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Weil Wins Complete Victory for Getty Images in Significant Copyright Infringement Action

On October 4, 2018, Weil secured a complete victory for Getty Images in a massive copyright infringement action involving more than 47,000 photographs when the U.S. District Court for the Southern District of New York granted our client’s motion for summary judgment and denied plaintiffs’ cross-motion for partial summary judgment.

Zuma Press filed suit in 2016 claiming that Getty Images had copied, displayed, marketed and intentionally altered the crediting for tens of thousands of photographs exclusively licensed to Zuma Press. Zuma asserted claims for copyright infringement under Section 501 of the Copyright Act and for falsification, alteration and/or removal under Section 1202 of the Act. After Getty Images moved to dismiss the complaint, Zuma filed an amended complaint, together with two additional photo licensing agencies and nine individual photographers. The amended complaint included the same copyright claims as the original complaint and also included new claims for contributory infringement, false advertising and unfair competition. Getty Images moved again to dismiss and, in June 2017, the court granted that motion in part, dismissing the new claims but allowing the infringement and Section 1202 claims to proceed to discovery. In accordance with the court’s order, plaintiffs filed a second amended complaint reasserting their claim for relief under Section 1202. They also filed a duplicative second action that included both their Section 1202 claims and their infringement claims. The court then consolidated the cases.

After successfully defeating an attempt by plaintiffs to amend the complaint yet again to add 27 additional photographers as plaintiffs in the action in April 2018, Weil filed for summary judgment following the close of fact discovery. Plaintiffs cross-moved for partial summary judgment on their infringement claims. Weil established that the lead plaintiff had intentionally intermingled the photographs at issue with those of a third photographic agency, NewSport, in 2011 and 2012, and had failed in its efforts over the intervening years to disentangle its photographs from the NewSport collection. Weil also showed that when Getty Images subsequently acquired the rights to that other collection, it did so without any knowledge that it still contained plaintiffs’ photos. Weil argued that Zuma’s intentional intermingling of its photos with the NewSport collection not only resulted in a chain of license authority to Getty Images, but also that plaintiffs should be equitably estopped from arguing otherwise. Weil further argued that plaintiffs could not show that Getty Images had acted with any intent to infringe or facilitate infringement by others, as required for the Section 1202 claim.

Just over a week after oral argument, U.S. District Court Judge Alvin K. Hellerstein granted Getty Images’ motion in full and denied plaintiffs’ cross-motion. Judge Hellerstein observed that Zuma “has nobody to blame but itself for how Getty came to possess these images” and held that plaintiffs were equitably estopped from pursuing their claims. The court also found that the undisputed record showed that Getty Images lacked any intent to infringe, which defeated the Section 1202 claim. The court thus dismissed the case in its entirety.

The Weil team included Co-Head of Weil’s IP/Media practice Ben Marks, counsel Jonathan Bloom, and associates Alea Mitchell and Eliza Cotter.