Court Orders Copyright Troll To Post $10,000 Bond After He Lied About His Client's Licensing Agreement

from the dope-on-a-rope dept

Richard Liebowitz of Liebowitz Law Firm has had a bad couple of weeks in court. Unfortunately for him, as one of the most prolific copyright trolls, that's kind of where he makes his home. According to two recent orders handed down by two different judges, Liebowitz has filed more than 500 copyright cases in the Southern District of New York alone over the last two years, most often representing photographers.

Booth Sweet LLP -- which has gone head-to-head with other copyright trolls -- pointed out the most recent loss Liebowitz has suffered. His lawsuit is still ongoing, but the court has ordered him to post a $10,000 bond to cover the legal fees he'll be responsible for if he loses. And if a judge is ordering a bond, it's likely because the judge expects the lawsuit to end badly for the person ordered to front the cash.

The order [PDF] is an entertaining read for people who detest copyright trolls. (Hey! Welcome to Techdirt!) Liebowitz is suing Hearst Communications over the publication of a photo he says belongs to his client, Ray Reynolds. Reynolds claims he gave the photo to the Trump campaign but expressly forbade its release to anyone else. The photo was given to Elle magazine to accompany an article about Melania Trump. Reynolds sued, and apparently chose poorly when it came to representation.

It's nothing but bad news for the prolific troll. The order begins with a recounting of Liebowitz's lies/omissions/failures.

The complaint in this action alleged that the defendant published plaintiff’s photograph without a license or plaintiff’s permission. It did not reveal that the plaintiff had in fact provided the photograph to the Campaign.

At the initial conference held on December 8, when asked how the defendant could have gotten the photograph, Mr. Liebowitz did not explain that the plaintiff had actually given the photograph to the Campaign. Instead, he speculated that Hearst may have taken the photograph from an article that the plaintiff had licensed to publish the photograph.

That's already a bad start, but a footnote makes it even worse.

Mr. Liebowitz failed to appear at the pretrial conference scheduled for December 1, despite being required as principal trial counsel to appear at the conference. Instead, without seeking prior permission to do so, Mr. Liebowitz sent an associate.

The court then recounts the facts. The photos are registered with the copyright office. The plaintiff asserts he gave them to the Trump Campaign for it to use for campaign-related stuff. Hearst maintains the Trump Campaign gave Elle the photo to use with the Melania Trump article. As the court points out, this would appear to be in line with the photographer's demands: the photo was used in an article put together with the assistance of the Trump Campaign. No violation of any contract, oral or written. And there appears to be no contract of any sort. Just the photographer's claim Elle engaged in copyright infringement by using it on its website. Having nothing in writing will make this case almost impossible to win. The court quotes from copyright law:

All grants of exclusive rights in a copyright must be made in writing.

The court doesn't say the plaintiff has no chance of winning this suit. But it does say the chances of him winning the suit are barely above zero.

Although he was not forthcoming in either the complaint or when first addressing the Court at the initial pretrial conference, Mr. Liebowitz understood before filing this lawsuit that the plaintiff gave the photograph to the Campaign for its use and that the photograph had been used in a story with which the Campaign was obviously cooperating. Among other things, Mrs. Trump is quoted in the article. There is no indication in the record that Mr. Liebowitz has ever learned of any explicit or even implied agreement between the plaintiff and the Campaign that restricted the Campaign’s use of the photograph in any way. His client only claims that he did not intend to allow the Campaign to share the photograph, but has provided no evidence of an agreement to that effect between him and the Campaign. If Mr. Liebowitz had spoken with defense counsel before filing this action, he would have had occasion to consider all of the facts recited above and to consider whether it was appropriate to sue Hearst at all, or whether he should sue not only Hearst but also the Campaign.

The court notes the 500 cases Liebowitz has filed in this court over the last two years. It also notes his recent sanctioning by this court (more on that in a minute). It then points out several of his cases have been dismissed for being frivolous. On top of that, the court says it's not the only court that has required Liebowitz to pay up front for impending lawsuit losses.

