rachel dolezal – Techdirt (original) (raw)

from the so-so-so-many-problems dept

A little over a year ago, we wrote about a copyright dispute involving Rachel Dolezal, who now also goes by the name Nkechi Amare Diallo. As you may recall, there was a fair bit of attention paid to her years ago because while calling herself a black woman, it turned out that she was actually white. Whatever you think of that controversy, our focus was on the fact that she was a client of notoriously inept copyright troll Richard Liebowitz, who had filed a lawsuit over the copyright on a photo in Paper Magazine.

That lawsuit was bizarre on multiple levels, beginning with the fact that Liebowitz was initially representing an entity called Polaris Images, who had apparently worked out an exclusive licensing deal with Dolezal regarding her images. When Paper Magazine’s attorneys called into question that “exclusive licensing agreement,” Liebowitz, in standard Liebowitz fashion, simply dropped Polaris from the complaint and replaced it with Dolezal herself — which raised a bunch of questions.

Anyway, earlier this week a new lawsuit caught my attention, as it was Dolezal suing over copyright again, this time suing CBS Interactive, claiming that CBS property ET Online infringed Dolezal’s copyright in publishing this photo in this article, published on June 12, 2015.

There are a whole bunch of problems with the lawsuit, and we’ll probably cover only a few of them. However, I did notice that it wasn’t Liebowitz who was representing her — which makes sense since last we’d heard Liebowitz was suspended from practicing law in the Southern District of NY. However, it does look like Liebowitz and/or his firm is still involved in the case. The lawyer who filed the case, Daniel Roscho (who appears to run his own copyright litigation practice called “Copyright Justice” even though his law firm’s website mostly focuses on real estate law…) filed a declaration with the complaint, noting that this was in partnership with Liebowitz.

The Firm Liebowitz Law Firm, PLLC (“LLF”), and Mr. Richard Liebowitz have been retained by Nkechi Diallo a/k/a Rachel Dolezal, the Plaintiff in the above-captioned matter, to file a claim for copyright infringement. The retainer agreement provides that LLF is authorized to contract and associate with co-counsel. Pursuant to that retainer agreement, LLF has associated with my Firm, The Roshco Law Firm, PLLC and myself, Daniel S. Roscho, and has asked me to pursue this action under its retainer

Even if it’s not Liebowitz, the fact that this is done in partnership with Liebowitz is almost certainly going to raise some eyebrows in SDNY, where Liebowitz has a reputation. Why any other lawyer would want to tie his own reputation to Liebowitz’s is beyond me.

Anyway, Roshco notes that he is filing this declaration because Judge Jesse Furman somewhat famously has some requirements regarding any case involving Liebowitz. For copyright cases, that includes proof of actual registration of the copyright (that has been an issue in some of the Liebowitz cases) as well a copy of the deposit file that was used to register the copyright (another issue in prior Liebowitz cases). Roshco notes that he doesn’t yet have the official deposit copy, but is working on getting it. He still filed the case now because of his concern about the statute of limitations.

It is my good-faith belief that waiting for an official deposit copy of the work at issue before filing the complaint in the instant action may cause Plaintiffs claim to become barred by the statute of limitations and I will promptly file the official deposit copy of the work at issue upon receipt. Therefore, in compliance with the Order, on May 7, 2021 I applied for an official deposit copy of the work at issue from the USCO, which was registered as part of copyright registration no. VA 2-094-553 I am awaiting delivery of the official deposit copy from the USCO.

And, uh, yeah, the statute of limitations thing might be an issue, but I don’t think filing now, before Roscho has obtained the deposit copy is going to help much. The statute of limitations on a copyright infringement case is three years. As the complaint itself admits, the publication by ET Online happened… in 2015. I may not be a math genius, but even I can subtract 2015 from 2021 and recognize there’s an issue there. Dolezal tries to get around this by claiming that she only discovered the article on May 24, 2018 (it’s unclear why she then waited three years to sue), which would put her within the statute of limitations if CBS can’t show that she actually knew or should have known about the publication earlier.

But… that’s still not going to help very much. Under the Sohm decision last year in the 2nd Circuit (which covers the court this case was in), she can only get monetary damages for the 3 years preceding the lawsuit. That is, even if there was infringement, she could only get the “damages” from 2018 through 2021… for an article published in 2015. It’s hard to see much in the way of provable damages there.

