In the five years his firm has been opened, Richard Liebowitz, a photographer turned attorney, has managed to file more than 2,500 copyright infringement cases. In that same period, he has earned another distinction: he has become the most frequently sanctioned lawyer in the Southern District of New York.
Federal judges in the District and elsewhere, exasperated with the number of cases and Liebowitz’s alleged misconduct, have labeled him the “copyright troll.”
Despite the slew of cases and reprimands, the clients interviewed for this article believe Liebowitz is their best hope of getting paid when their work is infringed, which is an inescapable fact of life for photographers in the internet age.
“The law is the law and it should be followed if we’re gonna get anywhere as artists,” said Arthur Usherson, a photographer based in Georgia who Liebowitz has represented in several lawsuits.
Liebowitz is the logical creation of the media industry’s own making, and as long as media companies continue to use photographers’ work without paying for it, he will continue to find the companies’ weak spots and relentlessly hit them.
“I’m not gonna back down,” said Liebowitz in a phone interview in early November. “I’m fulfilling a need of individuals trying to make a living photographing their work, and if judges don’t like it, they can try to change the law.”
Judges have not changed the law, but have suspended him from practicing it, at least temporarily. On Nov. 30, in an Amended Order of the Usherson v. Bandshell Artist Management case, Judge Jesse Furman and the District’s Committee of Grievances concluded that Liebowitz hasn’t taken any pertinent steps to improve his case management practices. The court suspended him from practicing law in the District “pending final adjudication of the charges against [him].”
“I’m pending hearing and [the suspension] is only for the Southern District of New York. I’m still admitted to practice in other federal courts,” said Liebowitz.
Before the suspension, Furman imposed a $103,500 fine in June. The case has an appendix listing 40 other cases detailing Liebowitz’s alleged misconduct. The most egregious of the alleged actions include lying under oath about his grandfather’s death to justify a no-show for a hearing, and filing complaints of copyright infringements without previously registering the photo with a copyright office.
Other charges include: not notifying defendants about pretrial conferences; not responding to show-cause orders; violating rules in asking for extensions; not complying with discovery obligations; falsely claiming defendants never responded to an offer of settlement; not filing an Opinion and Order in at least 113 cases and a litany of other instances of alleged misbehavior. Liebowitz has even litigated cases in the Northern District of California following an order of disbarment, the appendix says.
So, is he an avenging angel for photographers who have been victims of major media organizations? Or is he an ambulance chaser of the digital age?
To understand how a team of 15 people (comprised of three lawyers including Liebowitz, researchers and paralegals) handle an average of nine lawsuits per week, one has to understand the current state of the photography industry, the frequency of copyright infringements, and Liebowitz’s approach of suing first and negotiating later.
Since the early 2000s, photographers have been the category of newsroom employees most affected by job cuts. From 2000 to 2012, the number of newspaper jobs for photographers decreased by 43 percent, according to the American Society of News Editors. Hence, photographers rarely have reliable staff jobs they can count on, as many newspapers and major media companies now prefer freelance work, or ask their reporters/employees to do some shooting of their own.
A screenshot, drag-and-drop culture has also worsened copyright infringement. “I’m sure you committed several instances of copyright infringement since you got up this morning,” said Christopher Sprigman, a professor of intellectual property law at NYU.
Even the most respectable online publications that have subscriptions to photo agencies like Getty Images have used photos not properly licensed or attributed – either by mistake (e.g. an intern grabbing a photo without following procedure) or on purpose.
“In some of the big, well-recognized publications, infringement has just become part of the cost of doing business,” said Jeffrey Smith, the director of Contact Press Images, a photojournalism agency in New York City. “They’ll take a set of pictures and have them for 48 or 72 hours [on their website] before they get caught. But in the meantime, they have all this web traffic. So settling the case for whatever amount is still worthwhile.”
***
Liebowitz’s behavior probably isn’t the only thing that has caught the court’s attention. Thirty-two years old and raised in Long Island, his voluminous hair, deep tan and long sideburns make him appear more like a Las Vegas entertainer who just happens to be a lawyer on the side. Perhaps he doesn’t look like the typical lawyer because he didn’t start his career like many in the field do. His first passion was photography, which developed when, as a teenager, he interned with Bruce Cotler, a New York photographer veteran who is currently president of the New York Press Photographers Association.
Shooting with Cotler allowed him to meet other entertainment and breaking news photographers. During photoshoots, he saw the long hours it took them to get that perfect shot, and in between breaks he would listen to them complain about how often their work was stolen and the frustration of dealing with infringers. He continued his relationship with Cotler throughout his college years at University of Pennsylvania, where he majored in Communications.
“[These] photographers couldn’t afford a lawyer or didn’t have the time to file a lawsuit and make a big case out of use of their work without permission. I knew there was a hole there and that something was missing,” said Liebowitz. “When I was in college I thought, ‘This is a problem,’ and when you think about a business to get into, you want to think about how to solve a problem. So I decided to go to law school after college.”
His interest in photography and entrepreneurship made intellectual property law an obvious choice. In 2015, a year after graduating Hofstra Law School, he started Liebowitz Law Firm PLLC out of Valley Stream, Long Island.
That same year, Geno Smith, the then-quarterback of the New York Jets, was punched in the jaw by a teammate. The altercation sent him to surgery, and a couple of days later photojournalist Angel Chevrestt spotted him outside his apartment. Chevrestt sent Smith’s licensed pictures to the New York Post, which used them in an article headlined “Big Mouth! Geno Emerges for First Time Post Sucker-Punch Surgery.”