Multiple courts, on their own initiative, have ordered Mr. Liebowitz to show cause why he should not be required to post security for costs as a condition of proceeding further with an action.

Hearst wanted a $105,000 bond. The judge trims it down to 10% of this demand, noting Liebowitz's self-declared insolvency.

The plaintiff asserts that he lives paycheck to paycheck and cannot pay a bond.

(Maybe don't take all your cases on contingency.)

Of course, the court has no reason to believe this assertion, considering Liebowitz's past performance.

Given the plaintiff’s impecuniosity, the immediate imposition of bond in an amount limited to $10,000 is appropriate. The defendant will be given an opportunity to take discovery of the plaintiff’s financial condition and the parties will be heard as to whether any additional bond requirement should be imposed in this case.

Then it smacks him one more time before signing off.

Mr. Liebowitz also argues that plaintiff has not willfully disobeyed court orders, obstructed discovery, or increased the cost of litigation. This is demonstrably false. Mr. Liebowitz failed to comply with orders in this litigation, as he has in other lawsuits. Further, the failure to include the Campaign as part of this suit, or to even mention the plaintiff’s relationship with the Campaign in the complaint, will inevitably increase the cost of litigation.

As noted in this decision, Liebowitz has been sanctioned by SDNY courts previously. Via The Trademark Blog, here's Liebowitz being threatened with yet another sanctioning by an SDNY judge. This order [PDF] was handed down less than a month ago and it stems from the plaintiff voluntarily dropping the lawsuit as soon as the defendant filed a motion to dismiss.

It starts out -- like the one above -- with a footnote detailing Liebowitz's failure to comply with rules he's surely familiar with, given the large number of lawsuits he's filed in this district.

The notice of the initial pretrial conference contains explicit language that the plaintiff is to “notify all attorneys in this action by serving upon each of them a copy of” the notice and the Court’s individual practices. The plaintiff is “to file proof of such notice with the Court.” The plaintiff failed to comply with this notice; the electronic case filing system (“ECF”) contains no entry indicating that the plaintiff duly served defendant’s counsel with the notice. This is not the first such failure on the part of plaintiff’s counsel before this Court and other courts in this district.

Then the court notes the lawsuit -- filed in New York against a small Idaho publication -- contains nothing indicating this court should have jurisdiction to hear the case. The defendant's motion to dismiss on these grounds prompted a quick withdrawal of the lawsuit. The court finds this suspicious, but declines to award legal fees to the defendant.

Here, the plaintiff voluntarily dismissed his claims after the defendant served a Rule 68 offer and filed a motion to dismiss for lack of personal jurisdiction. In opposition to this motion for fees, the plaintiff does not suggest that he had any non-frivolous reason to believe that there was personal jurisdiction over the defendant in this district. Based on the record before the Court, it appears that the filing in this district was “frivolous, unreasonable, or groundless.” CRST, 136 S.Ct. at 1652 (citation omitted). Plaintiff’s counsel, Richard Liebowitz, is a known copyright “troll,” filing over 500 cases in this district alone in the past twenty-four months. Thus, whether or not an attorney’s fee award could be properly awarded against the plaintiff under Section 505, such an award against plaintiff’s counsel may be appropriate in an exercise of this Court’s inherent power.

No fee shift, but there's a warning suggesting Liebowitz could be on the hook for fees in the future, especially if he decides to keep dumping cases into this district.

In an exercise of this Court’s discretion it declines to award fees on this occasion. If Mr. Liebowitz files any other action in this district against a defendant over whom there is no nonfrivolous basis to find that there is personal jurisdiction, the outcome may be different.

Nothing seems to have slowed Liebowitz's troll but perhaps back-to-back bench slaps might, especially if the lawyer is so broke he can't rub two settlements together. Someone working on contingency with a horrendous court track record probably doesn't have tons of cash to front to keep his speculative invoicing racket afloat.


