I must say, revenge is not only a dish best served cold, but accompanied by a vintage schadenfreude, it is ever so satisfying. Last April, I had the Week From Hell on this site, the worst one up until just this last week with all the technical problems. During that week, Fox News contacted me about my headline saying that Jeannine Pirro was “hammered” (our story was not unique, believe me) then the FBI signed up for the newsletter, which I found intriguing, and then Richard Liebowitz, the infamous copyright troll wrote to shake me down for large sums of money — which is a little like me driving up to an empty garage, thinking it’s Fort Knox, and pointing a squirt gun at the owner and demanding a big pay off. Utterly ludicrous.
Liebowitz is a trust fund baby from Long Island, NY who conceives of himself as the Robin Hood of photographers. Long story short, he takes advantage of a poorly written copyright statute and threatens publishers with huge statutory damages if they don’t pay off his clients, who are professional photographers. His cases all settle out of court and nowhere near for the $150,000 price tag that he demands up front.
In our case, I had used a COVID-19 photograph, taken by his client, Paul Martinka, who sells work sometimes to the New York Post. I used one of his photos, which was not marked as copyrighted material — because it wasn’t — and thought nothing of it. Then I got the shakedown letter on March 31, accompanied by a sample lawsuit.
Liebowitz and I spoke on the phone later that day and that was truly comical. He offered to “settle” with me for $5,000 — for a photograph on a piece that made less than $2.00 in revenues, it was a real dog of a piece for some reason. I told him I didn’t have $5,000 to my name. He said “put it on a credit card.” I said I didn’t have it on a credit card, either.
Then I began to describe my worldly situation to him, i.e., that I didn’t have the proverbial pot to piss in nor the window to throw it out, that I was renting a room in a house in the San Fernando Valley and I was a disabled person who did my blogging as a passion. I told him, “it’s arguable whether the site is worth $5,000, and you want that for one photo?”
So Liebowitz agreed to settle with me for $500, or he would get a judgement from a court in about a year, and that would be for thousands of dollars. I said “send me an invoice” to stall for time and then I began researching the issue. The bottom line is this: there was no copyright in force at that time. His software picked up that I had used the photo on the internet, and he then went and filed for copyright and did his shakedown cruise of my site. So I sent him that information and said, “You’re going to sue me in federal court for copyright infringement of a photograph that has no copyright in force, do I have this right? Go rock it elsewhere, asshole, you’re not getting a nickel.” I received back an email saying that “a lawsuit would be filed immediately.” I wrote back to that, “You want to waste a filing fee, it’s your checkbook.”
I never heard back from the scumbag and I monitored Pacer, which is an electronic database showing court filings and no lawsuit was ever filed against PolitiZoom or myself. Then a week later I got another shakedown from another copyright troll, this time in California, one Matthew Higbee, who demanded $3,500. Here is what I wrote to him.
3. In consideration of the release and other consideration granted herein, RELEASEE will pay to
RELEASOR the sum of $4,500.00 by April 10, 2020. Upon Payment in full, RELEASOR will release
RELEASEE from all copyright claims arising out of the use of the Images through the Effective Date.
—
So you get the idea that these are Saul Goodman-esque shysters out to make a buck by exploiting a poorly written law.
Now here’s the payoff. I found an article yesterday on Richard Liebowitz losing his ability to practice before the Southern District of New York federal court. Inside Radio:
Liebowitz has shown “repeated disregard” of orders from the court, the order states, and has shown “unwillingness to change despite 19 formal sanctions and scores of other admonishments and warnings from judges across the country.”
The order suspends Liebowitz’s ability to practice law before the Southern District Court until a final decision on the charges against him has been made. Before that happens, Liebowitz will have the opportunity to present his defense at a hearing before a Magistrate Judge of the court.
Over the last four years Liebowitz has filed more than 2,000 infringement cases, many of them against media companies.
Described as a “copyright troll lawyer,” his efforts have drawn fierce criticism — and sanctions — from federal judges, including repeated violations of court orders.
The list of radio companies named in infringement lawsuits filed by Liebowitz is a long one and includes Meruelo Media, Midwest Communications, Townsquare Media, Riverfront Media, iHeartMedia, Salem, ESPN, Bonneville, Alpha Media, Cumulus Media, NRG Media, Cox Media Group and others. The suits, which often use identical language, typically involve a radio station or other media company’s alleged unauthorized use of a copyrighted photograph on their website, taken by one of the lawyer’s professional photographer clients. They typically demand $150,000, a jury trial, attorney fees and any other costs.