And… despite the fact that copyright law has (insane) statutory damages, those aren’t available here. If you register the image after the alleged infringement, you can only get actual damages. Dolezal is also asking for punitive damages which are almost never awarded in copyright cases (many courts think that you can’t even get punitive damages for infringement, and even though SDNY has suggested punitive damages might be available in some cases, there is nothing at all exceptional about this case that would lead to punitive damages. Or attorneys’ fees, which is also asked for.

We haven’t even gotten to the question of who actually holds the copyright to this image. The registration says that Dolezal is the “author” of the image. Looking at the actual image suggests that is extremely unlikely. It looks very much like it was taken by someone else, who would have the most likely copyright claim on the image. Perhaps there is some way that this is actually a selfie, but I don’t see it. Her right arm is mostly out of frame, but in the lower corner, you can see three fingertips on her side, showing that she is not holding the phone. So it does not appear to be a selfie, and thus it seems like she is misrepresenting herself as the author of the image in question. Remember, it’s the person who takes the photo who is almost always granted the copyright, not the person in the photo, or the person who owns the camera. There are a few possible exceptions, but it doesn’t seem like any would apply here.

And, finally, there’s fair use. The image was used in conjunction with a news article and was relevant to the reporting. It’s difficult to see how the use of the image was not fair use.

So even if this is not technically a Richard Liebowitz case, it has all the hallmarks of a typical Richard Liebowitz case, and I cannot imagine that it will end well for Dolezal, Roscho… or Liebowitz.

Filed Under: actual damages, copyright, copyright troll, daniel roschco, fair use, nkechi amare diallo, punitive damages, rachel dolezal, registration, richard liebowitz, statute of limitations
Companies: cbs

from the why-do-people-still-hire-this-guy? dept

Why oh why do people still hire copyright troll Richard Liebowitz? There are just so many stories of him messing up cases and getting scolded by judges, you’d think that people would think twice. But then, yet another story of Liebowitz messing up comes to light. The latest is a real doozy. It involves the somewhat controversial person, Rachel Dolezal (who now goes by Nkechi Amare Diallo — a name that has spun up plenty of controversy itself) , who made a lot of news five or so years ago when it was exposed that, despite calling herself a black woman for years, she was actually white. Last summer, she made some news again, when she declared on Instagram and Twitter that she was bisexual. I’m not entirely sure I understand why this was newsworthy, but some publications ran with it — including Paper Magazine (though, it appears the story has since been deleted).

Either way, in the fall, an operation called Polaris Images, represented by Liebowitz, sued Paper Mag’s parent company, Enttech Media, because it had posted an image of Dolezal’s Instagram post referenced above. According to the lawsuit, Dolezal had provided Polaris with an “exclusive licensing agreement” concerning various images of herself — including the one in the Instagram post. Paper Magazine’s lawyer, Robert Tauler, pointed out (among other things) that Polaris couldn’t possibly be the exclusive licensee, because in posting the image to Instagram, Dolezal had granted a non-exclusive license to Instagram as well, and if you’ve granted a license to more than one party, you can’t claim one is “exclusive” any more.

Tauler also pointed out that the copyright in the image wasn’t registered until a month after the article in question, and pointed out that it’s almost certainly fair use for a news organization to show a social media post in a news story about that social media post. Liebowitz, in typical Liebowitz fashion, responded that “the fair use defense is borderline frivolous.” No, Richard, it’s not.

But, you know what is frivolous? Trying to swap plaintiffs midstream. But that’s what Liebowitz tried to do.

Apparently the issue of whether or not Polaris actually had the right to sue over this image made Liebowitz realize that the case was in trouble. So he filed an “amended” complaint, but part of the “amendment” was to completely drop the plaintiff Polaris from the complaint and just swap in Dolezal as the new plaintiff. That… is not how things are done. Paper Mag’s lawyer sent quite a letter to the court highlighting the many, many, many problems of such a filing:

At the December 19, 2019 pre-motion conference regarding Plaintiff?s motion to dismiss Polaris? original Complaint (the ?Polaris Complaint?), the Court granted leave to Polaris to amend its Complaint. However, Polaris did not amend its Complaint. Instead, Polaris removed itself as plaintiff and added non-party Dolezal as the Plaintiff, alleging new facts that contradict the Polaris Complaint and the representations of counsel at the December 19, 2019 pre-motion conference, namely that Dolezal, not Polaris, has standing to sue….

