More on Copyright Lawyer Richard Liebowitz

The latest district court order dealing with questions surrounding one of Mr. Liebowitz's cases.

|The Volokh Conspiracy |

From Judge Jesse M. Furman in Usherson v. Bandshell Artist Mgmt. (for more on Richard Liebowitz, see these posts):

In the colloquy that followed the evidentiary hearing in this case on January 8, 2020, defense counsel advised the Court that he had reason to believe that Paragraph 9 of the Complaint — which alleges that the photograph at issue in this case (the "Photograph") "was registered with United States Copyright Office and was given Copyright Registration Number VAu 1-080-046" ("Registration 046") — was inaccurate. [Generally speaking, before a copyright lawsuit is filed, the plaintiff must register the copyrighted work. -EV] In response, counsel to Richard Liebowitz and the Liebowitz Law Firm, James Freeman, represented that Paragraph 9 of the Complaint "was based on Mr. Usherson's representation that the photograph in this case was under that copyright registration number"; that counsel had no "reason to doubt the veracity of [Mr. Usherson's] representations"; and that, before filing suit, counsel verified that Mr. Usherson was the claimant for Registration 046, but did not take additional steps to confirm that the Photograph was actually registered. The Court then ordered Plaintiff's counsel to submit a letter-brief "indicating, one, whether the photograph at issue in this case was, in fact, registered with the Copyright Office; and, two, if it was not, why sanctions would not be appropriate based on the allegation in paragraph 9 of the complaint."

Pursuant to the Court's Order, Mr. Liebowitz filed a letter-brief on January 17, 2020. In his letter, Mr. Liebowitz concedes that Paragraph 9 of the Complaint "is inaccurate" because the Photograph "was not registered as part of the 046 Registration." Mr. Liebowitz reports further that "the Photograph was registered in Plaintiff's name under registration number VAu 1-373-272" ("Registration 272"), with an "effective date of August 22, 2019" — more than one month after this lawsuit was filed. Mr. Liebowitz attributes the problem (although it is not clear if the problem to which he refers is the inaccuracy of Paragraph 9 or the failure to register the Photograph in the first instance) to "administrative mistake[] or "clerical error[]" — but he does not elaborate on the nature or source of the purported mistake or error. Ultimately, Mr. Liebowitz contends that the Court cannot impose sanctions "for designating an incorrect copyright registration number in the initial complaint" without "a specific showing of bad faith conduct on [the] part of Mr. Liebowitz, the attorney who signed the complaint, respecting the registration itself."

[Footnote: Mr. Liebowitz also accuses defense counsel of "violat[ing]" the Court's Order by raising the registration issue at the January 8, 2020 hearing, "which was narrowly limited to the question of whether Mr. Liebowitz obtained certain permissions from the Mediator." Not so. Defense counsel did not seek to introduce evidence with respect to the issue during the evidentiary hearing itself, which was — per the Court's earlier Order — "narrowly limited." Instead, as an officer of the Court, he brought it to the Court's attention in the colloquy that followed the evidentiary hearing. That was entirely appropriate.]

Mr. Liebowitz's unsworn letter raises more questions than it answers.

Accordingly, no later than January 31, 2020, Mr. Liebowitz shall file a declaration, sworn under penalty of perjury, specifying: (1) the nature and cause of the "administrative mistake" or "clerical error" to which he refers in his January 17, 2020 letter, including who was responsible for the mistake or error; (2) the factual basis for his inclusion of the allegation set forth in Paragraph 9 of the Complaint and the source of that factual basis, including a detailed description of any investigation into the matter that he conducted prior to the filing of the Complaint; (3) what role, if any, he played in the filing of the application for Registration 272, when and by whom that application was filed, and why the decision to obtain that registration was made (including but not limited to whether it was made due to a realization that the Photograph had not been registered); (4) when Mr. Liebowitz became aware that the Photograph was not registered under Registration 046, how he learned of that fact, and whether Mr. Liebowitz knew on November 14, 2019 (the date of the initial pretrial conference in this matter) that the Photograph had been registered after this lawsuit was commenced; and (5) why Mr. Liebowitz failed to advise the Court and defense counsel that Paragraph 9 of the Complaint was inaccurate until his January 17, 2020 letter.

No later than the same date, Mr. Freeman shall file a declaration, sworn under penalty of perjury, specifying (1) the factual basis for the representations he made at the January 8, 2020 hearing about the registration of the Photograph, including that the allegation in Paragraph 9 of the Complaint was based on information provided to counsel by Mr. Usherson and that counsel had confirmed, prior to filing the Complaint, that Mr. Usherson was the claimant for Registration 046; and (2) any personal knowledge he has of any "administrative mistake" or "clerical error" related to the allegation in Paragraph 9 of the Complaint, and the basis for such knowledge. In addition, no later than the same date, Mr. Usherson shall also file a declaration, both notarized and sworn under penalty of perjury, specifying (1) whether, as of the date this lawsuit was filed, he was aware that the Photograph had not been registered; (2) what, if any, information he provided to Mr. Liebowitz, Mr. Freeman, or any other attorney from the Liebowitz Law Firm about the registration of the Photograph and the date(s) on which he provided such information; and (3) what role, if any, he played in connection with Registration 272, including but not limited to the decision to seek registration and the actual filing of the registration.

