Copyright

Sanctions Imposed on Alleged "Copyright Troll"

for what the judge concludes are discovery violations, in a copyright case involving photos of model Emily Ratajkowski.

|The Volokh Conspiracy |

From Judge Lewis A. Kaplan's decision Wednesday in Sands v. Bauer Media Group USA, LLC:

Digital imaging and the Internet are among the wonders of our age. In combination, they permit the virtually instant and worldwide electronic dissemination of high quality images that can be, and often are, copied and redisseminated by others. Nonetheless; this circumstance has created problems for professional photographers and publishers of images that were unimaginable in the relatively recent past. It has led also to the creation of a lawyer business model that has deluged this Court with photographic copyright infringement cases since early 2016.

This deluge is attributable to plaintiff's counsel in this case, Richard Liebowitz. According to the Court's records, Mr. Liebowitz, who was admitted to practice in this Court in October 2015, filed 1,110 lawsuits in this Court from the beginning of 2016 through September 16, 2019. That is an average of more than one new case on every day the Court has been open for business. Each and every one of those 1,110 cases has been a copyright infringement suit. Many—probably all or nearly so—have been brought on behalf of photographers who assert that their images have been infringed by Internet web sites and other publishers. This case is part of the downpour.

Of course, photographers who create copyrighted images should be fairly compensated for their work. Those who infringe by using such images in violation of the rights of a copyright holder should be held to account. On the other hand, as I noted in a prior case, "[t]here may well be justification for [the] implication [that a significant portion of the 1,110 cases] … [have been] strike suits, designed to extort settlements from defendants on the basis that the defense costs would exceed what plaintiff would accept in settlement." {See also, e.g., Pereira v. 3072541 Canada Inc., No. 17-cv-6945 (RA), 2018 WL 5999636, at *3 (S.D.N.Y. Nov. 15, 2018) (describing Mr. Liebowitz's litigation tactics as "an apparent attempt to increase costs and to extort unwarranted settlements").} Indeed, another judge of this Court has referred to Mr. Liebowitz as a "copyright troll"—one who is "more focused on the business of litigation than on selling a product or service or licensing their copyrights to third parties to sell a product or service. A copyright troll plays a numbers game in which it targets hundreds or thousands of defendants seeking quick settlements priced just low enough that it is less expensive for the defendant to pay the troll rather than defend the claim."

Moreover, 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." And that is what I am asked to do here by defendant's motion to dismiss the action as a sanction for alleged discovery misconduct or, alternatively, to strike portions of the evidence that plaintiff has submitted in support of a motion for summary judgment or require a bond as security for costs and fees pursuant to Local Civ. R. 54.2.

For more details, which involve a picture of the model, Emily Ratajkowski, walking in lingerie down the streets of New York City in mid-January—and, incidentally, what the court describes as Mr. Leibowitz's failure to comply with discovery obligations—see the opinion, though here's a brief excerpt that offers a sense of the substantive dispute:

Defendant Bauer Media Group USA LLC … operates the web site FHM.com. FHM.com was among the many media outlets that ran stories about the DKNY video on March 13, 2017, its story being entitled Emily Ratajkowski's New DKNY Ad Is Just Her Walking A Dog In Lingerie.

The article was accompanied by a set of photographs that included the two images in which plaintiff claims copyright. The article reported and commented on the release of the DKNY video. It attributed each of the photos on its web page—including the two allegedly infringed Sands images, both of which had appeared on Ms. Ratajkowski's January Instagram posts—to "Instagram/emrata," "emrata" being Ms. Ratajkowski's Instagram handle.

Here's the outcome:

[A]s a sanction for alleged discovery misconduct …[,] plaintiff's counsel. Mr. Liebowitz, shall pay defendant's reasonable attorney's fees, for making and litigating this motion, and plaintiff shall show cause … why the Court should not condition plaintiff's ability to proceed with this action on the posting of a bond or other sufficient secmity in the amount of $50,000 for costs and attorney's fees in this action ….

NEXT: May Lay! May Lay!

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  1. One very clearly possible defense is as you tagged it ‘Fair Use”.

    Since the point of both the video and the Instagram post were to publicize DKNY and Ms. Ratajkowski. I doubt either would object to any publication covering the video. Although the possibility exists that Ms. Ratajkowski seeded the photos for just this opportunity.

    It is also possible that DKNY actually has copyright as the the video and/or pictures as they may well have been a ‘work for hire’.

    Liebowitz has developed a certain notoriety in that court due to the large numbers of suits, his apparently sloppy legal work and over the top style of litigation.

    1. “It is also possible that DKNY actually has copyright”

      Except that if you want to sue for statutory damages, you have to have registered the copyright. It’s fairly difficult to establish a work-for-hire copyright… there needs to be a fairly distinct contract in place to establish it, and it’s far more likely that a work intended to be for-hire isn’t than it is that a work is accidentally covered by “work for hire”.

