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.

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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 ….