March 03, 2021
On March 3, 2021, Weil secured a complete appellate victory for Getty Images in a significant copyright infringement action arising out of Getty’s posting of nearly 50,000 of the plaintiffs’ images on its website, allegedly without authorization. In a 10-page opinion, the U.S. Court of Appeals for the Second Circuit affirmed a district court’s summary judgment decision in Getty Images’ favor that dismissed the five-year-old case. The opinion vindicates Getty Images’ respect for copyrights as a core foundation of its business, and provides important guidance on the contours of liability for alteration of copyright management information under Section 1202 of the Copyright Act.
In this case, a photo licensing agency called Zuma Press alleged that Getty Images had unlawfully copied, displayed and intentionally altered the photographer credit information for more than 47,000 photographs allegedly belonging to Zuma. 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 – the latter of which implicated potential statutory damages of more than $3 billion. After Getty Images moved to dismiss the complaint, Zuma Press, along with 11 new plaintiffs, filed an amended complaint, asserting an additional claim for contributory infringement, as well as claims under the Lanham Act and New York law.
Weil won dismissal of the contributory infringement, Lanham Act and state law claims at the outset of the case, and an initial summary judgment victory in 2018 that defeated both the Section 501 and Section 1202 claims. However, the trial court would later grant the plaintiffs’ motion to reconsider the dismissal of its Section 501 copyright infringement claim.
Weil then submitted a renewed summary judgment motion based on the affirmative defenses that the court had not previously addressed – chiefly, that Getty Images’ use of the plaintiffs’ photographs was authorized under a chain of license agreements that began with the plaintiffs themselves. Through third-party discovery, Weil established that license rights to the photographs had been transferred from Zuma Press to NewSport; from NewSport to another agency, Corbis; through Corbis, in a sale transaction, to a Chinese entity, VCG; and, finally, from VCG to Getty Images. The court found that this chain of license authority was complex, but unbroken, and in July 2019 granted judgment on the infringement claims since “holding a valid license ‘immunizes the licensee from a charge of copyright infringement, provided that the licensee uses the copyright as agreed with the licensor.’”
On appeal, the plaintiffs attempted to challenge the summary judgment dismissal of both the Section 501 claims and Section 1202 claims. Following briefing and argument, the Second Circuit sided with Getty Images. On the Section 501 claims, the court agreed with the trial court decision ruling that “the undisputed facts in the record and the plain language of each of the agreements at issue establish an unbroken chain of authorization from Zuma to Getty” and that “a reasonable juror could find only that Getty established the existence of a valid license” to the photographs in question. Likewise, on the Section 1202 claims that Getty Images had intentionally altered the photographer credit information, the court found “no reasonable juror could conclude that Getty knowingly removed or altered Plaintiffs’ CMI without authority.”
The Weil team was led by Benjamin E. Marks, Head of Weil’s Intellectual Property & Media practice, and included associate Eliza Cotter. The appellate team also included Appellate Litigation Co-Head Gregory Silbert and associate Aaron J. Curtis.