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 Balkin 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.