The “copyright enforcer” is a walking lawsuit factory. He’s also the best hope for photographers to get paid.
—Our story starts with Geno Smith getting punched in the jaw by a teammate, as most good stories about copyright law do. It was August 2015, and the then-quarterback for the New York Jets got clocked in a practice altercation that sent him into surgery and sidelined him for the start of the NFL season. Two days after Smith’s surgery, a photojournalist named Angel Chevrestt spotted the shirtless, puffy-cheeked quarterback standing outside his apartment, tossing a football to a friend. Chevrestt took some pictures and licensed them to the New York Post, where they ran alongside an article titled “Big Mouth! Geno Emerges for First Time Post-Sucker Punch Surgery.”
Later that day, a CBS website ran its own story about Smith’s emergence and used Chevrestt’s photographs as accompanying art. The problem, according to Chevrestt, was that CBS had neither licensed his pictures, obtained his permission to display them, nor credited him as the photographer. CBS television also briefly used Chevrestt’s photos of Smith during its broadcast of a Jets preseason football game later that month, again without credit or explicit permission. Smith, it seems, wasn’t the only one who got sucker-punched.
In the print era, photojournalists did not spend all that much time worrying about copyright infringement, as stealing a news photograph often required more effort than actually licensing the image. But in this screenshot, drag-and-drop, endlessly Instagrammable world, copyright infringement—the unauthorized reproduction, display, and/or distribution of a copyrighted work—has become an inescapable fact of life for working photographers. “Every photographer will have a group of images that gets regularly stolen,” freelance photographer Yunghi Kim told me. And there’s not always much they can do about it. They can contact the infringing outlet to have the image taken down—if, that is, they actually get a response. They can turn the matter over to a lawyer in hopes of obtaining a small settlement—maybe a few times the often-minimal amount the photo would have licensed for—but many copyright lawyers charge by the hour, and their fees may well exceed the settlement amount. “In order to sue for copyright infringement, you’ve got to have enough money to sue for copyright infringement,” said copyright attorney Stephanie Furgang Adwar. Many photographers don’t.
Given these options, most photographers in Chevrestt’s position would have probably responded to the CBS incident with a long sigh and some choice expletives. Instead, Chevrestt decided to make a federal case out of it. On Jan. 23, 2016, Chevrestt sued CBS Broadcasting Inc., CBS Radio Inc., and Sterling Entertainment Enterprises LLC (which also aired his photos in a rebroadcast of the game) in federal court. He asked the court to award him an amount equivalent to actual damages and the defendants’ profits as a result of the alleged infringement—amounts that can be difficult to prove—or, alternatively, statutory damages of up to $150,000 per work infringed. Chevrestt had two attorneys in the case, one of whom was Richard Liebowitz of the Liebowitz Law Firm PLLC, a brand-new practice out of Valley Stream, Long Island. Liebowitz was a recent Hofstra Law grad who had not even been admitted to the New York State Bar at the time Smith got punched in the jaw. The Chevrestt case, which settled out of court for an undisclosed sum, was the first lawsuit that the young attorney had filed in federal court. It would not be his last.
For media companies and their lawyers, Jan. 23, 2016, is akin to the date that Skynet gained sentience. Since then, Richard Liebowitz of the Liebowitz Law Firm PLLC has become the scourge of the media industry, the shame of many in the copyright bar, and the salvation of the underpaid photographer. In the past 2½ years, Liebowitz has filed more than 600 federal lawsuits on behalf of photographers who believe their copyrights have been infringed by entities that have used their pictures without license or permission. That number averages out to roughly five lawsuits per week—or, if you prefer, one lawsuit every single weekday.
“The sheer volume of suits that that firm has filed is, I think, certainly unprecedented,” said media attorney Nathan Siegel. (Siegel has advised Slate on legal matters in the past.) Liebowitz sues regardless of whether the original photograph would have licensed for $12, $1,200, or $1.20. He sues media companies of all sizes—including Condé Nast, Hearst, Time Inc., Univision, Forbes, Barstool Sports, Breitbart News, Business Insider, Inside Edition, Zagat, Rolling Stone, the Daily Beast, the Daily Caller, the Daily Dot, the Daily Voice, the Village Voice, NBC, ABC, CBS, CNN, Fox News, Vox Media, Cox Media, Uproxx Media, and, yes, The Slate Group—and in all seasons. (He filed six lawsuits on Thanksgiving 2017 alone.) In the first three quarters of 2017, according to Law360, he was the most litigious plaintiff’s copyright lawyer in the country, by far.
