On January 21, 2019, U.S. District Judge Alvin K. Hellerstein of New York agreed to reconsider an October 2018 decision in which he had ruled that press agency Zuma Press Inc. had “nobody to blame but itself” for making little effort to get its images back after commingling them with a collection owned by a man named Les Walker.

Zuma sued Getty Images, Inc. in August 2016 claiming Getty copied more than 47,000 of Zuma’s sports images- which were comingled with photos sold to Getty by Les Walker- and placed them for sale on its website removing Zuma’s credit and replacing it with its own. But in October 2018, Judge Hellerstein ruled that Zuma was barred from suing Getty for copyright infringement by equitable estoppel; referring to the doctrine that prevents a litigant from unfairly taking a position that is inconsistent with their previous behavior- in this case Zuma making little effort to get its images back allowing them to be commingled with Les Walker’s other images. According to the October ruling, there was “undisputed evidence” that Zuma had known that its images were “inextricably mixed” with Walker’s collection in this case, and because of this, “Getty did not know, and could not reasonably have been expected to know, that, in displaying Walker’s collection, it was also displaying images originating from photographs Zuma represented.”

Judge Hellerstein stood by his earlier decision to dismiss an additional claim that Getty had violated the Digital Millennium Copyright Act by tampering with copyright management information for Zuma’s images, and also tossed Getty’s bid for $2.8 million in attorneys’ fees for being premature, but will likely reinstate the copyright infringement claim.

This January 21, 2019 decision leaves intact (a) the award of summary judgment to Getty Images on the plaintiffs’ claims for falsification or alteration of copyright management information and (b) the court’s prior determination that there is no evidence that Getty Images intended to induce or facilitate copyright infringement.

Commentary: Of course, one can be an “innocent infringer” of a copyright. The “state of mind” of the infringer, whether intentional or innocent, typically goes to the issue of what damages can be recovered.

Zuma is represented by Richard Liebowitz of Liebowitz Law Firm PLLC.

Getty is represented by Benjamin E. Marks and Jonathan Bloom of Weil Gotshal & Manges LLP.

The case is Zuma Press Inc. v. Getty Images (US) Inc., case number 1:16-cv-06110, in the U.S. District Court for the Southern District of New York.

* Lowe & Associates (“The Firm”) is a boutique entertainment and business litigation firm located in Beverly Hills, California. The Firm has extensive experience handling cases involving entertainment law, having provided top quality legal services to its clients since 1991. The Firm is recognized in multiple publications for its many achievements and high ethical standards, including Martindale-Hubbell and Super Lawyers.

Find us at our website at www.LoweLaw.com

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