On The Case

Manhattan federal judges are getting fed up with notorious copyright ‘troll’

(Reuters) - Richard Liebowitz of the Liebowitz Law Firm was admitted to the New York bar in August 2015. Since then, he has filed 1,210 copyright suits in New York’s federal trial courts on behalf of photographers and other copyright holders. Liebowitz has appeared so often in Manhattan federal court in the last three years that last October, U.S. District Judge Denise Cote dedicated an entire opinion to the question of whether he could fairly be dubbed a copyright troll. Judge Cote concluded that he could, noting that of the more than 700 cases Liebowitz had by then filed in Manhattan federal court, more than 500 were resolved without any substantive litigation.

“As evidenced by the astonishing volume of filings coupled with an astonishing rate of voluntary dismissals and quick settlements,” Judge Cote wrote, “it is undisputable that Mr. Liebowitz is a copyright troll.” (The judge issued the opinion in response to a motion by Liebowitz to redact the word “troll” from a previous decision in the case, which involved copyright claims against a small Idaho online newspaper.)

Want more On the Case? Listen to the On the Case podcast.

Liebowitz – who did not respond to my phone call or emails requesting comment – obviously has a dedicated client base. In a May 2018 profile, Slate called him “the salvation of the underpaid photographer,” estimating that he had obtained millions of dollars of settlements for photographers whose work would otherwise have been pirated without penalty. “They can call Richard Liebowitz a troll,” one client told Slate. “Better to be a troll than a thief.”

Manhattan judges, however, seem to be running out of patience with Liebowitz’s litigation tactics. The lawyer was socked in two opinions issued this week: an $8,745 sanction by U.S. District Judge Jesse Furman in a case alleging that NBC infringed a copyrighted photo of a raccoon being removed from a beauty salon in the Bronx and a $98,532 sanction by U.S. District Judge Paul Oetken in a case involving photos of the blues artist B.B. King. Judge Oetken found that Liebowitz had filed a bad-faith motion to disqualify a defense expert. Judge Furman said he was on the hook for failing to show up at a court-ordered mediation and pre-trial conference. Both judges resoundingly rejected Liebowitz’s explanations for his conduct.

These are not the first sanction rulings against Liebowitz. Indeed, as Judge Furman noted at the beginning of his opinion in Rice v. NBC Universal, Liebowitz has managed, in less than four years of practice, to earn “the dubious distinction of being a regular target of sanctions-related motions and orders.” It’s no exaggeration, Furman observed, to say there is “a growing body of law in this district devoted to the question of whether and when to impose sanctions on Mr. Liebowitz.”

In most of those previous rulings, Manhattan federal judges have, however grudgingly, granted Liebowitz considerable leeway. Take Judge Cote, for instance. She called Liebowitz a troll, but nevertheless declined to award sanctions against him for filing a suit without a good-faith belief that New York had personal jurisdiction over the defendant. In a different case, in which Liebowitz filed an infringement suit against a mom-and-pop cleaning service, Judge Cote awarded $10,000 in sanctions after Liebowitz failed to serve the defendants with notice of a pretrial conference, but then cut the award to only $2,000 after Liebowitz moved for reconsideration.

But based on the new Oetken and Furman opinions, it looks as though Liebowitz will be cut no more slack in the Southern District. In fact, Judge Oetken specifically rejected the lawyer’s arguments that he may have exercised poor legal judgment, but not bad faith, when he moved to disqualify a defense expert on copyrights and licensing.

The disqualification motion asserted that Liebowitz’s client, photographer Glen Craig, gave confidential information about his licensing practices to the defense expert in a telephone conversation. Judge Oetken originally found the motion sanctionable in a decision in March, holding that Liebowitz knew Craig had not revealed confidences and filed the disqualification motion in bad faith. Liebowitz then filed a motion for reconsideration in which he asserted that he genuinely believed Craig had disclosed confidential information to the defense expert.

Judge Oetken was having none of it. He found that before filing the disqualification motion, Liebowitz had attended a deposition in which his client provided the defendants with detailed accounts of his employment history and past licensing practices – the same allegedly confidential information that Liebowitz cited in the motion to toss the defense expert. “Knowing that plaintiff’s licensing history was no longer confidential to defendant, Liebowitz could not possibly have had any genuine belief that this statement had evidentiary support,” the judge wrote. “Plaintiff’s disqualification motion was meritless from the get-go.”

Defense lawyers at Loeb & Loeb had asked for nearly $160,000 in sanctions based on their alleged cost to defend the meritless disqualification motion. Judge Oetken shaved the award to just under $100,000 – still orders of magnitude more than previous sanctions decisions against Liebowitz.

In the case before Judge Furman, Liebowitz failed, without explanation, to attend a court-ordered mediation. He also failed to appear at a court-ordered pre-trial conference, even though Judge Furman had rescheduled the conference the day before at Liebowitz’s request – and had denied a subsequent motion by Liebowitz to cancel the hearing because his client was dismissing the case.

Liebowitz had argued that he didn’t attend the mediation because his client could not take a day off from work and that he did not go to the pre-trial conference because he did not believe Judge Furman still had jurisdiction over a dismissed suit.

Liebowitz’s own history of defending against sanctions motions was his undoing with Judge Furman. According to the judge, if anyone should have known that courts retain the authority to sanction lawyers for their conduct in dismissed cases, it’s Liebowitz, who has been sanctioned by other Manhattan federal judges after dismissing cases. Judge Furman said that Liebowitz is liable for all of the fees incurred by NBC’s lawyers at Satterlee Stephens after April 18, when the parties were supposed to have completed mediation.

Considering the volume of lawsuits he has filed, Liebowitz has been sanctioned in only a tiny percentage. But this week’s rulings are a clear sign that judges in Manhattan are watching him. Troll or savior, he’d better be on his best behavior.