Request for Fees and Costs by Haiti Earthquake Photojournalist Denied by SDNY

Despite receiving a 1.2 million dollar verdict in a copyright infringement suit involving photos taken after the 2010 Haiti earthquake, additional requests by the prevailing-litigant photographer have not fared as well. The District Court for the Southern District of New York has denied photographer Daniel Morel’s request that Agence France Presse (“AFP”) and Getty Images, the counterclaim defendants, pay his costs and attorneys’ fees. The court also fixed the sum of the lien charged by Morel’s former counsel. See Agence France Presse v. Morel, No. 10-cv-2730 (AJN) (S.D.N.Y. Mar. 23, 2015).

According to the court, Morel “fought a fair fight and won” upwards of a million dollars. Although Section 505 of the Copyright Act gives the court discretion to allow for the recovery of costs, and award reasonable attorneys’ fees to the prevailing party, the court held that an award under Section 505 would not further the purposes of the Copyright Act in this case. As the Supreme Court previously held in Fogerty v. Fantasy, Inc., a number of factors help in making an attorneys’ fees determination, including whether a complaint was frivolous, a party’s motivation in asserting a claim, objective unreasonableness of a claim, and the expense of litigation. 510 U.S. 517, 534.

Although Morel alleged the counterclaim defendants suggested “objectively unreasonable defenses,” like claiming their usage was protected by Twitter’s terms of service, and that Getty qualifies as an internet service provider, due to the complexity of legal issues social media presents, the court noted AFP and Getty’s positions were objectively reasonable. “The advent of social media, and the internet generally poses a myriad of issues for both copyright holders and those seeking to license or exploit their work. The federal courts have recognized that ‘the whole area of social media presents thorny and novel issues with which courts are only now coming to grips.”  As such, the court found AFP and Getty’s litigation positions were not frivolous and issues involving the counterclaim defendants’ motivations were unsupported.

Morel successfully litigated his copyright claims at trial.  However, although the Copyright Acts allows for fee shifting, a prevailing party may nonetheless fail recover fees and costs incurred during litigation.