  2. From the decision: Obviously important to these proceedings was the licensing history of the allegedly infringed photos, which could have a significant bearing on the fair use defense, actual damages in the event of liability, and perhaps other issues as well.

    From that I take it that we have a judge who supposes that it is possible to take a celebrity picture of a model, modeling, on the streets of New York, and leave open the question of whether that photograph ought to be treated as having market value. That is not possible.

    Leave aside that everyone, however accomplished as a photographer, may take a photograph by happenstance that has market value. Leave aside that for every photographer who routinely sells his work, there is, and ought to be, a presumption that every photograph the photographer makes has market value, and deserves full copyright protection. Leave aside that the style of photograph in this instance (based on the fame of the model, and the public locale) is especially marketable, and is in fact the basis of a huge photographic industry under the name, “paparazzi.” Even with none of that, the fact that someone stole the photograph, and published it, establishes that it had market value for the thief. At that point the questions should be (1) for what sum would the photographer customarily have licensed work of that sort, and (2) whether there was additional damage to the copyright because of loss of residual value in the photograph.

    The court owes the photographer a presumption of market value, and full copyright protection, absent a showing of fair use, for which the burden must be on the plaintiff—and which in this instance looks like a burden which could never be overcome.

    I have no idea whether that means the judge ought to be sanctioned instead of the lawyer. It does mean that either the judge does not understand copyright, or he is participating in some kind of steal-everything legal movement to abolish copyright as a practical matter.

    Note that in writing this I am not writing as an attorney of any kind, but instead as a professional photographer with a considerable interest in copyright protection for my own work. I have many years’ experience learning the customs and practices of the photography business, and what I have written here expresses a summary of that experience. I am anxiously aware that the 4-part test referenced in this case has become a touchstone for some lawyers who are ideologically opposed to copyright, and who suppose it can give them, somehow, leverage to overturn that legal history and the business customs built up around it. I hope this judge is simply confused, and not one of those anti-copyright trolls.

    1. Leaving aside the fact that the 4 part test is part of the Supreme Court’s precedent, and as such hardly the faux pas that you seem to imply for fair use analysis. This was a sanction for the behavior of the attorney in this and previous cases. It is clearly not a ruling on the merits.

      Which means this is not about the plaintiff or the defendant. If the copyright claim is valid and the plaintiff entitled to relief and would be able to prove so to the court but the bond precludes them doing so, then I feel sorry for them as they have chosen to employ an attorney who wasn’t up to the task. Discovery violations are a VERY serious matter. And it is entirely appropriate for the Judge to sanction given a pattern of behavior significant enough for the possible sanctioning of the Attorney to be part of a body of law.

      1. “If the copyright claim is valid and the plaintiff entitled to relief and would be able to prove so to the court but the bond precludes them doing so, then I feel sorry for them as they have chosen to employ an attorney who wasn’t up to the task. ”

        It is important to note that the actions of a plaintiff’s attorney are imputed to the specific plaintiff. It is somewhat similar to employer’s vicarious liability. The plaintiff selected the attorney to represent him, and thus assumes the responsibility for the attorney’s actions in the disposition of the case. The plaintiff’s attorney (or simply, the plaintiff) was certainly “up to the task.” The attorney was employing impermissible tactics in order to increase the defendant’s litigation costs in an attempt to pressure defendant to settle the case. Specifically, the plaintiff sought to extend the discovery period beyond the agreed-upon timeframe, which would certainly result in the aforementioned increase in litigation costs. The court found this conduct sufficiently egregious to warrant the sanction of potential dismissal of the case should the plaintiff not comply with the conditions set forth by the court. In short, for Stephen: Take care who you employ as an attorney, because you will “own” their tactics. The photographer in the instant case, Mr. Sands, learned this the hard way.

      2. Leaving aside the fact that the 4 part test is part of the Supreme Court’s precedent,

        It is, but it’s also been codified by Congress in the Copyright Act itself.

    2. “The court owes the photographer a presumption of market value, and full copyright protection, absent a showing of fair use, for which the burden must be on the plaintiff—and which in this instance looks like a burden which could never be overcome.”

      I’m sure you can point to something in the US Code or Federal Rules of Civil Procedure reversing the traditional burdens of proof and persuasion in copyright cases, right?

    3. From that I take it that we have a judge who supposes that it is possible to take a celebrity picture of a model, modeling, on the streets of New York, and leave open the question of whether that photograph ought to be treated as having market value. That is not possible.

      Or possibly a judge who wanted to be provided evidence, from licensing agreements with others, as to what the value actually is, and how much it was damaged by Bauer, all assuming that Bauer’s publication was not fair use. And it does seem that Bauer has some sort of argument on the fair use defense.

      1. Really? What is the fair use argument?

        As for the other bits, photographers sell rights to use certain of their photographs just once. That cannot mean that before photographers sell rights, the copyright has no value. If that were true, there would be no stock photo industry.

