Rachel Dolezal's Copyright Follies: Sues CBS For Copyright Infringement In Case That Won't End Well

from the so-so-so-many-problems dept

A little over a year ago, we wrote about a copyright dispute involving Rachel Dolezal, who now also goes by the name Nkechi Amare Diallo. As you may recall, there was a fair bit of attention paid to her years ago because while calling herself a black woman, it turned out that she was actually white. Whatever you think of that controversy, our focus was on the fact that she was a client of notoriously inept copyright troll Richard Liebowitz, who had filed a lawsuit over the copyright on a photo in Paper Magazine.

That lawsuit was bizarre on multiple levels, beginning with the fact that Liebowitz was initially representing an entity called Polaris Images, who had apparently worked out an exclusive licensing deal with Dolezal regarding her images. When Paper Magazine's attorneys called into question that "exclusive licensing agreement," Liebowitz, in standard Liebowitz fashion, simply dropped Polaris from the complaint and replaced it with Dolezal herself -- which raised a bunch of questions.

Anyway, earlier this week a new lawsuit caught my attention, as it was Dolezal suing over copyright again, this time suing CBS Interactive, claiming that CBS property ET Online infringed Dolezal's copyright in publishing this photo in this article, published on June 12, 2015.

There are a whole bunch of problems with the lawsuit, and we'll probably cover only a few of them. However, I did notice that it wasn't Liebowitz who was representing her -- which makes sense since last we'd heard Liebowitz was suspended from practicing law in the Southern District of NY. However, it does look like Liebowitz and/or his firm is still involved in the case. The lawyer who filed the case, Daniel Roscho (who appears to run his own copyright litigation practice called "Copyright Justice" even though his law firm's website mostly focuses on real estate law...) filed a declaration with the complaint, noting that this was in partnership with Liebowitz.

The Firm Liebowitz Law Firm, PLLC ("LLF"), and Mr. Richard Liebowitz have been retained by Nkechi Diallo a/k/a Rachel Dolezal, the Plaintiff in the above-captioned matter, to file a claim for copyright infringement. The retainer agreement provides that LLF is authorized to contract and associate with co-counsel. Pursuant to that retainer agreement, LLF has associated with my Firm, The Roshco Law Firm, PLLC and myself, Daniel S. Roscho, and has asked me to pursue this action under its retainer

Even if it's not Liebowitz, the fact that this is done in partnership with Liebowitz is almost certainly going to raise some eyebrows in SDNY, where Liebowitz has a reputation. Why any other lawyer would want to tie his own reputation to Liebowitz's is beyond me.

Anyway, Roshco notes that he is filing this declaration because Judge Jesse Furman somewhat famously has some requirements regarding any case involving Liebowitz. For copyright cases, that includes proof of actual registration of the copyright (that has been an issue in some of the Liebowitz cases) as well a copy of the deposit file that was used to register the copyright (another issue in prior Liebowitz cases). Roshco notes that he doesn't yet have the official deposit copy, but is working on getting it. He still filed the case now because of his concern about the statute of limitations.

It is my good-faith belief that waiting for an official deposit copy of the work at issue before filing the complaint in the instant action may cause Plaintiffs claim to become barred by the statute of limitations and I will promptly file the official deposit copy of the work at issue upon receipt. Therefore, in compliance with the Order, on May 7, 2021 I applied for an official deposit copy of the work at issue from the USCO, which was registered as part of copyright registration no. VA 2-094-553 I am awaiting delivery of the official deposit copy from the USCO.

And, uh, yeah, the statute of limitations thing might be an issue, but I don't think filing now, before Roscho has obtained the deposit copy is going to help much. The statute of limitations on a copyright infringement case is three years. As the complaint itself admits, the publication by ET Online happened... in 2015. I may not be a math genius, but even I can subtract 2015 from 2021 and recognize there's an issue there. Dolezal tries to get around this by claiming that she only discovered the article on May 24, 2018 (it's unclear why she then waited three years to sue), which would put her within the statute of limitations if CBS can't show that she actually knew or should have known about the publication earlier.

But... that's still not going to help very much. Under the Sohm decision last year in the 2nd Circuit (which covers the court this case was in), she can only get monetary damages for the 3 years preceding the lawsuit. That is, even if there was infringement, she could only get the "damages" from 2018 through 2021... for an article published in 2015. It's hard to see much in the way of provable damages there.

And... despite the fact that copyright law has (insane) statutory damages, those aren't available here. If you register the image after the alleged infringement, you can only get actual damages. Dolezal is also asking for punitive damages which are almost never awarded in copyright cases (many courts think that you can't even get punitive damages for infringement, and even though SDNY has suggested punitive damages might be available in some cases, there is nothing at all exceptional about this case that would lead to punitive damages. Or attorneys' fees, which is also asked for.

