Friday, May 25, 2018

Why Every Media Company Fears Richard Liebowitz; Slate, May 24, 2018

Justin Peters, Slate; Why Every Media Company Fears Richard Liebowitz

"Key to Liebowitz’s strategy is the pursuit of statutory damages. Under the Copyright Act of 1976, federal plaintiffs can be awarded statutory damages if they can prove “willful” infringement, a term that is not explicitly defined in the text of the bill. (“What is willful infringement? It’s what the courts say it is,” explained Adwar. Welcome to the wonderfully vague world of copyright law!) If a plaintiff had registered the work in question with the Copyright Office before the infringement occurred or up to three months after the work was initially published, then he or she can sue for statutory damages, which can be as high as $150,000 per work infringed. That’s a pretty hefty potential fine for the unauthorized use of a photograph that, if it had been licensed prior to use, might not have earned the photographer enough for a crosstown taxi.

“Photographers are basically small businesses. They’re little men. But you have this powerful tool, which is copyright law,” said Kim, the freelance photographer. The question that copyright attorneys, media executives, and federal judges have been asking themselves for 2½ years is this: Is Richard Liebowitz wielding that tool responsibly? “He offers [his clients] nirvana, basically. He essentially offers them: I will sue for you, I don’t care how innocuous the infringement, I don’t care how innocuous the photograph, I will bring that lawsuit for you and get you money,” said attorney Kenneth Norwick. And the law allows him to do it. So is Liebowitz gaming the system by filing hundreds of “strike suits” to compel quick settlements? Or is he an avenging angel for photographers who have seen their livelihoods fade in the internet age? “They can call Richard Liebowitz a troll,” said Kim. “Better to be a troll than a thief.”...

Over the past 2½ years, Liebowitz has attained boogeyman status in the C-suites of major media organizations around the country. Like the villain in a very boring horror movie featuring content management systems and starring bloggers, his unrelenting litigiousness has inspired great frustration amongst editors and media lawyers fearful that they will be the next to fall victim to the aggravating time-suck known as a Richard Liebowitz lawsuit. And he is probably all of the things his detractors say he is: a troll, an opportunist, a guy on the make taking advantage of the system. He is also a creature of the media industry’s own making, and the best way to stop him and his disciples is for media companies to stop using photographers’ pictures without paying for them—and to minimize the sorts of editorial mistakes borne out of ignorance of or indifference to federal copyright law. “People should realize—and hopefully will continue to realize,” said Liebowitz, “that photographers need to be respected and get paid for their work.”"

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