        You steal the photograph, then the photographer sends you a bill he thinks is appropriate. Probably, because he doesn’t want to waste a lot of time, he would put the amount somewhere near what he usually gets for similar work, maybe a bit higher. Then you, the thief, get to argue you should have to pay nothing? On what basis?

        1. “Really? What is the fair use argument?”

          We’ll find out if the case continues and the photographer complies with his obligations under the Discovery Act. Why you keep ignoring that this motion was about the plaintiff’s misconduct during the case, rather than the merits of the case, is beyond me.

          “You steal the photograph, then the photographer sends you a bill he thinks is appropriate. Probably, because he doesn’t want to waste a lot of time, he would put the amount somewhere near what he usually gets for similar work, maybe a bit higher. Then you, the thief, get to argue you should have to pay nothing? On what basis?”

          On the basis that damages are an element of the plaintiff’s claim that the plaintiff has the burden of proof to establish. It’s pretty simple.

          1. “On the basis that damages are an element of the plaintiff’s claim that the plaintiff has the burden of proof to establish.”

            Except that copyright claims allow for statutory damages in lieu of actual damages.

            1. As the order notes, the plaintiff in this case expressly sought actual damages in his complaint.

            2. Except that copyright claims allow for statutory damages in lieu of actual damages.

              Sometimes.

    4. “Leave aside that everyone, however accomplished as a photographer, may take a photograph by happenstance that has market value”

      Determining the “market value” of a photograph is extremely difficult, which is why there are statutory damages available to most copyright plaintiffs as an alternative to seeking actual damages.

      1. Not that difficult.

        “How much did it cost to license that photograph for a similar use?”

        1. bernard, the photograph has never been licensed previously, and may never be licensed again. The one chance to license it is what the thief has stolen. Now what?

          1. According to the case it was licensed to two stock agencies, and Ratajkowski, the model, posted it herself on Instagram.

            So why didn’t the Instagram posting destroy the value, and why didn’t Sands produce the licensing agreements with the agencies?

            I don’t know exactly how stock agencies work, but my impression is that they offer the right to use an image more than once.

            1. bernard, with regard to my “Now what?” query above, I was not referring to this particular case. I meant for the description to be a hypothetical. For better clarity it should have begun with, “Suppose,”

              Stock agencies offer negotiated rights. No image offered for stock use can be said to have a fixed or established price, unless the photographer wants it that way, which is unlikely.

              Prices depend not only on what the photographer will accept, but also on how the image is to be used. An image which is licensed for one use at a smaller size, as an article illustration inside a magazine, will be charged for at a notably lower price than the same image, licensed to the same client, for a single use on the magazine’s cover.

              Images to be used continuously, such as on product labels, may be licensed for open-ended, repeated use over time, and may or may not be licensed for exclusive use. Those prices would likely be higher still than for one-time publications.

              But note that a photographer remains always at liberty to tailor a price not only to the use, but to the client, and to the client’s ability to pay, and in the process to take the photographer’s sympathy and regard for the client into account as well. A major publication with a large circulation will typically pay more than a smaller one. The photographer’s local church group might get use of the image at little or no cost, while other clients pay more.

              Any amount of use of an image might be licensed, up to and including rights for every kind of use, during the entire term of the copyright. But even that might not amount to the outright purchase of the image, if the rights of exclusive use and resale to others are not included.

              Note however, that there is no feature in the contract, or as far as I know in any law, to say an image which has never been licensed to a user has no value until that is established by the image being paid for pursuant to a particular use. So long as the photographer has not sold all rights, exclusively and forever, he remains in a position similar to that of a landlord renting an apartment, in that he can specify at pleasure what price he will rent for, and elect not to rent for any lower price, or accept that the apartment will remain vacant. But the image is unlike an apartment in that it can be rented repeatedly and/or simultaneously to multiple users at the photographer’s discretion, and at different prices to each of them.

              Images for routine stock use, which is what I have been describing, also vary considerably in price according to the quality of the image, and the subject of the image. An especially high quality image (judged both technically and graphically) of a famous person doing something scandalous will be notably more expensive to license than images of the same person in boring repose. Images which are the exclusively-available record of some high-interest event will be licensed at higher prices than images of the same event if similar images were captured by many. Even a terrible-quality image of some notorious event or subject might command high prices if that is the only such image available.

              Photographic images used for artistic purposes work somewhat differently. They will vary in price according to the subject of the image, its aesthetic quality as judged by many, its adaptability to hang in various venues, the size of the print, and the photographer’s reputation as an artist. Artistic use is typically sold on a perpetual basis to the purchaser, and may or may not be exclusive. If not exclusive (exclusivity is rare for photographs) an artistic image can be sold in contracted limited editions, and those can vary by number and print size, with different prices charged accordingly for prints from the various editions.

              Given all that, I am hard pressed to understand how the judge’s severe focus on previous licensing information could be applied in a case like this one, without depriving the photographer of almost all the liberty and discretion which law and custom have built into his copyright. Can you think of a way to explain it to me?