Liebowitz works on contingency and does a volume business, both of which are unusual approaches for a copyright attorney. His escalation tactics have unnerved his media-industry targets, who have grown accustomed to amicably resolving minor infringement cases long before a lawsuit is filed. “His whole scheme seems to be: He throws out a demand of something between $25,000 or $30,000 to start, and basically is negotiating down from there,” said one attorney who has faced Liebowitz. My sources for this story were reluctant to cite specific settlement amounts, which makes it impossible to say exactly how much money Liebowitz has won for his clients—and for himself. But given the number of lawsuits he has filed and settled, the total amount is likely in the millions, and interviews suggest that he routinely achieves settlements that are worth hundreds of times more than the small sums the relevant photographs would have licensed for in the first place. (“None of the photos have value to them. That’s not a knock on his clients. That’s unfortunately the nature of news photos,” said one attorney, noting that the huge number of news photographs taken and distributed every single day ends up depressing the market value of individual images.)
Key to Liebowitz’s strategy is the pursuit of statutory damages. Under the Copyright Act of 1976, federal plaintiffs can be awarded statutory damages if they can prove “willful” infringement, a term that is not explicitly defined in the text of the bill. (“What is willful infringement? It’s what the courts say it is,” explained Adwar. Welcome to the wonderfully vague world of copyright law!) If a plaintiff had registered the work in question with the Copyright Office before the infringement occurred or up to three months after the work was initially published, then he or she can sue for statutory damages, which can be as high as $150,000 per work infringed. That’s a pretty hefty potential fine for the unauthorized use of a photograph that, if it had been licensed prior to use, might not have earned the photographer enough for a crosstown taxi.
“Photographers are basically small businesses. They’re little men. But you have this powerful tool, which is copyright law,” said Kim, the freelance photographer. The question that copyright attorneys, media executives, and federal judges have been asking themselves for 2½ years is this: Is Richard Liebowitz wielding that tool responsibly? “He offers [his clients] nirvana, basically. He essentially offers them: I will sue for you, I don’t care how innocuous the infringement, I don’t care how innocuous the photograph, I will bring that lawsuit for you and get you money,” said attorney Kenneth Norwick. And the law allows him to do it. So is Liebowitz gaming the system by filing hundreds of “strike suits” to compel quick settlements? Or is he an avenging angel for photographers who have seen their livelihoods fade in the internet age? “They can call Richard Liebowitz a troll,” said Kim. “Better to be a troll than a thief.”
To understand why Liebowitz is so despised, you have to understand how editorial operations work in 2018. Pretty much every article you read online features some sort of image at the top of the page. While the most respectable online publications have subscriptions to photo agencies that house a constantly updated database of news images—Slate uses Getty Images and Reuters—not all outlets do, and some that do now didn’t always. (Some publications have literal decades worth of online archives, which means that there are decades worth of variably sourced editorial images for an industrious lawyer to scrutinize and possibly monetize.) With editorial budgets declining and publications under constant pressure to “do more with less,” it is easy to see how a blogger working in haste and on deadline might grab and publish a picture from the internet that has not been properly licensed or attributed, or might run a photograph that had been provided by a freelancer or a story subject, only to later find out that the provider did not own the rights to that image. “For the most part, these are mistakes,” said one attorney. “Liebowitz is trying to exploit mistakes and leverage them into windfalls. … Some intern grabs a photo, doesn’t follow procedure, doesn’t clear it, and you wind up with a suit from Liebowitz.” Many editors’ lawsuit-related stress levels have spiked since February, when Judge Katherine Forrest of the Southern District of New York found that embedding a tweet that contains an image into a news article—a very, very common practice in online journalism—could constitute a violation of the photographer’s “exclusive display right,” presumably opening up a whole new world of clients for Liebowitz.