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  • identicon
    Anonymous Coward, 9 Mar 2018 @ 12:23pm

    Good ole blue boy will be beside himself today.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Mar 2018 @ 1:10pm

    Works on contingency? No, money down!

    Can we change this to be "from the i-cant-believe-its-a-law-firm dept"?

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 9 Mar 2018 @ 1:15pm

    All copyright theft and lying, violates natural right to copy!

    All copyright theft and lying, violates natural right to copy!

    Read this for the pirate's manifesto:
    https://www.techdirt.com/blog/casestudies/articles/20130116/09224321702/just-as-many-music ians-say-file-sharing-helps-them-as-those-who-say-it-hurts.shtml#c2063

    "But not the natural rights to copy and distribute. Those existed prior to copyright law and exist with or without copyright. Copyright restricts those rights by law, that's all. Once a work is released beyond the original author, the natural rights of copying and distribution exist. Period. The only way to truly restrict those rights on a particular work is to lock that work in your bottom desk drawer and never let anyone else see it."

    Why don't we have that discussion here any more?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Mar 2018 @ 1:37pm

      Re: All copyright theft and lying, violates natural right to copy!

      Why don't we have that discussion here any more?

      cause out_of_the_blue always shows up with the common law rant! man, i hate whatever personal pronoun that is!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Mar 2018 @ 1:54pm

      Common law

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 9 Mar 2018 @ 3:52pm

      Re: All copyright theft and lying, violates natural right to copy!

      Why don't we have that discussion here any more?

      Because it really kind of settles itself. You can no more stop the copying and distribution of a published work than you can stop the inevitable heat death of the universe. You can only ever prevent other people from copying and distributing your work with absolute certainty if you refuse to publish that work. Make it available to anyone, even once, and you run the risk of having it copied/distributed.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 9 Mar 2018 @ 1:28pm

    Damn artists thinking they should be paid for their work. Screw them.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Mar 2018 @ 1:52pm

      Re:

      Well... you tried...

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Mar 2018 @ 2:59pm

      Re:

      Artist?

      The only artist in this story is a con artist!

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 9 Mar 2018 @ 3:54pm

      Re:

      The artist likely got paid when he gave the photo to the Trump campaign. That Elle later used the photo with the permission of the campaign—which seems to be on the up-and-up if the photographer gave full rights over the photo to the campaign—does not entitle him to further compensation.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Mar 2018 @ 5:02pm

      Re:

      Maybe his client shouldn't have lied about the licensing agreement, then.

      You'd think if he had such a slamdunk of a case about getting paid it'd be easy to win. Turns out that wasn't the case. What is it about IP law that makes it only capable of hiring scumbags?

      reply to this | link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 9 Mar 2018 @ 10:20pm

        Re: Re:

        They haven't been able to get any new ideas because IP is keeping the public domain barren, so they just keep remaking and rebooting the same tired scams.

        reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 9 Mar 2018 @ 8:47pm

    A copyright troll lying about his financial situation... never seen this before... oh wait...

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 10 Mar 2018 @ 9:22am

    Lawyers like Richard Liebowitz need to be given heavy smackdowns from judges. How many lives has this guy disrupted or ruined? Having filed 500 lawsuits, I suspect there has to be a lot of innocent victims who couldn't afford a decent attorney and either payed up or went broke trying to defend themselves.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Mar 2018 @ 4:52am

    How is he still practicing?

    The bar must be pretty high for taking away a license to practice law. I mean, you'd think that maintaining the integrity of the profession would be kinda important, so removing someone who is abusing that profession's licensing should be a no-brainer.

    reply to this | link to this | view in chronology ]

  • icon
    wshuff (profile), 12 Mar 2018 @ 5:18am

    The Liebowitz Line = Like baseball’s Mendoza Line but for attorneys.

    As long as I can stay above the Liebowitz Line in my practice, I can avoid complete Prendafication.

    reply to this | link to this | view in chronology ]


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