On The Case

Oft-sanctioned ‘copyright troll’ victimized client, says new malpractice suit

(Reuters) - Over the past three years, federal judges in New York and across the country have made very clear their view of the tactics of copyright lawyer Richard Liebowitz of the Liebowitz Law Firm. Liebowitz was only admitted to the bar in late 2015. Since then, he has filed more than 2,000 cases in federal courts, most of them for photographers who alleged their work was misappropriated. He has also been sanctioned or otherwise criticized in dozens of decisions. U.S. District Judge Jesse Furman of Manhattan provided a roundup and an overview of those rulings in a decision last June in Usherson v. Bandshell.

“Judges in this district and elsewhere have spent untold hours addressing Mr. Liebowitz’s misconduct, which includes repeated violations of court orders and outright dishonesty, sometimes under oath,” Judge Furman wrote. “He has been called ‘a copyright troll,’ ‘a clear and present danger to the fair and efficient administration of justice,’ a ‘legal lamprey,’ and an ‘example of the worst kind of lawyering.’” All of those quotations, in case it’s not clear, are from judges overseeing cases Liebowitz filed.

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Judge Furman included an appendix of 40 decisions criticizing Liebowitz – and that was just as of June. At least one other court has issued an additional sanctions ruling since then against Liebowitz: In August, U.S. District Judge Lawrence Kahn of Albany recommended in Adlife v. Buckingham Brothers that Liebowitz be struck from the roll of the court for failing to disclose that he had been recently disbarred in the Northern District of California.

I’ve been watching this extraordinary record develop since late 2018, wondering all the while about Lieberman’s other constituency: his clients. Even as judge after judge sanctioned Liebowitz for breaking litigation rules and norms, he has continued to file new cases – which suggests that Liebowitz still has a loyal client base. One client told Slate, which ran a flattering 2018 profile of Liebowitz: “Better to be a troll than a thief.”

But a newly filed malpractice lawsuit against Liebowitz proves that at least one of his clients is fed up. The photographer Glen Craig, who was the plaintiff in one case in which Liebowitz was sanctioned for nearly $100,000 and another in which the defendant has been awarded nearly $25,000 in fees and costs, has alleged in a complaint in New York State Supreme Court in Manhattan that Liebowitz attempted to resolve his cases without his knowledge or consent, failing to put Craig’s interests before his own.

Before I tell you about the specifics of Craig’s allegations, you should know that Liebowitz called the suit “baseless and frivolous” in an email responding to my query. “We intend to vigorously defend this vexatious lawsuit and seek sanctions against plaintiff and his counsel,” the email said. I also asked Liebowitz to respond to Judge Furman’s roundup of the sanctions ruling against him. He did not offer a comment on that.

Craig has been photographing pop, rock and jazz stars for more than 50 years. In 2016, according to his malpractice complaint, he signed a retainer agreement with Liebowitz. Soon thereafter, Liebowitz filed a suit for Craig against UMG Recordings, accusing the music company of infringing Craig’s copyright on photos of the legendary blues singer B.B. King. In July 2019, U.S. District Judge Paul Oetken of Manhattan granted UMG’s motion to sanction Liebowitz for filing a bad-faith motion to disqualify its expert witness. Judge Oetken awarded UMG nearly $100,000 in fees and costs. Two months later, in September, Liebowitz reached a deal with UMG to settle Craig’s case.

Liebowitz made the deal, according to Craig, without consulting his client. And Craig was not at all happy about the terms, his suit alleges. Craig had wanted to bring claims against UMG for its use of his photograph not just on B.B. King album covers but also on merchandise and in marketing materials. Liebowitz, Craig said, disregarded the additional alleged infringement. Craig had told Liebowitz that he wouldn’t settle for less than a minimum amount. (The lawsuit does not disclose the amount.) Liebowitz agreed to a deal beneath Craig’s minimum. And, according to Craig’s suit, Liebowitz failed even to inform Craig that he’d made a deal.

Craig said he found out about the settlement only after checking the court docket and finding a filing from the court-appointed mediator. When he finally saw the terms of the proposed deal Liebowitz had negotiated, his complaint said, he was “shocked.”

Craig said he told Liebowitz that the settlement terms were “not acceptable, not authorized and not agreed to.” He marked up the term sheet with proposed changes. Liebowitz, Craig’s suit alleged, did not respond and did not inform UMG of Craig’s objections. The suit alleges that Liebowitz falsely told Judge Oetken that Craig was traveling and unable to review the proposed deal. And after the judge set a Dec. 31 deadline to finalize the deal, Craig’s complaint alleges, Liebowitz told Craig that if he didn’t sign the settlement, the case would be dismissed and he would receive nothing. Craig signed.

Craig said the settlement called for Liebowitz to pay him the nearly $100,000 sanction that had been awarded to UMG. But according to the complaint, Liebowitz agreed to give up only about $50,000. The other half, Liebowitz allegedly said, belonged to him under his 50% contingency fee agreement with Craig. “Liebowitz essentially pocketed funds he was ordered to pay as sanctions,” the complaint said.

Liebowitz meanwhile filed a second suit on Craig’s behalf in the Southern District of Illinois against PopMatters, an online magazine that allegedly infringed Craig’s copyright on a photo of Miles Davis. PopMatters, which said it had a sublicense with Sony that allowed it to use the photo, said the suit had been improperly filed in East St. Louis. After the case was transferred to federal court in Chicago, Liebowitz dismissed it. In March, U.S. District Judge Ronald Guzman of Chicago awarded PopMatters more than $24,000 in fees and costs.

Liebowitz and Craig have offered different accounts of the case to U.S. District Judge Staci Yandle of East St. Louis, who is overseeing PopMatters’ litigation to collect its fee award. Craig has told Judge Yandle that he never even authorized the suit and knew nothing about Liebowitz’s decision to file it in an improper venue. Liebowitz has submitted emails indicating that Craig approved the filing of the suit.

In Craig’s malpractice complaint, he said the fee award to PopMatters has caused him “anxiety and distress,” and that he does not have the money to pay the entire award. He blamed the whole fiasco on Liebowitz, whom, Craig said, filed the case in the wrong venue to avoid disclosing his own history of sanctions to the federal court in Chicago. And to make matter worse, Craig alleged, Liebowitz has turned on his onetime client, providing privileged information to PopMatters to aid its efforts to collect from Craig.

Craig counsel Joel Rothman of SRIP Law, who, like Liebowitz, specializes in asserting IP claims for content creators, told me he’s been tracking Liebowitz since Liebowitz began filing masses of suits. “I’m so frustrated, honestly,” Rothman said. “I’ve devoted my career to a practice that, in a short period of time, this guy has made a shambles of.” Liebowitz, Rothman contends, has made the federal judiciary skeptical about infringement claims even in cases brought by other firms.

“He has devalued the intellectual property of clients like Mr. Craig at a time when the extent of infringement is vast,” said Rothman, who told me he has occasionally collaborated on cases with a lawyer from Liebowitz’s firm – but has not worked with the firm since that lawyer left Liebowitz to join Rothman’s shop. Rothman told me he has made it a mission to keep attorney disciplinary bodies and judges overseeing Liebowitz cases informed about sanctions decisions against Liebowitz. He is also representing a onetime client of Liebowitz who is trying in federal court in Denver to get out of a settlement Liebowitz negotiated, allegedly without the client’s consent.

“I’m not interested in this because of client (competition),” Rothman said. “I’m angry about this.”

(NOTE: This article has been corrected. A previous version incorrectly referred to Rothman as Roth in several references.)