              In a different kind of case, where the photographer was suing not for a licensing fee for an image with a short history, but for the loss of all copyright value in an image with a long and diverse licensing history, the entire licensing history might be indispensable. Do I misunderstand the nature of this case? I confess that I had trouble with the judge’s presentation of the relevant facts, which seemed so sloppy to me that I concluded the judge was not at home with the notion of copyright for photography.

              1. “Given all that, I am hard pressed to understand how the judge’s severe focus on previous licensing information”

                There is no severe focus from the judge. Sanctions for failing to disclose materials you admit you were legally obligated to disclose but “forgot” to do so, then “remembered” when it was time to file your motion for summary judgment, is hardly a severe focus.

                And go back to the original quote you cited. “From the decision: Obviously important to these proceedings was the licensing history of the allegedly infringed photos, which could have a significant bearing on the fair use defense, actual damages in the event of liability, and perhaps other issues as well.”

                Notice that the judge says “could have,” not “has”? Are you really suggesting that there is no possible way a licensing agreement could have any bearing at all on any issues related to this case?

              2. Do I misunderstand the nature of this case?

                Without fail.

    5. Steve, you wrote

      “From the decision: Obviously important to these proceedings was the licensing history of the allegedly infringed photos, which could have a significant bearing on the fair use defense, actual damages in the event of liability, and perhaps other issues as well.
      And seem to be unhappy about this statement and think it suggests the judge thinks the photos might have zero value. I don’t think that’s what it’s saying. I think judge thinks evidence showing how much customers have paid to use the photos is helpful in figuring how much money the photographer lost when person copying and displaying them did so. Like it or not, that is something a judge needs to assess to figure out damages. The damages aren’t just any old number of dollars the photographer would like to demand, they are what he could actually charge.

      Wanting evidence to determine the monetary value of something is not denying that it probably has some value. Banks like houses to be assessed before backing mortgages. That’s not because they think the house is probably worth nothing. It is because they want to know how much it is worth!

      1. lucia, you sound like you make sense, but your reasoning does not fit a typical, very common, photo marketing situation, which seems to have been applicable in this case. What happens when the particular photo has not previously been licensed? Before it gets a licensing history, every licensed photo gets licensed for the first time. Can that mean that if you cannot yet prove a licensed price for that particular image, then anyone is entitled to take it for free? And if that did happen, would it then prove that the licensed price is zero? If not, what is the judge going on about, with talk about a fair use defense?

        I don’t think that is how photographic copyright works—which makes the mortgage example inapplicable. Photo licensing is more like renting, where the landlord retains ownership, and charges a rent which he estimates the market will bear.

        1. “lucia, you sound like you make sense, but your reasoning does not fit a typical, very common, photo marketing situation, which seems to have been applicable in this case. What happens when the particular photo has not previously been licensed?”

          No, lucia_l makes perfect sense and your understanding of the facts is as mistaken as your understanding of the law. The photographer’s attorney is being sanctioned for failing to comply with his obligation to disclose the two licensing agreements the photographer claims he entered into in support for his motion for summary judgment.

          “what is the judge going on about, with talk about a fair use defense?”

          Who cares? That’s not what this motion is about. This motion is about discovery violations by the photographer, discovery violations that may affect the ability of the magazine to mount a fair use defense. Until they actually have all of the evidence they are entitled to, it’s pretty pointless to argue about whether they have a particular defense.

          1. jph12, suppose the licensing agreements, if disclosed, would show the photographer licensed one-time-use rights at no cost in each case, while retaining all future rights unimpaired for himself. That would be a plausible thing for a photographer to do, if he thought by doing so he could improve market awareness, and then sell rights to others at good prices.

            I have done that myself. In fact, I have built a successful fine-art photography business based on doing that. And just as in this instance, I let a third party—an art gallery in my case instead of a stock agency—do the no/low-cost marketing on my behalf.

            What earthly difference could that make for a fair use argument? And unless the court intends to substitute its own expert judgment for the photographer’s, about marketing photographs, using that kind of marketing tactic can only be presumed to increase the value of the image, or why would the photographer do it?

            So the entire bit about demanding to see previous licensing agreements is irrelevant to any copyright argument that could legitimately come up in this case—except in one unlikely contingency. That contingency would be if initial exposure somehow proved that the image was destined to be a marketing skyrocket, and it was already possible to show a very large value for the total future market for the image, and the photographer was then set to sue, maybe implausibly, for destruction of all that value.

            But in that circumstance, not disclosing that evidence could only harm the photographer’s interests, not the other’s. That is because the photographer would thereby foreclose any possibility of winning damages commensurate with the undisclosed evidence. That result would benefit the alleged copyright infringer, at the photographer’s expense. So that is hardly an argument to be offered by the alleged infringer’s attorney.

            In short, there is no conceivable circumstance in this case—with a newly-made image on offer without a notable marketing track record—where disclosing the marketing history could in any way impair the photographer’s claim. Only not disclosing could do that, and that is no business of the court’s.