Finally, by the same date, Mr. Liebowitz is granted leave (but not required) to file a supplemental letter, not to exceed three pages, addressing the question of whether sanctions should be imposed in light of any new information in the aforementioned declarations. Defense counsel is granted leave (but not required) to file a letter, not to exceed three pages, responding to the declarations and any supplemental letter no later than February 5, 2020.

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  1. OMG….Liebowitz is back again?! For the 701st time? 🙂 I would not be surprised at all if one of the judges on the second circuit pulls out a bat and whacks this guy because he is such a major league pain in the ass. He must be legendary when the judges talk in chambers.

  2. IANAL. How much of this is normal, and ow much is due to judges deciding to nitpick the repeat offender?

    The dual registration bit is somewhat mysterious to me; it seems like it could be serious or just a true clerical slipup. Does this happen in other cases?

    If it does happen, I would guess the proper action would have been to amend the complaint, notify the other parties, etc, as soon as possible, and that the mistake here was to try to paper it over, to pretend it had not happened — like so much else, it’s the coverup that gets people’s dander up.

    If any other lawyer had been caught like this, would judges do anything more than tsk, tsk and warn the lawyer to get his office act together? How much of these actions (sworn letters, notarized letter) are because of Liebowitz’s reputation?

    1. The dual registration bit is somewhat mysterious to me; it seems like it could be serious or just a true clerical slipup. Does this happen in other cases?

      As best I can tell, the problem is that Liebowitz has decided to run a high volume, assembly line practice. It’s a business model some lawyers use, but it’s more well-suited to some types of practices than others. In particular, this type of practice only works well if you don’t have to litigate. A defendant who decides not to quickly settle, but instead to fight the claim, throws major sand into the gears of such a practice. In state court that may not be such a big deal, but in federal court, you can quickly run into trouble.

      You have to be scrupulously sure that you have best practices in place to make sure things are done correctly, and it doesn’t seem like Liebowitz does. So he keeps getting snagged on things like discovery. And once you get a reputation — and he’s got one big time — then everyone is going to scrutinize carefully. And, yes, then judges are much less likely to accept “Oops” as a defense.

      1. Thanks. I hadn’t thought about his assembly-line business model going off the rails when someone fights back. Here’s hoping this emboldens a few more of his targets and he gets disbarred.

        1. Such assembly line models have a history of running off the rails partly because the work gets delegated to paralegals and the proper groundwork is not laid because in order to make a profit the lawyer can’t afford to spend much time on the individual cases. This model is somewhat different from but suffers many of the same defects as the various copyright operations which relay of accusing people of downloading copyrighted material form the Internet. Mr Liebowitz seems to be a slipshod lawyer who does not have a finely tuned operation nor a finely tuned sense of ethics.

      2. I think David’s got almost everything right here.

        I would add one more thing. For whatever reason, Liebowitz doesn’t like to admit when he makes mistakes or gets things wrong or when the facts get ahead of him.

        And that just compounds his troubles. He would still have judges pissed at him, but he would have them a lot less pissed if he was honest and owned up to what really happened in each of these cases, even if it makes him look bad.

  3. Some legal background might be helpful here.

    Under the Copyright Act, rights vest without registration. However, for works created in the U.S., 17 U.S.C. 411 requires that the work be registered with the Copyright Office before suit can be instituted.

    For many years, courts held that this was jurisdictional — meaning, the court lacked jurisdiction without a registration. But the Supreme Court in Reed Elsevier, Inc. v. Muchnick, 559 US 154 (2010) held otherwise. Federal courts’s subject matter jurisdiction over a copyright is not dependent on a registration, it is simply a statutory condition to file a claim.

    I think that means here that had Liebowitz simply alerted the Court and filed an Amended Complaint with the new registration, then all would have been well. Instead it appears he hid it, and then covered his tracks with lies. He is in this judge’s sites, and the end result will not be pretty.

    1. The complaint requested both statutory damages and attorneys’ fees, which are generally not available as remedies if the work was not registered at the time of the infringement. Without that, the plaintiff would have been limited to actual damages, which in this case were pretty obviously $0. So, although this attempted fraud on the court was executed with characteristic ineptitude, it had the potential to substantially affect the case if it had worked.

  4. Compare Liebowitz’s treatment to that of UCONN student “John Doe”. An accusation from the “victim”, a quick kangaroo court judgement, and Doe is tossed right out of college.

    Liebowitz, on the other hand, gets to fuck with judges for years on end with his appalling lies and bad faith conduct. What does it take to get disbarred these days?

    1. In most states you have to steal money and get caught. Very little else.

      1. And sometimes that isn’t enough.

  5. I imagine the hole will only get deeper as defendants start realizing that if they resist and go to court, there’s a decent chance he’ll screw something up, and if he does, his reputation will make judges inclined to award sanctions.

    I imagine, however, that if his business is high-volume enough, only a tiny fraction of the people receiving his demand letters will have heard of him (or perhaps will even go to lawyers), so that he might be able to afford a substantial percentage of resisters.

    He could also learn to do as some other high-volume lawyers do and simply drop matters when resistance is encountered.

    1. He could also learn to do as some other high-volume lawyers do and simply drop matters when resistance is encountered.

      He has tried to do that, but that only works up until the point where judges and opponents catch on.

      For example, in the infamous dead grandfather case, he settled the case before the court’s deadline to produce evidence of the death, but the judge wouldn’t let the matter drop. She retained jurisdiction to address sanctions against him even after that.

  6. Looks like he was sanctioned $10,000 yesterday for this stunt, unless it was in a different case.

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