In other words, Liebowitz has identified one of the media industry’s most vulnerable spots—and has been hitting that spot relentlessly. In the pre-Liebowitz era, and still today in other law firms, copyright lawyers handling cases of relatively low-value infringements would first approach media companies in the hope of coming to an amicable settlement. This step was taken before lawsuits were even discussed or filed, and the cases only proceeded to court if preliminary negotiations failed. “It certainly is common for people who are interested in trying to settle a case to contact the opposing party beforehand and see if it’s possible to resolve. That can often be more efficient for everybody,” said Siegel. “The Liebowitz firm does not tend to do that.”
By suing first and negotiating later—a frequent Liebowitz stratagem—Liebowitz positions himself to obtain richer settlements than he might have otherwise received, from defendants hoping to avoid the time and expense of prolonged litigation. “He understands brilliantly that the defendants he sues have to pay lawyers, and they have to pay lawyers no matter how meritorious or unmeritorious the claim is,” said Norwick. “He says, either directly or indirectly, first to the media company and then to the media company’s lawyer: ‘Look, it’s gonna cost you $50,000, $100,000 just to pay your lawyers. Just pay me $30,000,’ even if the photograph in question would have licensed for $100 or less. And that argument has a lot of force. He’s got that figured out.”
Quotes from the piece describing Richard Liebowitz and his lawsuits.
Animation by Slate. Photo by Mark Wilson/Getty Images.
Still, it’s annoying—and at times worse than that. Soon after Liebowitz appeared on the scene, attorney Robert Penchina, who has represented several media companies sued by Liebowitz, had a ministroke. “I half-jokingly blamed it on Richard. Sort of just dealing with him made me nuts,” Penchina said. “I told that to him at the time. I said, ‘Richard, you’re a nice enough guy, but you made me sick.’ ” In conversation and in court documents, attorneys who have tangled with Liebowitz have vented over what they deem his chronic overvaluation of his clients’ claims, his habit of dodging discovery obligations, his disregard for the admittedly vague concept of fair use—which, basically, is the doctrine that makes it OK for journalists and commentators to quote limited portions of copyrighted works without first asking permission. (“Fair use is an area that, so far as Richard is concerned, apparently doesn’t exist,” one attorney told me.) Occasionally, his opponents’ filings bubble with palpable frustration over his tactics and philosophy: “This conduct is not only intolerable, it is flagrantly contumnacious” (Ward v. Sinovision), “complete and utter contempt for the judicial process” (Sands v. Complex Media), “Mr. Liebowitz will continue to abuse the judicial system as long as he is allowed to get away with it” (Sands v. Complex Media). He has even indirectly incurred the wrath of celebrities Kendall and Kylie Jenner, by suing a company with which they’re affiliated for selling a T-shirt featuring his client’s photograph of Tupac Shakur; the attorney for the defense asked the court to sanction Liebowitz for his “unreasonable and vexatious conduct” in the “frivolous matter.” (The motion is still pending.)
The judges of New York’s Southern District—Liebowitz’s favorite venue by far—have been almost as censorious. In a June memorandum opinion granting ABC, Yahoo, NBC, and Coed Media Group the right to recover the attorneys’ fees they incurred while defending “this frivolous litigation” in what he deemed an obvious fair-use case, Judge Lewis Kaplan wrote that “There may well be justification for defendants’ implication that these were strike suits, designed to extort settlements from defendants on the basis that defense costs would exceed what plaintiff would accept in settlement.” (Kaplan later ordered the plaintiff to pay the defense $120,000 in legal fees.) In February and March, Judge Denise Cote labeled Liebowitz a “copyright troll,” imposed monetary sanctions, and ordered him to ethics classes.
Liebowitz does not appear to have changed his business model in response to these critiques. Indeed, in the time since Cote first labeled him a troll, he has filed 52 new lawsuits in the Southern District of New York alone. The other lawyers I spoke to for this story—many of whom represent both plaintiffs and defendants—have been attached to a mere handful of suits in the same venue. “I can tell you over my 28 years in handling copyright infringement litigation, if I brought 20 cases [in total]—and I don’t even think it’s been that much—it’s a lot,” said Stephanie Furgang Adwar. Liebowitz has brought 20 federal copyright cases since April 19.
Liebowitz strongly disputes the “copyright troll” moniker and all of its imputations. “We are here enforcing the rights of photographers that own their own intellectual property. And photographers have a right. And the only tool—the only way—in terms of enforcing their right in a judiciary system is by filing in federal courts,” he told me. “The photographers, they own their work, and people can’t freely take their work without permission. Or else there are consequences.”