            The practical reality in this case is that marketing results must be presumed still to come, after passage of time and more marketing experience. My estimate is that valid fair use arguments could not possibly be affected by the marketing history available at this stage in the life of the copyright. I would welcome correction on that point from anyone who thinks they can imagine a way it could happen. Please note, I have not said fair use is not possible, just that the marketing history is irrelevant to determine it in this instance.

            There are some commenting here who seem to suppose that if previous use of the image had been licensed at low or zero cost, that proves subsequent use must also be available to others at low or zero cost, and therefore the image can be stolen with impunity. If you think that, then you do not understand how copyright of photographic images works, nor the marketing of them either.

            In customary photographic marketing, each use of an image, and its terms, are negotiated separately, and the fee for a license can, and typically does, vary considerably from case to case, depending on the use, the client, and the photographer’s estimate of benefits in addition to licensing fees (publicity, for instance) he stands to receive. A deal negotiated with one client may have no effect on what the next client can expect, because the photographer is at liberty to dispose of his residual rights at pleasure. For the same image, a photographer might, for business reasons, for purely personal reasons, or for charitable reasons, bestow cost-free use on one client, but charge the next client a high price. That often happens, by the way.

            The judge’s (admittedly confusing) opinion suggests to me that he does not understand that previous licensing experience in this case must be treated as irrelevant, and supposes instead that discovery would turn up some value which could be treated as an appraisal. Deciding on that basis would treat the photographer’s entire residual rights in the image as if they did not exist, or as if the photographer was not free to manage them at will. It would amount to depriving the photographer of his copyright arbitrarily.

            1. “What earthly difference could that make for a fair use argument?”

              Part of a fair-use argument is the effect of the unauthorized use on the market for authorized uses. To establish that, you need to know what the market for authorized uses IS.

              The plaintiff may claim “the unauthorized use totally destroyed the market for authorized uses.”, but in court, that claim would be expected to be backed by evidence, and refusing to release evidence during the discovery phase of a trial is serious misconduct.

              1. Part of a fair-use argument is the effect of the unauthorized use on the market for authorized uses. To establish that, you need to know what the market for authorized uses IS.

                James, some folks read it that way, but that reading is mistakenly reasoned. Each of the 4-part tests must be read as a perimeter within which to cabin fair use, not as a means for its enlargement. It would be especially foolish to suppose that parts 1 – 3, read as restrictions in a case where the alleged fair use could not pass them, could then be trumped by reading part 4 as an enlargement sufficient to overturn the others.

                If you want to read part 4 as more important than the others (as one court has suggested), then because part 4 remains a limitation, not an enlargement, you have to read it as potentially trumping a claim to fair use after the first 3 tests have been passed, or remain ambiguous. Thus, even if parts 1 – 3 point to fair use, part 4 says if the result will substantially impair the market for the copyrighted work, it is not a fair use.

                Part 4 does not say no copyright exists on a work for which the copyright holder cannot demonstrate a current market. The copyright holder’s rights last for a statutory term of years, and during those years the copyright holder may develop a market now, later, or never, without concern that he loses copyright until the term runs out. Part 4 does not add to that a requirement that the copyright holder demonstrate a market.

                So you are correct in one limited sense only. If a copyright holder goes to court to claim damages for the loss of substantial market share caused by an infringement, then evidence will be needed to quantify the loss. Otherwise, market history has no effect on maintaining copyright, nor should a feeble market history prejudice a court decision in favor of fair use where fair use is not otherwise fully warranted. To hold otherwise would be to arbitrarily terminate the copyright holder’s residual rights in his creation.

                1. Want to try again, this time responding to what I actually wrote?

                  ” Part 4 does not add to that a requirement that the copyright holder demonstrate a market.”

                  With whom are you having an argument on this point?

                  ” market history has no effect on maintaining copyright”

                  Unless, of course, fair use exists. Statutorily, fair use is not infringement… so to establish infringement, plaintiff MUST prove that the use made of the work is NOT fair use. And part of fair use analysis is 17 USC 107 (4)

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

                  Leading back to the point I made above… concealing or refusing to disclose evidence related to the potential market of the work during discovery is a serious matter.

                  1. Statutorily, fair use is not infringement… so to establish infringement, plaintiff MUST prove that the use made of the work is NOT fair use.

                    James, maybe I am behind. Last I checked, the Supreme Court had said establishing fair use was an affirmative burden on the defense. Possibly that changed and I missed it. Do you know otherwise? If not, then you probably do not need to read further to see why what you have been claiming is mistaken.

                    Other than that, you are the guy I am having the argument with. You continue to argue as if part 4 of the fair use test were an enlargement of the power of fair use. It is not. It is a restriction on fair use. Depending on the other enumerated factors as well, you may not be able to claim fair use if you too much damage the market for the copyrighted work. Thus, part 4 limits fair use to protect copyright from too much restriction. That is the opposite of enlarging fair use to limit copyright, which seems to be what you are campaigning for.

