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Trending: The New Age of Fighting Copyright Infringement

By David Schonauer   Tuesday June 12, 2018


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It only seems to get worse with copyright infringement.

In May we spotlighted the story  of social media coordinator Max Robinson, who found himself trapped in an apartment building during flooding in Maryland and started documenting what transpired on Twitter. Fox News wanted to use his pictures in exchange for a credit line, and Robinson replied “f**k off.” Can’t get much plainer than that.

But Fox used the pictures anyway.

“The National Press Photographer Association’s General Counsel and photographer advocate Mickey Osterreicher didn’t take kindly to the blatant disregard of a photographer's wishes, noted Allen Murabayashi at the PhotoShelter blog. Osterreicher pointed out that under U.S. Copyright Law 17 U.S. Code § 504, willful infringements can lead to statutory damages up to $150,000 per image.”

As Osterreicher himself  noted recently, photographers seem to have finally had it with copyright infringers. The outrage has been there for a while now, of course — ever since digital technology and the internet made stealing images an everyday event. But, declared, Osterreicher, there has been “a lot of discussion in the legal community” about an uptick in copyright infringement lawsuits involving photographs.

Why? New technology is allowing photographers to easily find copyright and licensing infringements. And a growing number of attorneys have developed business models built upon accepting low-value infringement claims on a contingent fee basis.

Which brings us to attorney Richard Liebowitz, the “walking lawsuit factory” profiled recently at Slate.
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Liebowitz, of the Liebowitz Law Firm PLLC in Valley Stream, Long Island, has over the past two-and-a-half years filed more than 600 federal lawsuits on behalf of photographers who believe their copyrights have been infringed. That number averages out to roughly five lawsuits per week—or, if you prefer, one lawsuit every single weekday, notes Slate, making him the most litigious copyright attorney in the country.

Working on a contingency basis, Liebowitz’s business is based on volume and escalation tactics. One attorney who has faced Liebowitz tells Slate, “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.”

“Photographers are basically small businesses. They’re little men. But you have this powerful tool, which is copyright law,” photographer Yunghi Kim tells Slate. Is Liebowitz wielding the tool responsibly? Or, asks Slate, is he gaming the system by filing hundreds of “strike suits” to compel quick settlements?

Murabayashi notes that Liebowitz reached out to flood and copyright-infringement victim Max Robinson via Twitter, offering him his services. Like others, Murabayashi refers to Liebowitz as a “copyright troll.”

“Better to be a troll than a thief,” says Yunghi Kim at Slate.

At the NPPA, Osterreicher includes some things for photographers to keep in mind if they’re thinking about engaging an attorney for go after copyright infringers. Among them is this caveat:

“Photographers and lawyers favor statutory damages because they can be as high as $30,000 if the infringement was not ‘willful’ and $150,000 if it was. This can be a great bargaining chip when attempting to negotiate a settlement. But also keep in mind that statutory damages range from the low end at $750. That amount can even be lowered to $200 if the infringement is determined to be ‘innocent.’”

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