‘Copyright Troll’ Lawyer Loses Sanctions Appeal Over False Claim

The non-monetary sanctions imposed on a lawyer and his firm for pursuing a baseless copyright claim and lying to the trial court are reasonable, the U.S. Court of Appeals for the Second Circuit said Friday.

Richard P. Liebowitz of the Liebowitz Law Firm PLLC represented Arthur Usherson in a lawsuit accusing Bandshell Artist Management of infringing Usherson’s copyright for a photograph of musician Leon Redbone.

The district court concluded that the complaint falsely stated Usherson’s photograph was registered with the U.S. Copyright Office. It also determined that Liebowitz failed to reasonably investigate the matter, continued to maintain the lawsuit after being put on notice of the registration issue, violated multiple court orders, and repeatedly lied to the court.

Judges have characterized Liebowitz as a “copyright troll” who has filed thousands of lawsuits seeking to leverage settlements out of defendants, the district court noted.

The court ordered Liebowitz and the firm to pay over $103,000. It also imposed non-monetary sanctions requiring Liebowitz to serve a copy of the court’s opinion to Usherson and all other firm clients and to file a copy of the opinion in any pending case or new case brought by Liebowitz or the firm for one year.

The U.S. District Court for the Southern District of New York also required Liebowitz and the firm to include alongside any complaint in future copyright infringement cases the deposit files maintained by the U.S. Copyright Office as proof of the registration of the relevant work.

The U.S. Court of Appeals for the Second Circuit affirmed the non-monetary sanctions. It said it would decide Liebowitz’ challenge to the monetary sanctions in a future opinion.

The district court’s determination that Liebowitz lied and acted in bad faith in his representations to the court wasn’t clearly erroneous, the appeals court said. Nor was there any basis to excuse the attorney of his duty to reasonably investigate the claims in his complaint, it added.

The court also rejected the argument that the sanctions are overbroad. “Liebowitz’s misconduct in this case—including violating multiple court orders, repeatedly lying to the court, and filing a complaint with a false allegation—justify the nationwide scope of the court’s sanctions,” the Second Circuit said.

“Moreover, Liebowitz’s pattern of misconduct before many judges of the Southern District of New York and across the country” also supports the sanctions, it added.

Finally, the court rejected Liebowitz’ argument that the deposit files requirement would impermissibly shift the burden of proof in copyright cases.

“Although the party challenging the validity of a copyright registration bears the burden of proof, that burden attaches only for presumptively valid copyrights; plaintiffs bear the burden of establishing that presumption,” and an associate of the firm admitted it was regular practice there to file infringement cases without verifying that the works in question are properly registered, the court said.

The appeal is being heard by Chief Judge Debra Ann Livingston and Judges Richard C. Wesley and Susan L. Carney.

Morvillo Abramowitz Grand Iason & Anello PC represents Liebowitz and his firm.

The case is Usherson v. Bandshell Artist Mgmt., 2d Cir., No. 20-02304, summary order 6/25/21.