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.
Filed Under: copyright, copyright troll, exclusive license, rachel dolezal, richard liebowitz, robert tauber, social media
Companies: enttech media, paper magazine, polaris images
