> For years, Richard Liebowitz ran a very successful operation mostly sending threatening letters to companies claiming that they had infringed upon copyrights held by his photographer clients. Under the best of circumstances it’s a niche practice area that’s… kinda shady.
Why is it shady when done properly? Copyright violations are a valid concern for photographers.
The economics of it don't militate in favor of diligence and precision. An individual claim is rarely going to be for a lot of money so to turn it into a profitable business it requires scale. At which point they typically rely on automated systems with a significant false positive rate that don't take into account possible fair use etc. Meanwhile the coercion to settle applies just as much to an innocent party, because the premise is "pay a little to avoid an expensive court battle" which is still coercive even if you could win in court.
Practices that involve shaking down innocent people are shady.
Fun thing is I’ve faced the same automation of incompetence at scale from the lawyers who run Florida’s child support system. There’s a deadbeat dad out there born 10 days before me with the same first and last name. Every time I move, the automation goes into action and it takes me hiring a lawyer remotely in Florida to get it to stop every time.
I agree that running an automated system with a significant false positive rate is shady, it's just I don't think that this counts as "under the best circumstances".
I've seen cases of e.g. big newspapers publishing photos without permission and when asked politely to purchase a license reply that "you should be proud of your work being published in such a respectable establishment as ours". For a photographer in question an "expensive court battle" is an obstacle just the same and I have nothing against a lawyer who makes a living out of cases like this.
> For a photographer in question an "expensive court battle" is an obstacle just the same and I have nothing against a lawyer who makes a living out of cases like this.
That this is an obstacle for the photographer is exactly the issue. The scale is required in order for it to become a "practice area" (as opposed to e.g. a pro bono case taken on the side), and the shady practices come with the scale.
I don't see how making a living out of professionally defending independent content producers automatically translates to sending scam e-mails. Both can be done at scale but they are not the same.
Are there actually lawyers who make a living out of the former though? To not have it be so many letters that haste is inevitable, they would have to be individually large claims. Minor violations by large entities aren't worth much, major violations by small entities aren't either (because they can't pay), and major violations by large entities are uncommon because large entities can afford counsel. Meanwhile when they happen they're coveted by every law firm that likes money, so how would anyone secure for themselves enough of those cases to specialize in it?
"In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000."
It's true that copyright violations are a concern for photographers, however some online photographer communities really need to take a chill pill regarding copyright.
I've seen some photographers wanting to sue clients because they cropped or modified their wedding pictures when posting them online. "It doesn't reflect my style" is the argument I've seen excusing this behaviour. I understand that there's a creative aspect to photography, but in my opinion it's mostly linked to subject choice and overall aesthetic. In wedding pictures, the subject is pretty obvious and non-novel, the artistic choices around background / decoration are not made by the photographer, and (this is IMO the crucial point) the photographer is paid for their time while they create the pictures. This makes it pretty clearly a "work made for hire" in terms of copyright, which should be pretty familiar to everyone here.
Now, a photographer that goes out on their own, sees something that nobody else saw, captures it in an interesting way, makes a beautiful edit of said capture, and finally sells that picture on their website; that absolutely is creative work and wholly deserves copyright protection.
That's a good example. Maybe I misunderstand the meaning of "shady" but I don't see toll bridge sales as such. It's either a perfectly legitimate deal or an outright fraud. It's not some grey area when selling toll bridge is semi-legal with courts disagreeing over whether to punish you or not.
Yeah, that sentence was an odd way to start this article. Under "the best of circumstances", sending C&Ds is a pretty damn common, normal, and boringly routine thing for a lawyer to do.
Why is it shady when done properly? Copyright violations are a valid concern for photographers.