                    If your argument were regarded as valid, fair use would unconstitutionally swallow the copyright privilege almost entirely. For a work with no (or scant) market history, a claimant to fair use must do well on items 1 – 3. If that were not so, under your interpretation, part 4 would mean every unpublished work would stand in danger of immediate loss of copyright from the moment it was created, and for as long as it went unmarketed. That would be absurd. It would make a nullity out of the notion of a copyright lasting for a prescribed term of years.

                    1. If your argument were regarded as valid, fair use would unconstitutionally swallow the copyright privilege almost entirely.

                      Copyright is statutory, not constitutional. Congress is allowed under the constitution, but not required, to create copyrights. So it wouldn’t be “unconstitutional” to do that.

                      Not that your legal analysis is correct. The fourth factor — it’s not a part of a test, but simply a factor to consider — is not a restriction on fair use. It’s part of the definition of fair use.

            2. “jph12, suppose the licensing agreements, if disclosed, would show the photographer licensed one-time-use rights at no cost in each case, while retaining all future rights unimpaired for himself. That would be a plausible thing for a photographer to do, if he thought by doing so he could improve market awareness, and then sell rights to others at good prices.”

              Suppose the licensing agreements showed something entirely different. This motion is about the photographer’s failure to disclose and produce materials he was under a legal obligation to produce.

              I mean, you realize that the photographer’s attorney admitted he was legally obligated to disclose the agreements and just forgot, right?

              “The judge’s (admittedly confusing) opinion”

              There’s nothing particularly confusing about the opinion.

              “suggests to me that he does not understand that previous licensing experience in this case must be treated as irrelevant, and supposes instead that discovery would turn up some value which could be treated as an appraisal.”

              Which clearly explains why the photographer cited to the two licensing agreements as part of his motion for summary judgment, although curiously providing no actual evidence of them.

              So many words. So little understanding.

            3. “Only not disclosing could do that, and that is no business of the court’s.”

              This, of course, is completely untrue as a matter of law. Like oh so many of your claims.

        2. “On the basis that damages are an element of the plaintiff’s claim that the plaintiff has the burden of proof to establish.”

          Photo licensing comes in many different forms, some of which are like renting and some of which are not at all like renting.

        3. I don’t think that is how photographic copyright works—which makes the mortgage example inapplicable. Photo licensing is more like renting, where the landlord retains ownership, and charges a rent which he estimates the market will bear.

          The relevant question is what rent the market actually will bear, not what he claims he “estimates” it will bear. Let’s suppose someone squats in said apartment, and the landlord wants to sue them for lost rent. Do you think the landlord can say, “Well, I’d have charged $20,000 per month, so that’s what you owe me”? (I mean, he can say that. But do you think a court would award damages on that basis?)

    6. Note that in writing this I am not writing as an attorney of any kind, but instead as a professional photographer with a considerable interest in copyright protection for my own work. I have many years’ experience learning the customs and practices of the photography business, and what I have written here expresses a summary of that experience. I am anxiously aware that the 4-part test referenced in this case has become a touchstone for some lawyers who are ideologically opposed to copyright, and who suppose it can give them, somehow, leverage to overturn that legal history and the business customs built up around it. I hope this judge is simply confused, and not one of those anti-copyright trolls.

      Shorter Lathrop: I don’t know anything about the law except what I wish it said.

      1. DN, yup. That is sort of right. Not being a lawyer, if you catch me arguing about what the law is, it could mean I’m trying to provoke you into giving me free legal advice. Otherwise, I would be foolish to waste time trying to argue consequential questions of law with lawyers. So I do not do that. Not once has any opinion of mine ever affected the state of the law.

        Too bad lawyers and judges are not similarly willing to take instruction on factual questions they know little about. Neither you, nor the judge in the case in question, nor either of the lawyers, objected to basing a factual determination on what is actually a useless presumption about how to determine the value of a newly-made photographic image. That would not be of great consequence, except you extend that mistaken reasoning to put copyrights in jeopardy. Copyrights are of great consequence.

        I object, because your errors, if repeated throughout the legal system, could prove costly to me. So yeah, you are going to hear from me about what I wish the law said. I wish the law did not say it can manufacture facts by mere assertion, and damn the real-world consequences for people who live by real-world facts because those are the only ones they have.

        Instead, here is how to get it right. You make the law say there is no reliable way to determine the value of a never-marketed photographic image, except to let the copyright term run to conclusion, and while doing that, give the photographer full copyright protection to market the image as he sees fit. That is exactly right, and factual.

  3. IANAL, so part of this confuses me. (I am one of those who thinks intellectual property is nonsense, but I don’t think that matters here)

    If the defendants actually did use a copyrighted picture without permission, and if the copyright owner is happy with the defendant being punished by legal fees far higher than any licensing costs would have been (presumably plus some nominal retrospective licensing fees), then what is wrong with pricing the settlement cost low enough to avoid tying up the courts? It seems like a perfectly reasonable win-win-win for just about everybody. Legal system punishes the guilty at minimal court cost, copyright owner gets satisfaction, copyright thief gets punished, Emily R gets some royalties, her employer gets publicity.

