World's Worst Copyright Trolling Lawyer, Richard Liebowitz, Files Lawsuit Against Ellen Barkin For Posting Photo Of Herself

from the giving-fair-use-the-finger dept

I'm still amazed that any photographer could think it's wise to hire notoriously bad copyright trolling lawyer Richard Liebowitz. Liebowitz, among many other problems, has been sanctioned for lying to the court, sanctioned for failing to comply with court orders, and even got into trouble for lying to a court about the death of his grandfather (in that one he actually had a friend of his father's write a letter to the court basically saying that the judge should excuse Richard's many lies, because he's just not that experienced). And even if you could look past all that, he's a dreadful copyright lawyer. Going back a few years we quoted a judge telling him "No reasonable lawyer with any familiarity with the law of copyright could have thought..." Just a few months ago, a court made it clear that Liebowitz's reputation comes with baggage:

This judge joins the chorus of those telling this attorney to clean up his act. The dockets of each of the cases assigned to me, wherein this attorney represents a plaintiff, are littered with deficiency notices. This is a harbinger for troubled litigation ahead.

Oh and that doesn't even get into how his awful copyright trolling has actually set some useful precedents against copyright trolling that may cost his clients quite a bit of money.

And yet, photographers still seem to hire Liebowitz, including freelance photographer Steven Hirsch, on whose behalf Liebowitz has filed a few lawsuits. The latest one is, in typical Liebowitz fashion, just really, really dumb. Hirsch, who frequently licenses his photographs to the NY Post, apparently annoyed actress Ellen Barkin as she was trying to get into Harvey Weinstein's NY rape trial, so she gave him the finger, which Hirsch captured and licensed to the NY Post's Page Six, which used it as a story to attack her as a "diva."

On January 23rd, Barkin tweeted a copy of that photo along with a single word: "Mood"

And that's what Hirsch, represented by Liebowitz, is suing over.

This action arises out of Defendant’s unauthorized reproduction and public display of a copyrighted photograph of actress and producer Ellen Barkin flipping the bird during the Harvey Weinstein trial, owned and registered by Hirsch, a New York based professional photographer. Accordingly, Hirsch seeks monetary relief under the Copyright Act of the United States

Beyond just the straight infringement claim, Liebowitz also tries a 1202(b) claim, saying that because she didn't show Hirsch's name with the photograph, that she has "intentionally and knowingly removed copyright management information identifying Plaintiff as the photographer of the Photograph." This is just a bad idea. Courts -- including ones in the 2nd Circuit -- have said for there to be a 1202 violation, plaintiff's need to show that defendants knowingly removed the copyright information and that they did so to conceal infringement. The complaint alleges that Barkin did this, but come on. Posting a photo of yourself to social media hardly shows any evidence that she removed Hirsh's name to try to hide who took the photo.

As for the main claim, this seems like a pretty easy fair use case -- though there do remain a bunch of open questions regarding the ability of famous people to repost pictures of themselves taken by paparazzi on social media. But this was someone posting an image of themselves on social media and it's easy to see how the 4 factor fair use test weighs heavily in Barkin's favor -- including the fact that this would have no real impact on the economic value of Hirsh's original photograph.

Of course, the other thing I wonder about: while I think it's a bad law, New York (where this photo was taken, published, and where this lawsuit was filed) happens to have a a right of publicity law (which it calls a "right of privacy"), which says you can't use a photograph of "any living person without having first obtained the written consent of such person," if the use of the photograph is "for the purposes of trade." Is a photograph in a news article "for purpose of trade"? I would think not, but I do wonder if Liebowitz has opened up Hirsch, at the very least, to a counterclaim that he violated NY's right of privacy law.

Either way, Liebowitz's long track record of getting things wrong is well known to judges, and I can't image they'll look kindly on his latest barrage of lawsuits. Also, photographers: there are plenty of good copyright lawyers out there who can tell you whether or not you have a legitimate case. Just because you find one willing to sue over anything, doesn't mean that's a good idea. Perhaps at least consider Liebowitz's track record of judicial sanctions and benchslaps.

Filed Under: copyright, ellen barkin, fair use, richard liebowitz, steven hirsch


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  • identicon
    Damien, 3 Apr 2020 @ 11:07am

    "Right of privacy. A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor."

    One of THE first things budding photographers are told is that if you're doing street photography and plan to sell your photos to others, as Steven Hirsch apparently does, you need to get a model release contract signed to cover your bases. Based on the wording of the above law I'd argue that such laws are exactly why. And IANAL, but I'd argue that a professional photographer selling their works to a newspaper without a proper and signed model release, then suing the subject of the photograph for using said photo on social media, may wish they'd never done so by the time this is all over.

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

    • icon
      Norahc (profile), 3 Apr 2020 @ 11:16am

      Re:

      If he goes the route that the photograph is not used for trade to avoid the publicity rights restrictions, it would definitely seem to eviscerate his foundation for claiming any damages due to financial loss.

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

      • identicon
        Anonymous Coward, 3 Apr 2020 @ 2:44pm

        Re: Re:

        I think Page Six could claim "not for trade" but I'm not sure about Hirsch. Did he take the photo exclusively for use by Page Six, or did he take it so that he could sell/license it? I think the latter is likely, and that's pretty much the definition of "for trade."