Liebowitz’s camera of choice is a Canon Rebel series camera, which he brings with him when he travels for business. He’s been taking pictures since he was a teenager, and as an undergrad at the University of Pennsylvania, he won an award for a photo of a Joe Biden rally titled “Biden for President.” Another of his college photos, “Horses Enjoy Their Meal in the Countryside,” was featured in a student magazine. “All my friends are photographers, or most of them,” he told me when we talked on the phone (he declined to meet in person), and the stories they told him of outlets stealing their work gave him the idea to open his own business devoted to pursuing copyright claims on their behalf.
Twenty-nine years old and raised in Long Island, Liebowitz appears deeply tanned in photographs, with a voluminously gelled hairdo, long sideburns, and a broad, toothy smile, like a nightclub entertainer who just happens to practice law on the side. His father, Ted Liebowitz, is a serial entrepreneur and Broadway investor who founded the Liebowitz Entrepreneurship Program at Brooklyn College, his alma mater. Before Richard Liebowitz was a lawyer, he had a business selling maps to celebrities’ houses in New York City. He also maintained a now-defunct website, richardliebowitzcollection.com, that cataloged and displayed his own photographs. “I always wanted to be an entrepreneur, I always wanted to start my own business,” said Liebowitz. “My passions for photography and law and business basically inspired me to start my own law firm, and fulfill this need.”
Quotes from the piece describing the hardships of being a photojournalist.
Animation by Slate. Photo by Eric Gaillard/Reuters.
His interest in photography first developed when, as a teenager, he interned with a New York photographer named Bruce Cotler, who had been college friends with Liebowitz’s father. Cotler, the current president of the New York Press Photographers Association, has had a long career in photojournalism, and he took the teenage Liebowitz on as an apprentice of sorts, letting him tag along with him on weekend gigs. “I traveled with him for many years throughout high school and college, everything from the Nathan’s hot dog contest in Coney Island, to the New York City Marathon, to various parades in New York—the mermaid day parade in Coney Island, which is a lot of fun to shoot, all the fun costumes,” Liebowitz told me. “I got to learn a lot of things traveling with him, from the basics of the camera—how to photograph, lighting—to getting the right shot, framing the shot the way you want it, very uniquely. Just the life of being a photographer, you know?” Liebowitz even wrote a book about his adventures with Cotler, an elusive volume titled Apprentice! Lessons Learned on the Frontlines of Life.
It was Cotler’s mentorship that led Liebowitz to join the New York Press Photographers Association as a teenager, and it was the relationships he forged in the photography community that helped him eventually launch his practice. “We’d talk amongst other press photographers [about] how stuff is being stolen,” Cotler remembered. “And [Liebowitz] decided to go to law school. And from there, he’s like: ‘You know, copyright.’ ”
Since 1710, when Parliament enacted the Statute of Anne and gave the world its first formal copyright statute, copyright has served as a production incentive for writers and other creators, a tool to encourage the genesis of useful works of art and scholarship by allowing makers to control reproduction of their work—literally the right to copy—and thus profit from its sale. Statutory copyright has expanded and evolved thanks in large part to the lobbying efforts of the firms that publish and distribute creators’ works: book publishers, film studios, record labels, and other entities that have presided over “the scuttling crabwise movement of copyright into any and all other media and forms,” as the longtime Yale Law professor Ralph S. Brown Jr. wrote in 1984. In the internet age, expansive copyright statutes have famously been wielded against individual infringers by firms and trade groups, such as the Recording Industry Association of America, which in 2003 filed 261 lawsuits against individuals who had allegedly pirated music using file-sharing programs.
Liebowitz has taken this idea—deterrence via aggressive litigation—and flipped it on its ear by using it on behalf of individuals to sue larger corporations. “The photographers that took me under their wing when I was young—I want to give back to them. And, by giving back, really helping them with the problem of copyright infringement,” said Liebowitz. This has been his goal since before he founded his firm. “He had, in my memory, even more pronounced sideburns [back then]. And he looked like a cut-rate Logan from X-Men,” one New York copyright litigator remembered. “He presented me with a card. … He must have been setting up shop. The card had on it the name of the firm: ‘Copyright Enforcers.’ ” The name didn’t stick, but the mentality did.
