Useful Info For Anyone Defending Sadowski & Higbee

[icepick]

If anyone is defending against a Higbee Sadowski case the Backchina case currently pending in Texas may be useful to follow. Defendant recently filed their motion for summary judgment for fair use and Sadowski provided his evidence of sales, of course most of them are well below Higbee's extortion demands and he doesn't have much proof of payment. Any wagers on Higbee's next move? I'm thinking he has to be close to folding on this case since the sales evidence came up so weak. Another swing and a miss.

Sadowski Sales Statement
https://drive.google.com/open?id=0B6ZBMFkSS0ADU1U0QmNqQUdDVFk

Sadowski Invoice
https://drive.google.com/open?id=0B6ZBMFkSS0ADVUtLODd6Rm1qTEk

Defendant's Memo for summary judgment
https://drive.google.com/open?id=0B6ZBMFkSS0ADT1BqYm1FaUNSNW8

[turbkaos]

what was the outcome of this case?

[DavidVGoliath]

The last recorded update (https://www.courtlistener.com/recap/gov.uscourts.txsd.1431977/gov.uscourts.txsd.1431977.27.0.pdf) was that summary judgement was, unsurprisingly, denied.

I say unsurprisingly because if you read through their motion for summary judgement, they tried to make a very flawed fair use argument, and the judge's opinion shows the grounds on which it failed.

The arguments that BackChina made are ones that are often thrown around as supposedly viable fair use defences centered on the commonly misunderstood news reporting exemption and, when I read them myself, I saw how shot through with holes they were, so it was no surprise to me that BackChina failed on three out of the four-point fair use tests.

Also, anyone reading the judge's opinion will note they did not touch on BackChina's claim that they were not the persons who uploaded the photograph. If you search the US Copyright Office's designated agent directory (their database of DMCA agents), there are no entries for either BackChina or 21uscity.com - and, as of moments ago, the 21uscity.com website still hasn't posted information to the required standard either, so it's likely only a matter of time before they get hit with an infringement claim again, since their site is using many photographs that are plainly copied from other news reporting outlets.

[icepick]

I think the judge's comments on page 4 about how insufficient the evidence of valuation provided by the plaintiff so far is interesting. The issue is almost always damages for every case people come here with, not liability.

[DavidVGoliath]

I think the judge's comments on page 4 about how insufficient the evidence of valuation provided by the plaintiff so far is interesting. The issue is almost always damages for every case people come here with, not liability.

Seems there was an Order made on this case just two days ago, but it's not accessible without a PACER login. I'll hazard a guess that, following the dismissal of the summary judgement request and the failure of the fair use claim, the parties went back to the negotiating table and settled the matter out-of-court.

At any rate, the licensing value of the photograph rarely comes into play when a claim of statutory damages is at the heart of the petition; it would be down to the judge/jury to decide where the needle stops in the $750 - $30,000 range that the law prescribes; having invoices and corresponding payment records are useful tools to bolster arguments for valuation in actual damages claims, but only peripherally useful in cases like this one.

With that said: my opinion is that I've never seen an invoice anything quite like the one Sadowski claims he sent to the New York Post for the specific photograph at the heart of this case. My own invoices are far more specific and include the license type, duration, territorial restrictions, exclusivity clauses and so on, as well as detailing who my company contact is, if there is any corresponding purchase order number or client/vendor ID and so on. I can also, without fail, lay my hands on corresponding bank records that will show payments of invoices, usually within a few days or weeks of the invoice being presented to the client.

[Ethan Seven]

Not knowing what the initial demand was, this looks like a pretty good win for Higbee.   He gets a win on the fair use issue, which looks good, and he beat back what was the defendant’s best argument in defense of the use (which is a safe assumption seeing that the defendant filed a motion for summary judgment on fair use).

The defendant has probably paid $10,000 in legal bills to answer,  file the motion  and the reply.   Now the defendant will likely have to pay a multiplier of Sadowksi’s licensing fees, plus Higbee’s attorneys fees and court costs, which is probably another $10,000.

If Back China is the serial infringer that DavidVGoliath says, it is very odd that they did not settle this claim fast.  Either plaintiff was asking for big money or their attorney was giving them bad advice. 

I logged into PACER, the last entry is scheduling related. 

[DavidVGoliath]

If Back China is the serial infringer that DavidVGoliath says, it is very odd that they did not settle this claim fast.  Either plaintiff was asking for big money or their attorney was giving them bad advice. 

BackChina's own motion for summary judgement cites that Sadowski's opening demand, via his lawyer, was for $2,500. As you say, they're now likely on the hook for multiples of that sum in their own defence fees alone. If the case hasn't settled yet, then the defendant is either hoping to drain Sadowski's finances/will to pursue this, or they're in so deep in that they're pushing through in the hope of a win where Sadowski has to cover their costs, in part or whole.

[kingkendall]

Now the defendant will likely have to pay a multiplier of Sadowksi’s licensing fees, plus Higbee’s attorneys fees and court costs, which is probably another $10,000. 

How do you figure that?  You can either sue for actual damages or statutory damages, not both.  Submitting a copy of an invoice is not proof of payment.  I can make up an invoice for a million dollars.  Does that prove I got paid that?  A receipt from from the NY post or check stamped by the bank from the NY Post is proof.  Gimmie a break.  The going rate for licensing an everyday photo by the NY Post is around the $250.  No fucking way did the Post pay $5,500 for a photo of a car surrounded by snow.  If I were the lawyer for Black China I would to the NY Post and get document proof how much Sadowski got paid for that license and submit to the court that Sadowski submitted fraudulent documentation to the court. 