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

        • identicon
          Bruce C., 4 Apr 2020 @ 4:57am

          Re: Re: Re:

          On the other hand:
          a) this was in the lobby of a courthouse. No expectation of privacy in a public space.
          b) There has to be an exception to the privacy law for news photography, or photos of crowds at a crime scene or even a ball game where individuals are recognizable would be illegal as well. While a counter-claim would be useful to get them to drop the copyright claim, I suspect that pictures of famous attendees at the Weinstein trial would qualify as "newsworthy".

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

  • icon
    JoeCool (profile), 3 Apr 2020 @ 11:18am

    Speeling

    The complaint alleges that Balkin did this, but come on.

    I think you may have meant Barkin. ;)

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

    • identicon
      Anonymous Coward, 3 Apr 2020 @ 5:33pm

      Re: and puncturation

      plaintiff's need to show

      While a plaintiff's need may be relevant, perhaps dispossessing that need might better fit the sentence at hand.

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

  • identicon
    Pixelation, 3 Apr 2020 @ 5:57pm

    The end of Richard Liebowitz career is sure to be a massive popcorn fest for the rest of us. The side of me with empathy hopes he gets some counseling and medication. The other side of me hopes he goes down in a massive ball of flames.

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

  • icon
    That One Guy (profile), 3 Apr 2020 @ 7:01pm

    Just because the warning signs are behind a single search...

    Just because you find one willing to sue over anything, doesn't mean that's a good idea. Perhaps at least consider Liebowitz's track record of judicial sanctions and benchslaps.

    Just a tip, but if the only lawyer you can get to take your case is one that is regularly slapped down and/or sanctioned by the courts that might be an indication that your case is crap and shouldn't be filed.

    At this point basically any research into Liebowitz should tell prospective clients what a walking disaster he is, so I have zero sympathy for anyone who hires him regardless only to find themselves dragged through the mud with him.

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

  • identicon
    Anonymous Coward, 3 Apr 2020 @ 7:51pm

    Suck it, Hamilton!

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

  • icon
    ECA (profile), 4 Apr 2020 @ 11:34am

    "" if the use of the photograph is "for the purposes of trade." Is a photograph in a news article "for purpose of trade"?"

    Umm,
    Did someone make money from it?? Then its trade.

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

  • identicon
    Carl Seibert, 4 Apr 2020 @ 4:11pm

    No! People! A photo for editorial publication is NOT "for trade". That's not what "for trade" means. Look stuff up before you say something dumb.

    The author seems to be introducing a new concept to DMCA law: if an infringement is so arrogantly blatent that it's obvious to everybody in the whole world, then destruction of copyright management information doesn't need to be in furtherance of the infringement. That's bold! Since the word has been bandied about here, I'll go ahead and say stupid. But bold.

    In social media cases, the courts have been extremely liberal in their definition of CMI and pretty clear that they don't much like the destruction of it.

    What Barkin did was low class (both things, actually) and NOT how you go about a fair use unless you like being sued. Stupid. A lot of that going around, eh?

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

    • icon
      Mike Masnick (profile), 5 Apr 2020 @ 1:08am

      Re:

      The author seems to be introducing a new concept to DMCA law: if an infringement is so arrogantly blatent that it's obvious to everybody in the whole world, then destruction of copyright management information doesn't need to be in furtherance of the infringement. That's bold! Since the word has been bandied about here, I'll go ahead and say stupid. But bold

      None of that is what I said. But, bold of you to just make shit up.

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

    • icon
      That One Guy (profile), 5 Apr 2020 @ 1:28am

      Re:

      if an infringement is so arrogantly blatent that it's obvious to everybody in the whole world,

      In furtherance of that argument perhaps you'd like to point out the blatant infringement in question, because what I'm seeing is a person posting a picture someone took of them to nicely get across their mood at the time(and given the timing it wouldn't surprise me if it was at least in part in response to the paper calling them a 'diva'). Seems like pretty clear fair use to me, but let's go through the four factor test for fair use shall we?

      (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

      Non-commercial, intended to show their mood at the time by taking a picture that was used to belittle the subject and using it as a nice snapshot of what they felt at the time. Likely to weigh in favor of Barkin.

      (2) the nature of the copyrighted work;

      Not really applicable as far as I can tell, maybe slightly against Barkin.

      (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

      The entire picture was used, however to get the same effect that was basically required, so not applicable or slightly in Barkin's favor.

      (4) the effect of the use upon the potential market for or value of the copyrighted work.

      Negligible at best, the market for a picture of Barkin flipping someone off is probably pretty minor, and her using it in this fashion isn't likely to change that.

      Out of the four factors the first looks to be in Barkin's favor, the second potentially against, with the last two either not applicable or leaning in her favor. Yup, that's certainly some pretty blatant infringement there.

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

    • identicon
      Anonymous Coward, 5 Apr 2020 @ 4:15am

      Re:

      You want to know what's stupid?

      Claiming you fucked up submitting court documents because your grandfather died.

      Just like Liebowitz.

      Why is it you guys in intellectual property law can't find anyone other than the most dumbfucked assless chaps to be your bill collectors?

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


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