Big Fee Shift in Unsuccessful Copyright Lawsuit To Suppress Unflattering Photo–Katz v. Chevaldina

This is the latest update in the long-running case involving a real estate mogul, Raanan Katz, who didn’t like a photo taken of him in public. Katz bought the copyright to the photo and then sued a blogger for republishing the photo in blog posts that criticized him. This attempted copyright end-run around free speech highlights a potentially exploitable gap in our legal system, and I’m planning to address it in an upcoming law review article. The problem is due mostly to copyright legal favoritism, which gives numerous procedural and substantive benefits to copyright holders compared to holders of other legal rights (see, e.g., the 512(c) notice-and-takedown scheme in contrast to Section 230’s general immunity). This probably unwarranted bias in favor of copyright owners draws censorious plaintiffs to copyright claims like an irresistible magnet.

Last year, the court rejected Katz’s copyright claim:

a reasonable trier of fact could reach only one conclusion: that Defendant’s use of the photograph was fair, and did not constitute copyright infringement

(Note: Katz has appealed that ruling to the 11th Circuit).

After that conclusion, unsurprisingly the court granted the 17 USC 505 fee shift to the defendant and awarded the defendant $152,433.68 in attorneys’ fees plus another $2,403.50 in costs. The court’s words are stinging:

During the more than two years that this litigation consumed, Plaintiff should have at all times known his claim would eventually fail when the truth of his motivations was eventually known….

it is crystal clear that Plaintiff’s motivations pursuing this lawsuit were improper. Instead of using the law for its intended purposes of fostering ideas and expression, Plaintiff obtained the photograph’s copyright solely for the purpose of suppressing Defendant’s free speech….While Plaintiff might view it necessary to remove his unflattering picture to “stop this atrocity”, he may not resort to abusive methods to do so.

Plaintiff purchased the photograph taken of himself only after Defendant’s use, then registered the copyright in an effort to prohibit Defendant from using the photograph in her critical blog of Plaintiff. Plaintiff filed this action only to prevent Defendant from using the photograph, and had no intention of marketing the photograph. Essentially, as Judge McAliley found, Plaintiff had no purpose for purchasing or copyrighting the photograph other than this litigation.

In this manner, Plaintiff attempted to use the Copyright Act for purposes wholly unrelated to the law’s purpose of fostering the marketplace of ideas….

Because Plaintiff failed to support his pleadings, continues to vigorously pursue a claim without any merits, in the face of meritorious defenses, this Court recommends that awarding attorney’s fees to Defendant promotes considerations of compensation and deterrence. To do otherwise would encourage continued abuse of the Copyright Act as a tool for stymieing free expression.

I don’t fully agree about the relevance of Katz’s disinterest in marketing the photo, but I do fully endorse the court’s recognition of the tension between copyright and free speech. It’s great to see the court rejecting copyright formalism.

With about $155k moving out of his bank account, this case has become an expensive lesson in copyright law for Katz (one he can surely afford). However, it’s remarkable this case got this far at all. Most defendants faced with a cost-prohibitive legal defense (without even considering the risk of big copyright infringement damages) would have folded instantly at the first hint of trouble. So although the big fee shift in this case is good news for this defendant, the magnitude of the defense costs highlights how a well-funded thin-skinned plaintiff can use copyright to drive unflattering content off the Internet.

Because of that, this case reminds us more generally of the importance of shifting fees to defendants when abusive lawsuits threaten free speech–one of the reasons I support federal anti-SLAPP legislation.

Case citation: Katz v. Chevaldina, 2015 WL 5255429 (S.D. Fla. Aug. 17, 2015). Magistrate R&R on attorneys’ fees (May 6, 2015). Judge’s approval of the R&R.

Some Related Posts:

* Griping Blogger Can Show Photo Of Griping Target–Katz v. Chevaldina
* Blogger Can’t Defeat Copyright Infringement Claim on Motion to Dismiss–Katz v. Chevaldina
* Another Blogger Wins a Fair Use Defense For a Photo–Leveyfilm v. Fox Sports
* The Latest Attempt to Use Copyright Law to Remove Negative Consumer Reviews–Small Justice v. Xcentric
* Griping Blogger Protected by Fair Use But Not Section 230–Ascend Health v. Wells
* The Dangerous Meme That Won’t Go Away: Using Copyright Assignments to Suppress Unwanted Content–Scott v. WorldStarHipHop