Liebowitz’s most frequent plaintiff is a New York–based photographer named Steve Sands, who takes pictures of celebrities. “It has been noted—by Hearst, specifically, in their motion to dismiss, and [by] Dan Abrams—that I’m a serial litigant. Like me suing for my rights of people infringing my images, there’s something wrong with me,” Sands told me, affecting a mock-scolding tone. “ ‘How dare me sue Hearst and everybody else who steals my images without paying me? How dare me?’ ”
As of early May, according to the PACER electronic records system, Liebowitz has represented Sands in federal court 42 times, in cases against such media companies as Time Inc., Vox Media, Viacom International, and the Graham Media Group (a subsidiary of Graham Holdings, which owns Slate). Docket reports and court records indicate that Sands has reached a settlement in more than three-fifths of those cases, not counting the ones that are still ongoing. “They’re trying to put photographers like me out of business. All across the board,” said Sands of his opponents. “And then, they don’t want to buy our pictures, but they’ll steal them.”
In a deposition in the ongoing case of Sands v. Complex Media Inc., in which Sands alleges that the website Collider used a photo he took of the actors Jesse Eisenberg and Kristen Stewart without his permission, Collider’s editor in chief acknowledged that he does not have a budget for photographs and that out of more than 3,000 photographs he has posted alongside online articles over the past 12 years, he has “paid someone once or twice to use a photograph.”
Judging from the documents filed in the case, Sands v. Complex Media has erupted into open hostility between the two parties. In a recent memorandum in support of the defense’s motion for dismissal, attorney Edward Rosenthal wrote that Sands
filed the case against Complex (one of more than 40 copyright claims Sands has filed in this District in the past two years) thinking that Complex would make a quick settlement payment rather than spend the time and money to defend itself. Complex, however, refuses to roll over, and has put Plaintiff to the task of actually proving his entitlement to relief and his right to damages. Plaintiff has failed to meet that burden. He has repeatedly flouted the rules of discovery, failing or refusing to produce the documents that are necessary for him to establish his claim. His complaint must be dismissed.
This friction seems to just steel Sands’ resolve. “It’s a mission I’m on now,” Sands told me. “Because photographers are treated like shit. We’re treated like shit.”
No one denies this point, at least. Since at least 2013, when the Chicago Sun-Times infamously laid off all of its staff photographers, it has been clear that professional photojournalists are an endangered species in a world where everyone has a camera phone and downloading a high-quality photo off the internet takes approximately five seconds. “I don’t know very many people who have staff jobs at newspapers any more. And that was the most reliable way to do this,” said Memphis-based freelance photographer Andrea Morales, who had once hoped to ascend the traditional journalistic employment ladder, starting at a small publication and working up to bigger ones. “And that has just been decimated. There’s such few reliable staff jobs that actually value photojournalists for what they can contribute,” she said. “It’s gotten even more amplified and exaggerated and demoralizing as newspapers and newsrooms shrink and lose that energy.” So freelancers survive by licensing their images directly to clients and, more often, working for publications and image agencies on “day rate” deals that provide a flat daily fee—a few hundred bucks is standard, though some clients pay more—in exchange for all the pictures the photographer takes that day.
In late March, the New York Press Club hosted a very depressing panel discussion about the future of photojournalism in the citizen-journalist era. The six photojournalists who participated had more than 100 years of experience between them. Their insights presented a gloomy picture of the state of the professional news photographer. “Your citizen journalists: They’re not a threat to me,” said Todd Maisel, a longtime photographer for the New York Daily News. “The real threat is the industry itself.
“The industry stinks! It just really does stink,” Maisel continued, and most of his fellow panelists concurred. “When I started out shooting, I was getting day rates that were decent,” remembered Cotler, who also sat on the panel. “Now, if you go to a red carpet event, and you’re shooting for an agency? You’re getting checks for 38 cents.”
I asked Steve Sands if photographers worried that suing media outlets might imperil their chances of future employment with those outlets. “They have no employment! None of us are employed!” Sands replied. “There are 55-year-old photographers that are living with their 80-year-old parents. And I’m not joking.” Given this bleak situation, it’s not surprising that Liebowitz’s clients view him as something of a hero. “Richard, last year, got a big settlement for me on a picture that Univision—you know, Channel 41, the Spanish station—they stole it and used it 11 times,” Cotler told me. “There are a bunch of photographers out there who, I think, are making more money on infringements than they are on shooting pictures.”