While the torrent of suits continued in the first half of 2020, even with a raging pandemic, they stopped around mid-year, not long before the Southern District Court’s Committee on Grievances filed charges against him.
Bottom line, if he was trying to shake down somebody in my situation for a paltry $500, in a situation where he had no case whatsoever, because there was no copyright in force, the guy is a lowlife crook, plain and simple. I’m looking to see which media outlets, if any, are going to do a follow up on Liebowitz’ latest development with the Southern District court and I’m going to tell them the story of his interaction with this site. There is nothing legal or moral in the way he treated me, that’s an absolute.
Harlan Ellison was right: living well is the best revenge. Making them eat don’t hurt either. Looks like you got a shot at both here, Ursula!
The guy was unbelievable. It was like the crack of doom. I inadvertently used a photograph — and found out later that I had every right to do so, because it wasn’t copyrighted — and my life was over. You should have heard this guy.
Hell, I can hear him now. That brand of bully, I’m all too familiar with. The ones I dealt with just never figured out how to turn it into a business.
You do not actually have to file a piece with the copyright office and receive a copywrite number for a piece to be considered protected by copyright. Copyright protection is automatic from the moment a work is created, Registration is not required in order to protect your work. If you have not registered your work with the U.S. Copyright Office before the infringement or within the three-month look-back period, you will not be eligible for statutory damages or attorney’s fees. Instead, you will have to prevail in court. The court may award you “actual damages and profits,” which are calculated by examining evidence of your previous licensing history and other factors such as market value and any profits by the infringer that can be attributed to the infringement. Actual damages can be very high, but they must be proved and can also be very low.
I’m sorry you had to go through that, Ursula. As an author and blogger myself, I am painfully aware of situations some authors have gotten into over intellectual property rights, as well as situations were they have been trolled. Not fun. I’m glad you have knowledge of how to fight back. Many newbies would probably pay up. That’s how scammers stay in business.
I spent most of my adult life working in law. I don’t scare that easily.
Go get ’em, Ursula!
Your talking about revenge being a dish best served cold caused my mind for some reason to flash to Star Trek – the Wrath of Khan where he uses it. Since all this went/goes down via the internet I think paraphrasing Khan seems appropriate: Revenge is a dish best served cold. And it gets very cold in CYBER-space!
Here’s hoping this guy’s legal career gets quickly put into the freezer. One of those specially designed ones that can keep even that Covid vaccine that has to be stored at minus 185 safe!
Congrats Ursula!
Did he try to sell you a bridge while he was at it?
I think one of my friends was involved in one of those suits, some years back, peripherally. I don’t know how it came out (not my business), but she had to do a deposition or something.
Is there a secret Roy Cohn School of Law somewhere? With the Donald Trump Chair of Grifting and Memorial Mob Chair of Shakedowns?
Hi Ursula. Glad that you told off the scumbags! I have a small website that is hosted on a free hosting site. It is not there to make money in any form, and being an amateur photographer, only my own photos are used on the site. I do have a large collection of photos gathered over the years from the Internet, mostly from sites that host photos for use as personal PC wallpapers. However, I would never use any of them for any commercial purpose without permission. I am sure that you feel the same.
It’s tragic that this guy has turned this into such a hustle. I would have been happy to pay him a reasonable fee, say $50, even though the piece didn’t make that, just to be a decent person. That wasn’t the issue. The issue was doing a shakedown, period.
I am glad you were able to shut that guy down. It’s terrible how so many people go through life doing crap like this.
Ursula, don’t use photographs without photographers’ permissions. It’s pretty simple. You are leaving yourself open to this kind of harassment. Just because others do, doesn’t mean you should.
I posted this on Facebook.
All I can say is that I love your newsletter and I want to thank you for it. I am also disabled and on a very strict income. You are doing a marvelous job!
Thank you, Marie. Keep dropping by to read.
“which was not marked as copyrighted material — because it wasn’t”
A creator does not have to file a creation in order to hold the copyright on it. Those who create a lot and sell it generally do because it helps should a dispute arise, but it’s not necessary – unless a creator specifically assigns copyright to someone else, the creator continues to hold it until 75 years after he or she dies. One of my duties at the job I worked at for most of the nineties was registering copyright for a house artist – the only house artist actually – it was an art gallery and we not only sold her work but also published it. So I had to bone up. (I even had to secure an ISBN for a book we put together of her published images.)