    On the other hand, if the defendant could win at enormous cost by asserting fair use or show that the copyright was invalid, then that is an abuse of the system. Is there any way for winning defendants to recover costs?

    How similar is this to patent trolls?

    1. Professional Photographers generally have an inflated idea of the value of their work.

      Having said that it is possible that there was a license for the work to use. The Photographer gave permissions for Ratajkowski to publish the photo and as a model she should certainly be aware of the value of the photo and of her image.

      It is certainly possible that the photo was a “work for hire” and a third party paid the photographer to take it and received a license for it’s use or later obtained teh copyright in another way.

      I know when I hire a photographer I am very careful about the rights I have in the photo. I usually get a worldwide license which sometimes requires credit and sometimes doesn’t

      1. “It is certainly possible that the photo was a “work for hire” and a third party paid the photographer to take it and received a license for it’s use or later obtained teh copyright in another way.”

        Actually, under the US copyright law concept of “work for hire”, if the photo was work for hire, the copyright was owned by the third party from the very first instant it existed. In work for hire situations, for the purposes of copyright law, the employer is considered the author / creator .

        Note: I don’t think work for hire actually applies here.

        1. Sometimes a photographer may reserve rights even when someone hires the photographer to take a picture.

          However if the photographer is an employee then generally the employer owns the copyright.

          1. The key in your second sentence is employee. I don’t think independent contractors (like a photographer hired for a specific gig) are covered by the work for hire doctrine.

            1. They can be – subject to an agreement.

              1. It all depends on the contract. If the employer wants ownership of all works created by the creator, they have to spell that out with no ambiguity in the contract.

  4. It seems like the judge is just mad because the guy files lots of lawsuits. If “[t]here may well be justification for [the] implication [that a significant portion of the 1,110 cases] … [have been] strike suits,” then the judge should figure it out, and act accordingly. As is, it sounds like he is just guessing.

    1. No, the tactics of the plaintiff during discovery in this specific case, failure to produce discoverable evidence that was readily available to the plaintiff only (the licensing agreement the photographer had with the licensees) within the agreed-upon timeframe for discovery, which is a tactic to, rather unnecessarily, increase the defendant’s litigation costs, was the reason for the court’s sanction. The court’s notice of the plaintiff’s many suits just set the table for the court to basically say: “We are familiar with this particular attorney’s litigation tactics, and where these tactics run afoul of the rules of this court, we will countenance them no longer.” The court is guessing nothing; they are familiar with the tactic the plaintiff used, and it’s one with one very clear purpose, to force settlement by abusing and disregarding the rules of the court.

      1. I would also add that I believe outright dismissal of the case with prejudice was entirely warranted in this case, and the court went rather easy on the plaintiff in giving them another bite at the apple. Perhaps it was the court’s hope that Mr. Sands would seek out another attorney to take up the case based on the presumption that Mr. Sands was unaware that he hired a sleazeball.

  5. Two questions for everyone who supports the judge in this case:

    1. Do you assert that as a matter of law, a photograph being published for the first time, with no earnings history, is for that reason more subject to fair use by third parties than another photograph which has been published multiple times with a robust earnings history?

    2. If yes, what legal factors prevent that from becoming a de facto abolition of copyright for unpublished photographs?

    1. For the, hopefully, last time, this decision isn’t about fair use. It’s a discovery sanction for failing to disclose licensing agreements the photographer’s lawyer admits he was legally obligated to produce. He admits he had to produce them. He admits he didn’t produce them. He admits that he referred to them (but still didn’t produce them) in his motion for summary judgment.

      Stop trying to pretend this case is about something other than discovery sanctions.

      1. Sorry, jph12, I meant to open a particular substantive issue, but not with you. Your brilliant commentary and vast knowledge of the subject defeats me every time, so I can’t afford to get involved with you. I hope you will take this as proof of my abject surrender in the face of all your remarks—now, and forever more. You win.

        1. As lucia_l so eloquently stated, “I get you think you are trying to approach a substantive issue. Your question has nothing to do with this case.”

    2. 1. Do you assert that as a matter of law, a photograph being published for the first time, with no earnings history, is for that reason more subject to fair use by third parties than another photograph which has been published multiple times with a robust earnings history?

      Fair use is a factual inquiry, so of course it’s not true “as a matter of law.” But of course the use of something that has no market value is more likely to be fair use than the use of something that does have market value.

      1. DN, could you try to take the question as I presented it, which posited a photograph published for the first time, and thus without a market history. One of the points I am trying to explore is whether folks here suppose that licensing terms respecting an initial publication of an image ought to be regarded as useful for interpreting copyright. As a matter of fact, that would be so unreliable a test as to amount to a factual mistake.