Chevrestt got a call from an editor at the Post telling him CBS used his photos of Smith on its website and on television, without attribution or his consent. “The same week I found out about the infringement, Richard reached out to me. It was the first time that any lawyer reached out to me offering that sort of services. A bunch of us knew our work was being infringed on, but there didn’t seem to be any way to get real resolution,” said Chevrestt via phone.
Liebowitz was there to give him that resolution. The case was the first of thousands of lawsuits the young attorney would file in federal court. It ended up settling out of court for an undisclosed sum, and Chevrestt became a regular client.
“Liebowitz definitely has balanced the playing field for us. He’s made it possible for us to actually feel like we have rights,” said Chevrestt. He thinks the number of cases Liebowitz has filed isn’t exorbitant given how frequently his own work is used without permission.
“You factor in the number of clients he has, and the number of images, because a lot of these clients have been freelancing in New York City for years. Shit, I’d think [the number of cases] would be more in the five years he’s been doing this,” said Chevrestt.
Since the Chevrestt case, Liebowitz has been suing media companies of all sizes, including Business Insider, ABC, Hearst, CNN, Vox, NBC, Meredith Corporation, among many others. He doesn’t think sending a letter or trying to contact the infringer is effective.
“We don’t think that’s the right approach because oftentimes they ignore a demand letter. We think getting right to the source of litigation and then negotiating an appropriate number is the best strategy,” said Liebowitz. He pointed to Mango v. Buzzfeed, a lawsuit he filed this year, as a landmark case and a big win for photographers because the photographer received $54,000, inclusive of all attorney’s fees.
Liebowitz works on a contingency basis, meaning he doesn’t get paid unless a settlement is reached. However, each time a case settles, he gets 50 percent of any proceeds after costs. In contrast, Smith, the agency director, said that from his experience the rate is usually 30 percent of the settlement amount. Other firms’ percentages vary depending on the type of case and how much work was put into it.
Cotler, his old mentor and now client, thinks 50 percent is a fair rate. “Copyright lawyers want $10,000 or $15,000 up front, and a lot of photographers this day and age cannot afford to do that. He might take a little bit more off the back end, but I’d rather have 50 percent of something than 100 percent of nothing,” Cotler said via phone.
The young lawyer has stood up for the little guy against major media companies, but he’s also been after mom-and-pop shops outside of the industry. Most notoriously, a photographer named Paul Steeger hired him to sue JMS Cleaning Services, a small cleaning company in the city.
Steeger was asking for $150,000 in statutory damages – an amount that could have sent JMS into bankruptcy. The work in question was the photo of a leaf on water posted on JMS’s website. Similar photos of leaves are available online for a license of $12. The case ended up settling for an undisclosed amount.
Stephanie Furgang Adwar, who represented JMS and other defendants in cases initiated by Liebowitz, says he always goes for statutory damages (which can range from $750 to $150,000 for willful infringement) regardless of whether his client copyrighted the photo. If the photo isn’t registered before the infringement took place, the plaintiff can only get actual damages, which are considerably less (around $150 to $500). In JMS’s case, the copyright was filed well after the infringing use.
“Every single case I’ve had with him, a small business [is involved],” said Adwar. “And in every single one of them he comes in and says ‘$25,000,’ every single one. The insistence of a $25,000 settlement on a case that’s worth $100 is nonsense. That’s not good-faith negotiation.”
Court documents from other lawsuits reveal that Liebowitz has withheld licensing history information on several occasions and confirm the $25,000 standard ask.
The business model of his firm seems to be to take in as many clients as he can get, file cases and then negotiate settlement. “If you have thousands of these cases, you’re going to settle thousands of cases, and more money is going to come in than you would get if you just wrote a letter. [To him it] is about how to get as much money as he possibly can,” said Adwar.
Adwar’s practice and other law firms specializing in copyright infringement first reach out to the infringer before filing a lawsuit.
Carolyn Wright, a retired copyright attorney in Nevada, said her firm only filed around six lawsuits a year. “This guy filing a lawsuit when he finds an infringement is just to be a bully,” she said in a phone interview. “Federal judges are really, really busy. And all the cases [Liebowitz] has been filing, which I think most of them are relatively small cases, just adds to their work. That’s why these judges have been so upset with this guy.”
Cotler thinks judges have had it with him not so much due to the large number of cases, but because “he’s got so many clients and he’s so young and doing very well. Judges and lawyers out there don’t like it, you know? That he’s the new kid on the block.”
Sprigman, the NYU Law professor, thinks the issue is not the number of cases, but the numerous occasions Liebowitz has been sanctioned, and the little time invested in investigating each case in depth. “There are a lot of copyright lawyers who bring a lot of cases. They don’t end up getting sanctioned. This guy’s doing something different,” he said.
Liebowitz attempted to appeal the range of monetary sanctions Judge Furman imposed on him before his temporary suspension on Nov. 30. “The language of the Opinion and Order was more along the lines of this judge calling me a copyright troll,” he said. “When a judge sanctions a lot of money on the first page of the decision, calling me a copyright troll, [it] shows ulterior motives. What is this really all about? Is it really about what happened? Or is it trying to deter me from filing a lot of cases?”
Regardless of his motive, whether it is to make a quick buck or bring justice to struggling photographers, one thing is certain: unless disbarred, Liebowitz will continue amassing clients and filing suits because media companies and individuals will continue to use photographers’ pictures without paying for them.
“There needs to be a precedent, there needs to be cases that need to be taken to trial, all the way,” Liebowitz said. “A lot of media outlets think ‘How many [infringements] can I get away with,’ and set aside a certain amount of money each year for that. So I think it’s just built into their business model. We wouldn’t be filing this amount of cases unless the problem stopped.”
Correction: The original version of this article misidentified Stephanie Furgang Adwar.