We haven't even gotten to the question of who actually holds the copyright to this image. The registration says that Dolezal is the "author" of the image. Looking at the actual image suggests that is extremely unlikely. It looks very much like it was taken by someone else, who would have the most likely copyright claim on the image. Perhaps there is some way that this is actually a selfie, but I don't see it. Her right arm is mostly out of frame, but in the lower corner, you can see three fingertips on her side, showing that she is not holding the phone. So it does not appear to be a selfie, and thus it seems like she is misrepresenting herself as the author of the image in question. Remember, it's the person who takes the photo who is almost always granted the copyright, not the person in the photo, or the person who owns the camera. There are a few possible exceptions, but it doesn't seem like any would apply here.

And, finally, there's fair use. The image was used in conjunction with a news article and was relevant to the reporting. It's difficult to see how the use of the image was not fair use.

So even if this is not technically a Richard Liebowitz case, it has all the hallmarks of a typical Richard Liebowitz case, and I cannot imagine that it will end well for Dolezal, Roscho... or Liebowitz.

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Filed Under: actual damages, copyright, copyright troll, daniel roschco, fair use, nkechi amare diallo, punitive damages, rachel dolezal, registration, richard liebowitz, statute of limitations
Companies: cbs


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  • icon
    Stephen T. Stone (profile), 21 May 2021 @ 10:58am

    This case has about five different levels of WTF-ery that I donโ€™t even want to try to unravel. ๐Ÿ™ƒ

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

    • icon
      Samuel Abram (profile), 21 May 2021 @ 11:05am

      Re: the ๐Ÿ™ƒ emoji

      The "๐Ÿ™ƒ" emoji may be the most appropriate here, which I have interpreted in all cases when people use it as "this is most f'ed up."

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

      • identicon
        Anonymous Coward, 24 May 2021 @ 11:22am

        Re: Re: the ๐Ÿ™ƒ emoji

        Personally I interpret it like somebody rolling upside down mid conversation as a gesture of "I am done with this bullshit."

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

    • icon
      Scary Devil Monastery (profile), 24 May 2021 @ 6:22am

      Re:

      I'm not really surprised to see that Liebowitz has been involved in the dumpster fire which is the life of Dolezal. An ethnic white woman who decided she was black and then acted in so deplorable a way that outright insanity or her being a bona fide false flag operation by the KKK to discredit black people seem about equally likely as a hypothesis.

      A match made in heaven. Truly.

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

  • identicon
    Professor Ronny, 21 May 2021 @ 11:09am

    Selfie

    Her right arm is mostly out of frame, but in the lower corner, you can see three fingertips on her side, showing that she is not holding the phone. So it does not appear to be a selfie, and thus it seems like she is misrepresenting herself as the author of the image in question.

    Serious amateur photographer here. A camera with a timer on the shutter and a tripod would let her easily be the photographer.

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

    • identicon
      Anonymous Coward, 21 May 2021 @ 12:20pm

      Re: Selfie

      In a public area with other people wandering about, that seems unlikely.

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

    • identicon
      Anonymous Coward, 21 May 2021 @ 1:04pm

      Re: Selfie

      From your own quote:

      Her right arm is mostly out of frame, but in the lower corner, you can see three fingertips on her side, showing that she is not holding the phone.

      AKA fingers appear on lens, this is either a physically impossible, or very difficult thing to do (depends on a number of other aspects).

      A timer or a tripod makes absolutely no sense as a proposed remedy for human bodies appearing to being in difficult or impossible configurations.

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

    • identicon
      Anonymous Coward, 21 May 2021 @ 5:50pm

      Re: Selfie

      Does anyone else think it's kind of ridiculous to argue that a picture would only be copyrighted by her if it were a selfie? The idea of copyright going to the photographer is based on them having some control of framing and other artistic aspects, while a selfie is kind of the antithesis of art: hold the camera at arm's length, point it at yourself, and get a shitty picture with no real effort. (At some point, people just stopped being bothered by a photographer's arm being in the picture. Few people would've thought it acceptable to do that with pre-cellphone cameras.)

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

  • icon
    That Anonymous Coward (profile), 21 May 2021 @ 1:35pm

    New rule, once they've had 2 shots at 15 minutes of fame, they are barred from trying again.

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

  • identicon
    Anonymous Coward, 21 May 2021 @ 3:44pm

    When Paper Magazine's attorneys called into question that "exclusive licensing agreement," Liebowitz, in standard Liebowitz fashion, simply dropped Polaris from the complaint and replaced it with Dolezal herself -- which raised a bunch of questions.

