Copyright Troll Richard Liebowitz Drops Case After Suing On Behalf Of The Wrong Party And Trying To Swap Plaintiffs
from the why-do-people-still-hire-this-guy? dept
Why oh why do people still hire copyright troll Richard Liebowitz? There are just so many stories of him messing up cases and getting scolded by judges, you'd think that people would think twice. But then, yet another story of Liebowitz messing up comes to light. The latest is a real doozy. It involves the somewhat controversial person, Rachel Dolezal (who now goes by Nkechi Amare Diallo -- a name that has spun up plenty of controversy itself) , who made a lot of news five or so years ago when it was exposed that, despite calling herself a black woman for years, she was actually white. Last summer, she made some news again, when she declared on Instagram and Twitter that she was bisexual. I'm not entirely sure I understand why this was newsworthy, but some publications ran with it -- including Paper Magazine (though, it appears the story has since been deleted).
Either way, in the fall, an operation called Polaris Images, represented by Liebowitz, sued Paper Mag's parent company, Enttech Media, because it had posted an image of Dolezal's Instagram post referenced above. According to the lawsuit, Dolezal had provided Polaris with an "exclusive licensing agreement" concerning various images of herself -- including the one in the Instagram post. Paper Magazine's lawyer, Robert Tauler, pointed out (among other things) that Polaris couldn't possibly be the exclusive licensee, because in posting the image to Instagram, Dolezal had granted a non-exclusive license to Instagram as well, and if you've granted a license to more than one party, you can't claim one is "exclusive" any more.
Tauler also pointed out that the copyright in the image wasn't registered until a month after the article in question, and pointed out that it's almost certainly fair use for a news organization to show a social media post in a news story about that social media post. Liebowitz, in typical Liebowitz fashion, responded that "the fair use defense is borderline frivolous." No, Richard, it's not.
But, you know what is frivolous? Trying to swap plaintiffs midstream. But that's what Liebowitz tried to do.
Apparently the issue of whether or not Polaris actually had the right to sue over this image made Liebowitz realize that the case was in trouble. So he filed an "amended" complaint, but part of the "amendment" was to completely drop the plaintiff Polaris from the complaint and just swap in Dolezal as the new plaintiff. That... is not how things are done. Paper Mag's lawyer sent quite a letter to the court highlighting the many, many, many problems of such a filing:
At the December 19, 2019 pre-motion conference regarding Plaintiff’s motion to dismiss Polaris’ original Complaint (the “Polaris Complaint”), the Court granted leave to Polaris to amend its Complaint. However, Polaris did not amend its Complaint. Instead, Polaris removed itself as plaintiff and added non-party Dolezal as the Plaintiff, alleging new facts that contradict the Polaris Complaint and the representations of counsel at the December 19, 2019 pre-motion conference, namely that Dolezal, not Polaris, has standing to sue....
[....]
As Plaintiff’s counsel made clear at the December 19th hearing, “Polaris and Ms. Dolezal entered into an exclusive licensing agreement on December 15th of 2017, and pursuant to that agreement any photographs that Ms. Dolezal provides to Polaris are subject to an exclusive license. So, what that means is that Polaris has the exclusive right to distribute or display those images to third parties.” (Transcript, p. 3 (Exhibit A)). Polaris’ counsel further articulated his knowledge of the law at the December 19th hearing, stating “if we [Polaris] have an exclusive license, we have standing to sue. That’s the statute.” (Transcript, Ex. A, p. 12). Despite the foregoing, the Amended Complaint not only abandons Polaris’ theory of the case, it abandons Polaris altogether.
As Tauler points out, you can't just swap in a brand new plaintiff like that either:
First, the Dolezal Complaint runs afoul of FRCP 15 which provides that only a party may amend a pleading. Thus, Dolezal did not have the right to amend the Polaris Complaint. Second, the Dolezal Complaint violates FRCP 21 requiring leave of Court. See Spencer v. Dixon, 290 F. Supp. 531, 535 (W.D. La. 1968)(“Attempt to add additional parties fails where Amended Complaint contains no request for any order to add additional parties because Rule 21 of the Federal Rules of Civil Procedure requires that additional parties may be added or dropped from an action only on motion of any party and order of the court.”). Third, a non-party may not participate in an action without filing a formal motion to intervene. See Spangler v. Pasadena City Bd. Of Ed., 552 F.2d 1326, 1329 (9th Cir. 1977). See Recht v. Metro Goldwyn Mayer Studio, Inc., No. CV 0806612 RGKMANX, 2008 WL 11409588, at *2 (C.D. Cal. Nov. 17, 2008)(Striking amended complaint as an improper attempt by a non-party to intervene in the action where a non-party amended a pleading.). Finally, Polaris failed to dismiss its case prior to filing the Dolezal Complaint. Dolezal should have filed a new case when Polaris dismissed itself as the sole Plaintiff.
This doesn't even get into the question of how Liebowitz claiming to represent both Polaris and Dolezal could create some conflict of interest.