In her critical February opinion, Judge Cote characterized a copyright troll as someone who is “more focused on the business of litigation than on selling a product or service or licensing their copyrights.” This is the issue, this fraught and opportunistic practice of making copyright litigation a profit center in itself, as opposed to a tool to protect a creator’s ability to profit from the sale or license of his work. If filing and quickly settling lawsuits is how you earn money for yourself and your clients, and if the expense of litigation can lead a defendant to settle a claim regardless of its merit, then you are incentivized to file as many lawsuits as possible—say, 640 or so in less than 2½ years. “If people are using photographers’ work without their permission, then they should stop, and they should pay a reasonable royalty,” said Matthew Sag, a law professor at Loyola University Chicago. “But if the reasonable royalty is $20, then it’s hard to see how dragging someone into federal court could ever be worthwhile.”
“I think in part the media has made an opportunity for him—that he couldn’t exist if people didn’t keep making mistakes,” said one copyright litigator who has faced off against Liebowitz. “The problem is that he’s not then looking for fair compensation for the photo. He’s looking to exploit the statutory damage scale to extract huge numbers for things that sometimes license literally for pennies.”
In October, for example, Liebowitz filed suit on behalf of a photographer named Paul Steeger, whose photograph of a leaf on water had allegedly been used without permission on the website of a small New York cleaning company called JMS Cleaning Services. Steeger asked for “statutory damages of $150,000 per work infringed.” Comparable photographs of leaves on water currently license for $12 apiece on the stock photography website iStockphoto.com.
JMS Cleaning Services—a small business that claimed that an adverse outcome in the case might send it into bankruptcy—should have just licensed the photo in the first place. But, even so, the amount that Steeger sought in the case seemed wildly disproportionate to the actual loss he suffered. (Stephanie Furgang Adwar, who represented JMS in the case, argued in a letter to the court that the copyright registration had been filed three years after the alleged infringement occurred, thus “eliminating the availability of statutory damages or attorneys’ fees.” The case settled nevertheless, for an undisclosed sum.) “It’s perfectly OK to sue for infringement. It’s perfectly OK to negotiate settlements,” attorney Kenneth Norwick observed. “But, in my view, it’s not OK to demand $30,000 for a hundred-dollar case.”
The tactic also doesn’t always work. Take, for instance, Pereira v. Kendall Jenner Inc., the case involving Kendall and Kylie Jenner and a T-shirt featuring a photograph of Tupac Shakur, the Notorious B.I.G., and Redman. An email exchange that was subsequently entered into the public record offers a window into Liebowitz’s negotiation habits. “[Our] client’s gross profits from the sale of the one shirt were $89.69,” Jeffrey Kobulnick, a lawyer for the defense, wrote to Liebowitz on Sept. 13. Later that day, Liebowitz responded: “I spoke with my client and to avoid the back and forth negotiating he would like to cut to the chase. If your client will offer $25,000 he will accept it right away.”
“The reality is that the total amount of damages your client could ever conceivably recover in this case is less than $100. I offered you $100 to settle this case now,” Kobulnick wrote on Sept. 18. “When I pointed all of this out to you during our call, you asked if we would be willing to put our client through deposition and/or trial testimony rather than accept your demand of $25,000 to settle the case. As the total maximum liability in this case is less than $100, it is objectively unreasonable (1) for you to demand $25,000, and (2) for you to continue litigating this case given the de minimis damages, particularly when I have already offered you $100 to settle this case. Clearly, you are trying to extort an unreasonably high settlement from our client by insinuating that you will make this litigation unnecessarily burdensome on our client.”
The two parties resumed negotiations in December. “Can you please come back with a reasonable counter offer so I can bring it back to my client?” Liebowitz wrote to Kobulnick.
“I already did, several months ago. That offer still stands,” wrote Kobulnick.
“What was the offer?” asked Liebowitz.
“We offered $100, which is more than your client is entitled to under the statute. I realize this is far less than you were hoping for, but the reality is that it is very reasonable under the circumstances,” said Kobulnick.
