“Copyright Troll” Lawyer Gets Sanctioned (Again)–Sands v. Bauer Media
Attorney Richard Liebowitz has filed more than 1,100 lawsuits since the beginning of 2016, a campaign this judge calls a “downpour.” This initiative has not gone smoothly. The court recaps:
Mr. Liebowitz has been sanctioned, reprimanded, and advised to “clean up [his] act” by other judges of this Court. As Judge Furman recently observed, “there is a growing body of law in this District devoted to the question of whether and when to impose sanctions on Mr. Liebowitz.”
This particular lawsuit involves two photos of Emily Ratajkowski (NSFW link), well-known from the Blurred Lines video (also beware of a NSFW version of that video!), and this DKNY video. The defendant Bauer Media (operator of FHM) reported on the video’s release and included the two photos at issue, which it got from Ratajkowski’s Instagram feed. [Note: I didn’t verify if the photos were cut-and-paste or embedded from Instagram–it might make a difference.]
One of the key questions is the plaintiff’s licensing terms, if any, for the photos. The photographer apparently licensed both photos to Getty and one of the photos to Matrix, but Liebowitz didn’t disclose the licenses during discovery. The court says Liebowitz’s excuse for the non-disclosure is “lame,” the withholding dragged out the litigation to increase the defendant’s financial burden, and the withheld information was material to the fair use defense and prejudicial to the defense.
The court adds:
this not the first time that Mr. Liebowitz has gotten into difficulty in this Court for what at best often is a slap dash approach to pursuing the enormous volume of cases of this nature that he has filed. A “mere oversight” that happens once or twice is one thing, A pattern of discovery and related abuse is quite another, and rings of deliberate indifference to an attorney’s obligation to behave in a professional, responsible, and competent manner in each and every case he handles. And if the attorney has filed a deluge of cases, such that his workload is too great to discharge that obligation, the volume of cases must be reduced to a number that may be managed responsibly or the number of responsible and competent attorneys tasked with handling it must be increased.
As a result, Liebowitz is required to cover the attorneys’ fees for the sanctions motion and may be required to post a $50,000 bond to continue this case (to cover the potential 505 fee shift to the defendant). If you ask me, the court let him off easy because the delayed discovery added months of defense costs. Still, I’m always fascinated when a high-volume copyright litigator has the profit-o-meter running in reverse. It makes me wonder how the entire scheme can be profitable. I’m also wonder about the decision of new clients to hire Liebowitz given his apparent reputation among judges.
While the defendant in this case might have opted-out of the proposed new copyright small claims court in the CASE Act, this lawsuit is a nice reminder of how photographers and their lawyers are going to FEAST on any new small claims option. Among other things, the CASE Act proposes a brand-new statutory damages of up to $7,500 for works that were NOT registered on a timely basis. The availability of those statutory damages, plus the high risk of problems with service of process, will make the proposed small claims option into a troll Mecca. Please please please read the CASE Act and speak out if you’re as troubled as I am. For prior coverage of the CASE Act’s predecessor, see this post.
Case citation: Sands v. Bauer Media Group LLC, 2019 WL 4464672 (SDNY Sept. 18, 2019)
Posts on Related Topics:
* Photographer Sues for Failure to Provide Creative Commons-Required Attribution–Philpot v. WOS
* Court Blasts “Copyright Troll” for Treating Courts “as an ATM”–Strike 3 v. Doe
* Reminder: Cutting-and-Pasting Photos from the Internet Is Hazardous to Your Legal Health–Grecco v. Valuewalk
* IP Address Subscriber Isn’t Liable for Copyright Infringement by Users Sharing That IP Address–Cobbler v. Gonzales
* Trolling the Internet for Photos Creates Copyright Headaches for Ad Agency (and the Advertiser)–Laspata v. Rimowa
* Ill-Advised Copyright Lawsuit Over Facebook Live Video Becomes Costly For Plaintiff–Konangataa v. ABC
* A Photographer Sued a (Former) Student Over a School Project. Guess How That Turned Out–Reiner v. Nishimori
* Copyright Owner Denied Attorneys’ Fees In Suit Against Popcorn Time User–Cobbler v. Doe
* Another Censorious Copyright Case Results In a Big Fee Shift–Inglewood v. Teixeira
* Big Fee Shift in Unsuccessful Copyright Lawsuit To Suppress Unflattering Photo–Katz v. Chevaldina
* Morel Denied Attorneys’ Fees In Long-Running Suit Over Photos Lifted From Twitpic
* The Righthaven Debacle, 5 Years Later
* Defendant Gets Attorneys’ Fees For ‘Frivolous’ DMCA Copyright Management Information Claim
* Copyright Trolling Is Really Hard to Do Profitably–Righthaven v. Hoehn
* Righthaven Hit With Another Fee/Cost Award, This Time Nearly $120k–Righthaven v. DiBiase
* Colorado Judge Drills Righthaven and Awards Attorneys’ Fees–Righthaven v. Wolf
* Righthaven Defendant Awarded $3,800 in Attorneys’ Fees–Righthaven v. Leon