Perhaps recognizing that he was about to get into serious trouble yet again, Liebowitz did one of the things he's best at: turning tail and running. He sent a petulant angry letter saying that he'll dismiss the case "in order to avoid unnecessary motion practice" but still wanting to make sure he got in the last, nonsensical word. First, he claims that despite first claiming that Polaris had sole standing to sue, he later recognized he made a mistake, and therefore decided to swap in the new plaintiff:
Defendant argues that Dolezal does not have standing to sue because Plaintiff’s counsel previously represented that Polaris is the exclusive licensee to the Photograph at issue. We respectfully aver that subsequent to the first pre-motion conference, we re-analyzed Polaris’ exclusive agreement with Dolezal in light of prevailing caselaw and determined in good faith that it was Dolezal, rather than Polaris, who has standing to sue. The issue ultimately comes down to one of contractual interpretation and the timing of when Dolezal transmitted her Photograph to Polaris. It is a complex issue, and presents a question of first impression, so we have attempted to navigate the issue based on our good faith application of the law to the facts.
Richard, Richard, Richard. It is not a particularly complex issue. You fucked up. Again.
Either way, Tauler has now announced that he's going to seek attorneys fees for Paper Magazine, and notes that he expects to "challenge" Liebowitz's silly claim that this was all "just a misunderstanding."
Either way, this is yet another "misunderstanding" to throw on Liebowitz's ever growing pile of bad lawyering. Note that this all happened just weeks after Liebowitz had to bring a family friend with him to court to tell the judge that young Richard was too inexperienced to be handling cases like this and that he'd promised to get help from more experienced lawyers. By all appearances, it does not seem that Richard has followed through on that.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, copyright troll, exclusive license, rachel dolezal, richard liebowitz, robert tauber, social media
Companies: enttech media, paper magazine, polaris images
Reader Comments
Subscribe: RSS
View by: Time | Thread
They keep hiring him because he promises them money, his names in the media all the time, but no one wants to read ALL those words.
And well his clients fame clock was honestly at 30 minutes & she had to do 3 stupid things to try and reset it. Go big or go home.
Enjoy the fines.
[ link to this | view in chronology ]
copyright lawyer — noun — a person who believes “digging up” is a viable solution to getting out of a hole into which they put themselves
[ link to this | view in chronology ]
It might have been his client that was in the wrong. People without a valid case have the right to hire a lawyer too.
[ link to this | view in chronology ]
Re: Nice try Richard
But they don’t have standing to interfere in an ongoing court case.
[ link to this | view in chronology ]
Re:
A lawyer looking after their interest would tell them that they have no valid case, and refuse to proceed with the case.
[ link to this | view in chronology ]
Re:
True, but one hopes that even (or especially?) if you have a bad case, you'd hire a good lawyer.
[ link to this | view in chronology ]
Good lawyers will tell you when your case is a pile of shit. Bad lawyers will keep shoveling shit onto the pile and call it “fertilizer” in the hopes that no one notices the truth.
[ link to this | view in chronology ]
Re:
Fair point. A better word for my intended meaning would be "competent."
If you know you've got a bad case, hire a lawyer that at least knows how to follow the FRCP.
[ link to this | view in chronology ]
Re:
Who was his client? Polaris or Dolezal? Because as soon as he had both of them as clients for the same lawsuit, he was in serious trouble if he wasn't beforehand.
You can't pick the target and then start swapping in plaintiffs until you find the one that works, especially if the claims made for the first plaintiff imply that the second plaintiff has reason to sue the first because of what you dug up.
That's not how lawyering works.
[ link to this | view in chronology ]
Re:
"People without a valid case have the right to hire a lawyer too."
...and the first thing that lawyer would have said, barring a frightening amount of sheer ineptitude, would have been "You don't have a valid case".
Liebowitz has, by this time, turned all reasonable doubt about his lack of competence into a charred wasteland.
[ link to this | view in chronology ]
Good cases need good lawyers, trash cases need trash lawyers
Why oh why do people still hire copyright troll Richard Liebowitz?
Because the good lawyers tell their clients when they have no case and are just going to waste money looking like fools, and since no-one wants to hear that those with garbage cases fall back to the likes of Richard, who apparently never misses a chance to drag himself and his clients through the mud.
[ link to this | view in chronology ]
"Can you imagine a world without lawyerz?"
https://www.youtube.com/watch?v=HODjrjb32fU
[ link to this | view in chronology ]
Wow, it's almost like Hamilton was a lying sack of shit, who knew?
[ link to this | view in chronology ]
There’s no lie in Liebowitz. Oh . . .
[ link to this | view in chronology ]
Every time I think Liebowitz couldn’t get any dumber…
…he manages to surprise me yet again with his incompetence.
Seriously, IANAL, and I’m certainly not an expert in the Federal Rule of Civil Procedure, but even I know you can’t just swap plaintiffs in a lawsuit like that (well, maybe in a class-action lawsuit or something, but even then probably not without an order explicitly authorizing such a thing).