[Ethan Seven]

How do you figure that.  You can either sue for actual damages or statutory damages, not both.

Judges have wide discretion on statutory damages.  Judges frequently use a multiplier based on the licensing history and the intent level (Willful or unintentional).   So, they can say 3 times the license history if it is unintentional infringement or 10 times if willful infringement, plus attorneys fees and costs.  There is no set formula.

My guess is that there is more to the Saowski licensing history.   Judges have awarded him judgments of $50,000 and $30,000.  See
https://www.higbeeassociates.com/practices/copyright-law/    While these are default judgments, it shows what numbers judges can come up with.   

I am guessing Back China’s attorney did not understand fair use and gave them really bad legal advice.   Who knows.  Maybe they made the mistake of thinking Higbee would not sue.  Either way, Back China will probably end up spending 10 times the $2,500 offer that they rejected, not to mention the distraction and stress. 

[DavidVGoliath]

No fucking way did the Post pay $5,500 for a photo of a car surrounded by snow.  If I were the lawyer for Black China I would to the NY Post and get document proof how much Sadowski got paid for that license and submit to the court that Sadowski submitted fraudulent documentation to the court.

I agree with your points and, if you read through BackChina's motion for summary judgement, you'll see that Sadowski's invoice to the NY Post is supposedly for the supply of eleven photographs in total, so $500 each.

$500 is a believable license fee for newsworthy images that the Post couldn't obtain from any other source. In my early years as a photographer, a local newspaper forgot to apply to have one of their staff photographers shoot a "Pussycat Dolls" concert. It was the first leg of their tour in the country so it was a big deal. The agency I was working with at the time was paid €625 for just one shot that ran as a double-truck in the paper along with their writer's review of the show, with my cut being 60%

Weeks later, their staff photographer and I wound up talking about how I didn't see him at the show. I told him how much I'd been paid for the shot, and he steadfastly argued that there was no way his paper would have ever paid that much for a concert picture. I just shrugged and said that my commission statement says otherwise.

Anecdote aside, It still bothers me that Sadowski's invoice has no line-by-line breakdown of the number of photographs supplied or license terms/restrictions for each image, let alone descriptors of the shots licensed.

The only leeway I'm prepared to cut Sadowski in this regard is that many creatives are absolutely hopeless at the business side of their craft, and simply don't know how to write up a robust licensing document/invoice. It's not something that's taught at college and university courses for the arts and, if a person has fallen into self-employment on the back of their hobby/passion, it's possibly not something they've ever been taught.

You can be a great photographer but, if you suck at running a business, you'll quickly find yourself out of your depth or worse... a lack of structure to your business operations can leave you hamstrung in situations where you're asked to provide evidence of having done something, like having licensed eleven photographs to a newspaper.

[kingkendall]

I think you guys are getting way ahead of yourselves when it comes to the costs of this.  You don't if Black China's lawyers are doing this case pro bono.  Maybe they want to take a firm stand against copyright trolls?  And although the judge ruled against Black China in summary judgement, there was a lot of language against Sadowski that I think the judge is signaling his case for the money he's asking falls way short.  If I was Black China's attorney I would go for broke and argue that Christopher Sadowski is using the Federal court as a collection agency.  He's filed over 70 cases in the last three years using multiple attorneys.  I would get the proof from the Post of what he gpt paid for that photo and it comes no where near his original demand of $2,500 and argue how the court system will allow this extortion to continue?  Does it look Sadowski would win?  Technically yes.  But, I see the award being a lot closer to $750 or between $200 and $750.  Multipliers would not come close to applying in this case because evidence Sadowski supplied is too flimsy.   

[Ethan Seven]

I guess it is possible that they are using a friend/family member as a pro bono attorney for this case, but that would be surprising for a site of this size.

There are a lot of subjective components of these cases.  My guess is that a judge would think $2,500 is a reasonable eoffer on timely registered image used by a serial infringer.   But this can go either wat.     At the end of the day, as long as the plaintiff’s conduct is not unreasonable, the law instructs the court to award the copyright holder attorneys fees and costs. 

If judges have been awarding Sadowski default judgments for $50,000 and $30,000, those judges are seeing value there.

I will enjoy following this.

[kingkendall]

If judges have been awarding Sadowski default judgments for $50,000 and $30,000, those judges are seeing value there.
 

What does a default judgement have to do with the factors of this case?  in this case Black China responded to the summons and complaint issued by the plaintiff and is putting up an affirmative defense of "fair use" as they see it.  A default would the defendant did not respond to the complaint leaving themselves open to a judgement against them.  It's a totally different animal   

[kingkendall]

This judge's opinion on fair use raises a question in my mind.  Suppose the photo was a a smoking car tailpipe into a bank of snow, with smoke barely escaping he exhaust.  Wouldn't that be more descriptive to the text of the story?   

[DavidVGoliath]

This judge's opinion on fair use raises a question in my mind.  Suppose the photo was a a smoking car tailpipe into a bank of snow, with smoke barely escaping he exhaust.  Wouldn't that be more descriptive to the text of the story?

It wouldn't matter how descriptive the photograph was with respect to the story/translation that BackChina posted on 21uscity.com; the photograph in question originally ran on the NY Post's website and thus was descriptive of the story i.e. "this is the car in which a mother and her children succumbed to carbon monoxide poisoning during a snowstorm"

The judge's opinion was that Sadowski's photograph was more factual as opposed to one involving a high degree of creativity but, even then, that was the only point of the fair use test that was upheld.