BMG Music Entertainment v. Tenenbaum. In the brief interview, I explain the background of the case and why Tenenbaum ended up being ordered to pay such a hefty price for the songs he copied. Continue Reading Video Interview: Discussing Sony BMG Music Entertainment v. Tenenbaum with LXBN TV

Written by Susan Neuberger Weller

The August 23, 2012 decision in Song BMG Music Entertainment v. Tenenbaum, the most recent in this extended litigation, leaves no doubt that individuals who download music and distribute it without proper authorization through peer-to-peer file sharing sites are subject to liability for copyright infringement and payment of substantial statutory damages for doing so. This case began in 2007, when a graduate student, Joel Tenenbaum, was sued by a number of record labels for downloading and distributing 30 songs using file-sharing services like Napster, Morpheus, Kazaa and LimeWire. After a five-day trial in 2009, the jury found Tenenbaum liable for infringing the copyrights in the 30 songs and awarded statutory damages of $22, 500 for each song. After an appeal and remand, the verdict and damages award was allowed to stand, and Mr. Tenenbaum currently owes $675,000 in statutory damages. So how did the jury come up with the $22, 500 as the amount of damages for downloading and distributing one song? Continue Reading Are You Willing to Pay $22,500 to Download A Song?

Written by Susan Neuberger Weller

In a number of recent cases, individual photographers have successfully sued third parties for unauthorized reproduction and use of photographs, particularly those from stock photography sources. Courts have found third party liability for willful and innocent copyright infringement for the use of individual photographs and have awarded damages to copyright holders based on such conduct. Generally, professional photographers offer their photographs for use by third parties through professional stock photography agencies that negotiate licenses for use of the photos on behalf of the photographer. Continue Reading Just Because You Can Copy It Does Not Mean That You May Copy It

Section 505 of the Copyright Act provides that, in a copyright infringement action, the court may “in its discretion” award costs to a prevailing party.  In addition, the provision provides that the court “may” award a prevailing party its reasonable attorney’s fees as part of the award of costs.  Despite this language, many litigants have taken the position that the prevailing party (whether it is the plaintiff or the defendant) is entitled to an award of fees and costs in most cases.   The First Circuit recently affirmed, however, that the permissive language in Section 505 means what it says:  the award of attorney’s fees and costs to a prevailing party is discretionary, not mandatory, and can be denied even where the asserted claims/defenses are considered weak.

The decision arose from a dispute between Airframe Systems, Inc. and L-3 Communications.  Airframe licensed certain software to L-3.  The license included some use restrictions.  At some point, an Airframe employee allegedly acted without authorization by copying some unspecified version of Airframe’s source code onto L-3’s computer system (in a manner not covered by the license).  Airframe later became aware that unspecified portions of its source code had been copied onto L-3’s computer system and responded by filing a copyright infringement suit against L-3.   L-3 moved for summary judgment, arguing that Airframe failed to produce sufficient evidence to support a prima facie case of copyright infringement. In opposing the motion, Airframe submitted a declaration from its software designer attesting to the “similarities between the accused software and the 2009 version of the Airframe software.  Because the 2009 software version was not registered and was insufficient to establish the content of the source code version covered by Airframe’s prior registrations, L-3 argued that Airframe could not prove the requisite “substantial similarity” between the accused and allegedly infringed software.  The district court agreed with L-3, but denied its request for an award of its attorney’s fees.

Both parties appealed.  The First Circuit appeal the district court’s award of summary judgment to L-3, agreeing that Airframe failed to produce evidence that L-3 copied at least one of the software versions covered by its copyright registrations.  This result highlights the need for copyright owners to register the original and all subsequent versions of software and to maintain historical records of each version.  Had Airframe done so in this case, the outcome could have been very different and probably would not have ended at summary judgment.

As to attorneys’ fees, the Court affirmed the denial of fees.  Here, the First Circuit reviewed the Supreme Court’s Fogerty standard and its own decisions, such as Garcia-Goyco and Latin Am. Music Co.), which interpreted Foley as allowing an award of attorney’s fees if the claims are “objectively quite weak.”  But what does that mean?  Frivolous?  Objectively weak?  Weak?  Here, L-3’s lawyers argued that Airframe’s claims were “doomed to fail for lack of proof from the outset.”  Remember, Airframe had neither registered the software at issue nor had it maintained the version copies necessary to prove its claim.  The Court stressed that Section 505 permits, but does not require, an award attorney’s fees where the opposing party’s claims are objectively weak.  Therefore, a court may, in its discretion, deny a fee request even when the losing party’s claims are weak.  Moreover, the Court stressed that it is very difficult to overturn a district court’s denial of fees on appeal.  The review of a fee award (or lack thereof) to a prevailing party is, to use the First Circuit’s characterization, “extremely deferential.”  Thus, the Court affirmed that district court’s denial of an award of fees to L-3, noting the “early stage at which the present case was resolved [on summary judgment.]”

As many parties to copyright litigation consider the possible award of attorney’s fees when evaluating the risks and rewards of copyright infringement litigation, this decision stands as a stark reminder that a prevailing party is by no means entitled to such an award.  In fact, an award may be unlikely even where the claims are clearly weak.  Can’t help but wonder, though, whether the outcome would be different if the plaintiff/copyright holder prevailed.