[….]

As Plaintiff?s counsel made clear at the December 19th hearing, ?Polaris and Ms. Dolezal entered into an exclusive licensing agreement on December 15th of 2017, and pursuant to that agreement any photographs that Ms. Dolezal provides to Polaris are subject to an exclusive license. So, what that means is that Polaris has the exclusive right to distribute or display those images to third parties.? (Transcript, p. 3 (Exhibit A)). Polaris? counsel further articulated his knowledge of the law at the December 19th hearing, stating ?if we [Polaris] have an exclusive license, we have standing to sue. That?s the statute.? (Transcript, Ex. A, p. 12). Despite the foregoing, the Amended Complaint not only abandons Polaris? theory of the case, it abandons Polaris altogether.

As Tauler points out, you can’t just swap in a brand new plaintiff like that either:

First, the Dolezal Complaint runs afoul of FRCP 15 which provides that only a party may amend a pleading. Thus, Dolezal did not have the right to amend the Polaris Complaint. Second, the Dolezal Complaint violates FRCP 21 requiring leave of Court. See Spencer v. Dixon, 290 F. Supp. 531, 535 (W.D. La. 1968)(?Attempt to add additional parties fails where Amended Complaint contains no request for any order to add additional parties because Rule 21 of the Federal Rules of Civil Procedure requires that additional parties may be added or dropped from an action only on motion of any party and order of the court.?). Third, a non-party may not participate in an action without filing a formal motion to intervene.?See?Spangler v. Pasadena City Bd. Of Ed., 552 F.2d 1326, 1329 (9th Cir. 1977). See Recht v. Metro Goldwyn Mayer Studio, Inc., No. CV 0806612 RGKMANX, 2008 WL 11409588, at *2 (C.D. Cal. Nov. 17, 2008)(Striking amended complaint as an improper attempt by a non-party to intervene in the action where a non-party amended a pleading.). Finally, Polaris failed to dismiss its case prior to filing the Dolezal Complaint. Dolezal should have filed a new case when Polaris dismissed itself as the sole Plaintiff.

This doesn’t even get into the question of how Liebowitz claiming to represent both Polaris and Dolezal could create some conflict of interest.

Perhaps recognizing that he was about to get into serious trouble yet again, Liebowitz did one of the things he’s best at: turning tail and running. He sent a petulant angry letter saying that he’ll dismiss the case “in order to avoid unnecessary motion practice” but still wanting to make sure he got in the last, nonsensical word. First, he claims that despite first claiming that Polaris had sole standing to sue, he later recognized he made a mistake, and therefore decided to swap in the new plaintiff:

Defendant argues that Dolezal does not have standing to sue because Plaintiff?s counsel previously represented that Polaris is the exclusive licensee to the Photograph at issue. We respectfully aver that subsequent to the first pre-motion conference, we re-analyzed Polaris? exclusive agreement with Dolezal in light of prevailing caselaw and determined in good faith that it was Dolezal, rather than Polaris, who has standing to sue. The issue ultimately comes down to one of contractual interpretation and the timing of when Dolezal transmitted her Photograph to Polaris. It is a complex issue, and presents a question of first impression, so we have attempted to navigate the issue based on our good faith application of the law to the facts.

Richard, Richard, Richard. It is not a particularly complex issue. You fucked up. Again.

Either way, Tauler has now announced that he’s going to seek attorneys fees for Paper Magazine, and notes that he expects to “challenge” Liebowitz’s silly claim that this was all “just a misunderstanding.”

Either way, this is yet another “misunderstanding” to throw on Liebowitz’s ever growing pile of bad lawyering. Note that this all happened just weeks after Liebowitz had to bring a family friend with him to court to tell the judge that young Richard was too inexperienced to be handling cases like this and that he’d promised to get help from more experienced lawyers. By all appearances, it does not seem that Richard has followed through on that.

Filed Under: copyright, copyright troll, exclusive license, rachel dolezal, richard liebowitz, robert tauber, social media
Companies: enttech media, paper magazine, polaris images