    I just... what?

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

  • identicon
    Anonymous Coward, 21 May 2021 @ 5:44pm

    she was actually white.

    There's no such thing as "actually" white or blackโ€”I'm aware of no authority that defines any specific level of melanin that makes someone black. Actually, the historical rule was just one drop of "negro blood", which makes literally every human being "black" (though I don't imagine the rule's proponents were big fans of scientific theories about the origins of humanity). On what basis are people refuting her claim?

    I feel like the people bitching about this self-identification will eventually be seen as being on the wrong side of history, like those who bitch when people who are genetically male identify themselves as female.

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

    • icon
      Tanner Andrews (profile), 31 May 2021 @ 6:39am

      Re:

      I'm aware of no authority that defines any specific level of melanin that makes someone black

      Varies from state to state, but generally ranges from 1/8 to 1/32; it is less important now because Jim Crow is at least nominally no longer in effect.

      As an easy test in the Dolezal case, you might check and see if both parents were ``white''. So, if, for instance, in 2015 she acknowledged that she was "born white to white parents", that might help you evaluate her claims.

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

  • identicon
    Anonymous Coward, 21 May 2021 @ 6:30pm

    I'm starting to think John Smith might actually be Richard Liebowitz...

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

    • identicon
      Rocky, 22 May 2021 @ 4:47am

      Re:

      If you consider Jhon Smith's disdain for people with an education, the two can't be the same person since Liebowitz actually managed to muddle through law school.

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

      • identicon
        Anonymous Coward, 22 May 2021 @ 6:22pm

        Re: Re:

        Don't you mean he managed to scam through law school?

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

      • icon
        Scary Devil Monastery (profile), 24 May 2021 @ 6:40am

        Re: Re:

        "If you consider Jhon Smith's disdain for people with an education, the two can't be the same person..."

        We ARE talking about Baghdad Bob, the anthropomorphic personification of cognitive dissonance, right? He's also against defamation, except when he himself defames other people, against free speech limitations except when he wants to shut others up, and against standards of jurisprudens because there must be principles of law.

        "...since Liebowitz actually managed to muddle through law school."

        Liebowitz's old alma mater of Hofstra university has had some spectacular failures of humanity among its student body; Richard Liebowitz, Amora Rachelle, Danmell Ndonye, Kira Kazantsev and Evan Sachs are just what made the news. I don't know whether that's a common theme among US universities but I certainly can say it's not something I'd recognize from universities here in europe.

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

        • identicon
          Anonymous Coward, 25 May 2021 @ 3:09am

          Re: Re: Re:

          I don't know whether that's a common theme among US universities but I certainly can say it's not something I'd recognize from universities here in europe.

          Universities in general have devolved into little more than degree factories, aimed at cashing in on demands for increased paper qualifications by corporations. Naturally, companies have simply jacked up their requirements to land the "cream of the crop" graduates they feel entitled to as businesses, and graduates have found that they simply haven't been able to keep up. Of course, nobody wants to rein in this behavior: companies will claim that their high standards are a sign of being "competitive", governments and education policymakers permit this sort of behavior (because not acceding to corporate demand would be political suicide), and graduates end up flipping burgers or doing some other menial job their qualifications were supposed to help them avoid.

          Of course, even those failures tend not to be the sort of bottom-feeding scum that are copyright lawyers.

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

          • icon
            Scary Devil Monastery (profile), 27 May 2021 @ 2:18am

            Re: Re: Re: Re:

            "Universities in general have devolved into little more than degree factories, aimed at cashing in on demands for increased paper qualifications by corporations."

            It's almost as if I can see a common theme among the absolutely worst failures of the US; profit motives used as an engine for stuff you'd think was in the public's interest to make work properly.

            Core infrastructure, education and legislation shouldn't really be left to the lowest bidder or the one most keen on cutting corners.

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

  • identicon
    ANANONANA, 24 May 2021 @ 7:37am

    lol, I had never considered this but I have never considered that any time I've asked, or had friends ask, for a stranger to take a quick photo of us since we're on frame we, legally speaking, would need to work out a deal with those random strangers to do anything with these photos...

    Kind of nut even if I can see the sense behind it.

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

  • identicon
    Anonymous Coward, 26 May 2021 @ 12:26am

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

  • identicon
    Treffe, 26 May 2021 @ 1:35am

    In your article you have an error, at one point you spell his name Roscho and an other time Roshco.

    Though at least you don't do it in the same sentence in an official court deposit with the name again appearing at the signature.

    I mean that would be awkward.

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


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