“Okay,” Liebowitz replied, “I spoke with my client and to get to a expedited resolution, I am authorized to come down to $12,500. Please let me know.” Less than one month later, Liebowitz filed to dismiss the case without prejudice. Kobulnick is now asking the court to make Pereira and Liebowitz reimburse his clients their attorney’s fees and costs. Liebowitz, for his part, has refiled the case in the Central District of California. Try, try again!
2018 has been a year of growing pains for the Liebowitz Law Firm PLLC. The firm only filed 64 new cases in the first quarter of 2018, as opposed to the 97 new cases it filed in Q1 2017. Liebowitz has been blasted by Judge Cote and ordered to ethics classes. But these setbacks, while perhaps embarrassing, have not been prohibitive. “Right now, we [employ] approximately 17 people, and we are growing,” Liebowitz told me. (Many of those employees are back-end staffers, not attorneys.) He continues to represent many of the same photographers he has represented since he founded his firm, and media organizations continue to update their best practices to guard themselves against potential Liebowitz suits.
Everyone with whom I spoke, even those with a hearty dislike for Liebowitz, agreed that there is nothing wrong with a copyright lawyer being actively litigious. It is less Liebowitz’s vocation than his methods and habits—the “boilerplate language” he allegedly uses in his suits; the blasé attitude toward discovery obligations; the aspirational valuations he gives his cases; the “sue first, talk later” mentality—that have made him such a polarizing figure. “There is a standard for filing suits in federal district court. You cannot file a case that is objectively unreasonable under the law,” one attorney told me. “The law is as it is [and] the requirements for filing are as they are to stop parties from clogging up the court with cases that shouldn’t be there in the first place.” The federal courts in which he files are finite entities, and each new Liebowitz case—many filed without first trying to negotiate with parties who may well be ready and willing to settle—consumes the court’s resources and ultimately slows the justice process for everyone else.
Some of Liebowitz’s opponents have accused him of acting in bad faith. It is clear to me that he is also motivated, at least in part, by a sense of moral righteousness, whereby the pursuit of his greater goal—obtaining financial recompense and extracting a measure of retributive justice for photographers who have been marginalized by their own industry—overwhelms other considerations. In our conversation, Liebowitz suggested that the allegations of copyright trolling are made by people who don’t understand his clients’ perspective. “I just don’t feel that they understand that these are hardworking photographers that go out every day and take photographs to showcase to the world,” he said. “And the only way for them to enforce their rights is to pursue these actions against people that are using their work without permission. Or else people will continue doing it.”
Incredible as it might sound, Liebowitz has been a member of the New York State Bar for less than three years. Few copyright attorneys have ever burned so bright so quickly, and even if the Liebowitz Law Firm eventually flames out—the firm’s current approach seems unsustainable, if only because the federal courts may well keep criticizing and sanctioning Liebowitz into compliance or oblivion—others will surely follow the path it has lighted, borrowing the lucrative aspects of Liebowitz’s model while avoiding the ones that have made him notorious. One firm called ImageRights International has already started to pursue a Liebowitz-style strategy. “Get Paid for Your Work,” its website promises, the implication being that, absent a lawsuit, photographers won’t get paid for their work—or, at least, won’t get paid what they deserve.
Over the past 2½ years, Liebowitz has attained boogeyman status in the C-suites of major media organizations around the country. Like the villain in a very boring horror movie featuring content management systems and starring bloggers, his unrelenting litigiousness has inspired great frustration amongst editors and media lawyers fearful that they will be the next to fall victim to the aggravating time-suck known as a Richard Liebowitz lawsuit. And he is probably all of the things his detractors say he is: a troll, an opportunist, a guy on the make taking advantage of the system. He is also a creature of the media industry’s own making, and the best way to stop him and his disciples is for media companies to stop using photographers’ pictures without paying for them—and to minimize the sorts of editorial mistakes borne out of ignorance of or indifference to federal copyright law. “People should realize—and hopefully will continue to realize,” said Liebowitz, “that photographers need to be respected and get paid for their work.”
At that New York Press Club event I attended in late March, the panelists spoke of the differences between a professional photo and an amateur photo; they rattled off some of the iconic events in history that were documented by news photographers and rued the advent of a world that no longer seems to value their trade. “Photojournalism matters, and I think we need a publicity campaign that educates the public and even editors about the importance of quality photojournalism in moving the ball forward in civilization,” suggested freelance sports photographer Staton Rabin. Until that day comes, they have Richard Liebowitz.