Photography Cases Spur Copyright Lawsuit Growth in New York

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By Anandashankar Mazumdar

Photography lawsuits brought by a single New York-based law firm flooded Manhattan’s federal district court in September and October, pushing the court ahead of its Los Angeles counterpart in total volume of copyright infringement complaints.

Because of the importance of New York and Los Angeles to the media and entertainment industries, the U.S. district courts there traditionally handle a significant proportion of the copyright infringement cases brought in the nation’s federal courts.

In 2015 and 2016, the U.S. District Court for the Central District of California received 697 and 721 copyright complaints, respectively, compared to 471 and 531 for the U.S. District Court for the Southern District of New York, Bloomberg Law data show. Those were the biggest volumes posted for any two federal district courts in those years.

But the New York court is catching up, with 595 copyright complaints filed there compared with 590 in Los Angeles over the first 10 months of 2017. That is largely due to a surge in filings by the Liebowitz Law Firm PLLC of Valley Stream, N.Y. In the vast majority of those cases, Liebowitz is representing individual photographers who are suing media outlets for unauthorized uses of their images. Many of the complaints follow a similar format.

“Frankly, the entire New York copyright bar has been following him, because of the massive amount of claims he’s brought,” Nancy E. Wolff, an intellectual property litigator with Cowan, DeBaets, Abrahams & Sheppard LLP, New York, said. Wolff’s firm has represented several defendants in infringement cases brought by Liebowitz, as well as photographers seeking to enforce their copyrights in other cases.

Since January 2016, Richard Liebowitz’s firm has represented clients in over 500 copyright cases mostly in the Southern and Eastern districts of New York, Bloomberg Law data show. Activity ramped up in September and October 2017, when the firm appeared in 98 copyright cases in those two courts, with a peak of 57 new filings in September.

Liebowitz didn’t respond to Bloomberg Law requests for comment.

Photographers’ Frustration Fueling Trend

Wolff said that Liebowitz has found a niche to work in as a result of several factors coming together, including the significant burden on photographers to police online infringement and the cost of federal court litigation relative to the potential value of compensation.

“He has taken advantage of image recognition technology and the photographers’ frustration with not making much money with licensing and the ease with which viral images can be republished,” Wolff said.

Mickey H. Osterreicher of Barclay Damon LLP, Buffalo, N.Y., who serves as general counsel for the National Press Photographers Association, told Bloomberg Law that an overall devaluation of photographs has been going on for years.

“I call it ‘right-click gone wild,’” Osterreicher said. “People think the internet is in the public domain.”

Nationwide, new copyright complaints are on a decline, falling to 240 in October 2017 from 360 one year earlier, and from 282 in September 2017.

Much of that drop can be pinned on Malibu Media LLC’s exit from large-scale copyright lawsuits. The adult movie producer filed 1,957 complaints in 2015 and 750 in 2016, but hasn’t made any new filings since February 2017. Malibu Media’s litigation strategy was to target internet users who were distributing unauthorized copies of adult films using BitTorrent software. A new filer, adult film company Strike 3 Holdings LLC, seems to be taking up the BitTorrent lawsuit baton from Malibu, with 22 lawsuits brought in September 2017 and 30 filed in October.

Delaware Retakes Lead in Patents

In patent litigation, the U.S. District Court for the District of Delaware regained its position as the leading venue for complaints. The Delaware court was already one of the most popular venues for patent suits against generic drug makers, and the fact that many companies incorporate there appears to be making the court a new favorite for other patent lawsuits as well.

In June, the Delaware court overtook the long-time patent litigation leader, the U.S. District Court for the Eastern District of Texas, following a U.S. Supreme Court ruling that limited patent owners’ choice of venue. Delaware briefly fell behind the Eastern District in September.

The Delaware court saw 95 patent complaints in October, up from 34 in the prior month. The Texas court had 58 complaints in October, up from 44 in September. In comparison, one year ago, the Eastern District of Texas hosted 163 new patent complaints, compared to Delaware’s 55.

Nationwide, 419 new patent lawsuits were filed in October—up from 264 in September and comparable to the 404 filings in October 2016. Patent filings hit a peak of 868 in November 2015.

The top patent infringement complaint filer in October was Coding Technologies LLC, which filed 29 lawsuits that month—half in federal courts in Florida and a third in Delaware. Since August, Coding Technologies has initiated 47 cases involving U.S. Patent No. 8,540,159, which covers a method and apparatus for facilitating mobile access to content.

In trademarks, the top federal courts for new complaints were the Central District of California with 32; the Northern District of Illinois, based in Chicago, with 25; and the Southern District of Florida, based in Miami, with 20.

Nationwide, new federal trademark filings rose slightly from 241 in September to 254 in October. That was slightly down from 290 in October 2016.

Since January, the top trademark lawsuit plaintiff has been Sream Inc., which has filed 58 trademark actions this year. Sream claims trademark rights related to a class of smoking vessels. The company filed 154 actions in 2016. So far this year, it has filed 68 actions, with a high of 26 in August, 15 in September and no new filings in October, court dockets show.

To contact the reporter on this story: Anandashankar Mazumdar in Washington at AMazumdar@bna.com

To contact the editor responsible for this story: Mike Wilczek at mwilczek@bna.com

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