There’s also the issue with the fact that, well, can Liebowitz even represent Dolezal? I doubt that she hired his firm, not because I think she definitely or even probably wouldn’t, but because Liebowitz is such an idiot that I fully expect that he swapped plaintiffs without Dolezal’s knowledge and/or consent. Plus, she’s not exactly the sort of client that Liebowitz generally represents (those would usually be publishers, journalists, graphic designers, or photographers).
And then there’s the fact that, even though few people actually read much of—if any—of any EULA or Terms & Conditions of any website or software, pretty much everyone with any familiarity with copyright or technology knows that posting a photo on something like Instagram grants the service provider a non-exclusive license for it. If Liebowitz could have been bothered to do any prior research before filing suit, he should have easily discovered that Polaris had no standing to sue.
His incompetence is simply mind-boggling. How is he still a lawyer?
[ link to this | view in chronology ]
And why the exclusive license?
On a side note, why would Dolezal—someone who seems to love the spotlight—grant anyone an exclusive license to one of her personal photos? Did they just hand her a contract and she signed it without fully understanding it?
…Actually, yeah, I could definitely see that. This does beg the question of why Polaris would have her sign a contract granting them an exclusive license to the photo in the first place, but I’m guessing what happened is that they just took the contract they give to professional photographers (where an exclusive license would actually make sense) and had her sign that (even though, again, an exclusive license to a personal photo makes no sense).
Still, I am curious about whether Polaris would have had standing to sue based on the exclusive licensing agreement even if that same photo hadn’t been on Instagram. While nonexclusive licenses can be and often are granted for no cost or other consideration, exclusive licenses are very different. Since an exclusive license puts restrictions upon the licensor, I’m pretty sure that the licensee has to offer something as consideration in exchange, and it doesn’t seem likely that that would be the case here. That makes me wonder whether the exclusive license agreement would even be enforceable in the first place.
Alternatively, perhaps Polaris employs photographers, one or more of whom took photos for payment of Dolezal, and the contract between the parties specified that the ownership of the copyright in any photos would belong to Dolezal (as it is a work-for-hire), who would then grant Polaris an exclusive license to the photos. That still seems weird, but it’s the most sensible explanation I can come up with.
[ link to this | view in chronology ]
Re: Every time I think Liebowitz couldn’t get any dumber…
His incompetence is simply mind-boggling. How is he still a lawyer?
One word: Prenda.
He's still a lawyer because the bar to get disbarred(pun absolutely intended) is so high astronauts on the ISS have to look up to see even a glimmer of it, such that lawyers can do pretty much anything they want and escape any sort of real consequences for their actions.
[ link to this | view in chronology ]
Re: Re: Every time I think Liebowitz couldn’t get any dumber�
"...the bar to get disbarred(pun absolutely intended) is so high astronauts on the ISS have to look up to see even a glimmer of it..."
Rumors have it that NASA managed to get brief glimpses of that bar using the Hubble space telescope. Nothing has been confirmed however.
For a US lawyer to suffer disbarment is basically a tunguska event. It made a big bang and even a century later no one actually knows how it happened.
[ link to this | view in chronology ]
Re: Every time I think Liebowitz couldn’t get any dumber…
You'd think that after the dead grandfather move (which just falls behind on Prenda's "mother-in-law surprise" strategy in the WTF department) Liebowitz would at least watch himself. But nah, he's a member of the church of copyright enforcement. Rule one is that uttering the word "copyright", in his mind, should have caused the judge to get down on all fours and hoist his robe up to be anally probed without lube.
Copyright is brain damage.
[ link to this | view in chronology ]
Re: Re: Every time I think Liebowitz couldn’t get any dumber�
"Rule one is that uttering the word "copyright", in his mind, should have caused the judge to get down on all fours and hoist his robe up to be anally probed without lube."
And to be fair, Liebowitz has ample reason to believe that is the order of things, given that for twenty years judges have done exactly this. It's only recently that judges and courts have dimly started to realize that the one presenting a case ostensibly for a major media company or other, is in reality a failed ambulance chaser with a moral gauge even more broken than that of the sociopath they just sent off for twenty to life without parole.
[ link to this | view in chronology ]
Re:
I've mentioned it before, but it bears repeating - there is a delicious irony in how copyright enforcement thought it could make use of pornography to strong-arm even more settlements based on the assumption that nobody would protest charges, only for the entire scheme to backfire in the worst way possible.
We're unfortunately not quite at the point where judges automatically ask about the quality of a plaintiff's IP address evidence gathering (i.e. "Are you using MarkMonitor or Guardaley? If so you can get the fuck out of my courtroom"), but the trolls are at least helping to rush judges towards this conclusion. You know it's a good day when copyright holders are behooved to say "We're not Prenda, we swear!" as a threadbare defense.
[ link to this | view in chronology ]