        You seem to infer that I posited an image with no market value, which I did not. It may prove advisable to publish without recompense an image which you estimate already has outstanding market value. Publishing such an image in the right venue, even without getting paid to do so, could be a tactic to develop that value by giving the image the right exposure to a potential market, and also to gather feedback useful for marketing. That can be true either for artistic images, or for photo stock images.

        Also, happenstance plays a role with which the law ought not interfere. For instance, a so-so image of some young person, taken before that person later becomes a celebrity, could languish unused for many years, and then track the growing fame of its subject to become much-sought-after, and considerably valuable. Or, outstanding images made by a photographer later, can boost the value of more-ordinary images the same photographer made previously. Prints of an artistic image, signed by its unknown and disregarded creator, could for years be for sale for peanuts. Then, after an upsurge in the artist’s reputation decades later, become worth thousands.

        Given those vagaries, what possible valid inference do you suppose anyone can draw from licensing history, about whether a just-made image ought to be available to anyone without regard to copyright? Fair use is a fine concept, and I do not contest it. I deny the logical relevance of a meager early sales history to determine fair use, or to determine anything that would impair copyright. Image values develop over time. An instantaneous sample at the outset of a long term of copyright ought to be regarded as meaningless and useless.

        My interpretation of the present case has been that a judge who had little idea what he was talking about, thought a lawyer could get a valid appraisal of the worth of a recently-made image by knowing its brief licensing history, and then apply that actually-useless information somehow to the question of fair use. It seems the lawyers on both sides of the case were little better informed than the judge, and so the premises and the arguments were bungled by all. I am not really interested in the outcome of this case, except insofar as it is a straw in the wind about what to expect for interpretations of copyright for photographs.

        If you have any critique which respects the general premises I focus on, or regarding my reasoning about those, I would be pleased to hear it.

        If you want to tell me the law is now interpreted in defiance of that reasoning, and in defiance as well of all the trade customs and legal decisions which for decades had been predicated on that kind of reasoning, you might be wasting your time to reply. Unless you can show me you have considerable knowledge of the photography-related subject matter, I would be reluctant to rely on what you might have to say.

        1. I get you think you are trying to approach a substantive issue. Your question has nothing to do with this case.

          (1) The judge didn’t suggest anything to suggest a never-before-posted photo is more likely to be “fair use” than another photo. He only said that licensing agreements if the exist (which in this case, the defendant had said they do) would be useful in the case.

          (2) The photographer is suing Baur group for publishing photos in March. These had previously been posted on a models Instagram in January. It at least appears he is not suing the model for the her initial posting in January. (I admit he might also be doing that. But it is not mentioned in the case against Baure).

          Neither the judge nor anyone here says the fact that a photo has never been published makes it fall outside copyright. (It doesn’t. ) No one says the fact a photo has never been fair use, by itself, makes publishing it “fair use”. (It doesn’t.)

          Whether the photo has ever been published would be information that is useful to judging a case. That fact that it has never been published before might turn out to be useful to the copyright owner in demonstrating very high damages damages and possibly no fair use or it might turn out to be useful to the plaintiff in demonstrating almost no damages and possibly fair use. Who it is useful to will depend on other factors.

          But in either case, the defense has a right to the information and the plaintiff refusing to provide the information during discovery is wrong. That plaintiff should be penalized for failing to properly divulge relevant information during discovery.

        2. You seem to infer that I posited an image with no market value, which I did not.

          I did not infer that. In inferred that you posited something with no established market value.

          My interpretation of the present case has been that a judge who had little idea what he was talking about,

          Unfortunately, you are a person with no idea what he’s talking about. As several people above tried to explain, but you angrily ignored, the judge has made no ruling whatsoever about the merits of the case, the value of the photo, or the fair use defense. The only thing the judge has said is that parties in a case have to turn over discovery according to the Federal Rules of Civil Procedure. The photographer argued that he’s entitled to damages based on the value of the photos. The defense is entitled to discovery related to the value of the photos. How much they’ve actually been licensed for is relevant to their value.

          There is nothing unique legally or economically about photographs, no matter how special you think you are because you know what an f-stop is. (I think that’s a photography term.) And, no, the market value of a photo (or anything else) is not determined by pure unbridled speculation about future events. I took a bunch of photos and video of my son at his U9 soccer game yesterday. If he becomes a World Cup caliber player (spoiler alert: no) then those could have significant value. That theoretical possibility has nothing to do with their actual market value now, and someone who used those pictures without my permission would not be forced to disprove that hypothetical to prevail on a fair use defense.

  6. This is the same lawyer who was profiled here a few weeks ago, complaining about the label “copyright troll” applied to him. I think he’s right that he’s not a copyright troll — that term generally would not be applied to the lawyers, but the copyright owners — but that of course does not mean that he isn’t abusing the legal system. (An issue about which I take no position, because I don’t know enough about the guy. The mere fact that a lawyer specializing in copyright filed lots of copyright lawsuits certainly isn’t enough. But his tactics may merit it.)

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