Useful Info For Anyone Defending Sadowski & Higbee

[kingkendall]

Okay, I see the point.  Although Black China lost 3 o 4 points, 2 of the points Sadowski won were screaming victories.  Sadowski didn't have his shit together either.  I still thin the judge was wrong in not considering a Chinese publication of an English story not transformative.  Whatever!  This case I think will settle out and not go further.   

[DavidVGoliath]

I still thin the judge was wrong in not considering a Chinese publication of an English story not transformative.

Any translation of the text from the original English news article to a Chinese language summary would still be factual. No artistic transformation of the photograph occurred and, since the matter before the judge related to a claim of infringement of rights in the photograph only, that's the reason for not even considering the publication on 21uscity.com as being transformative.

[kingkendall]

I miswrote the following:

 Although Black China lost 3 o 4 points, 2 of the points Sadowski won were NOT screaming victories. 

[DavidVGoliath]

Although Black China lost 3 o 4 points, 2 of the points Sadowski won were NOT screaming victories.

It's actually the contrary: Sadowski alleged infringement and BackChina countered with a claim of fair use (an affirmative defense) and was BackChina who had their defense dismissed after failing three out of the four tests. It's not like each the four-point tests has hard pass/fail thresholds, so Sadowski didn't need to have a screaming victory of any kind - the judge's opinions of the facts relating to this specific case was all that mattered.

IP Lawyers will tell you that every single fair use defense is judged solely on the facts of the particular case i.e. there is never a bright line standard where you can unequivocally state "X is fair use, but Y isn't" - because the four-point test for fair use has masses of leeway for interpretation, you could even have the same case with identical facts tried by two different judges and wind up with very different opinions.

Let's say you had a judge that was a photography enthusiast as a hobby; BackChina might also have lost the one point conceded to them, because a judge knowledgeable about the technical aspects of photography might counter that Sadowski's picture - although a depiction of a factual scene - was also a wholly original work whereby Sadowski applied his skills and experience to determine how and when to make the photograph, including (but not limited to) his choice of camera, lens, focal length, aperture, shutter speed, ISO value, framing of subject, placing of light sources, and other variables honed through knowledge of his craft.

If BackChina is being represented pro bono or by counsel that they are personally connected to, then I agree that it is now perhaps in their best interest to settle the matter, though I'm sure it will cost them a lot more than $2,500 to do so, now that Sadowski has incurred filing fees and other costs in making his claim.

[kingkendall]

I think you give Sadowski too much credit.  He's a troll who has filed over 70 cases in the past three years.  No doubt he's making more money on demand letters and lawsuit settlements than he's getting licensing his photos to the NY Post.  I would've made that as part of discovery.  He's using the Federal court as his collection agency.  That's pertinent information the judge needs to know.

[A Lawyer]

This is a very interesting case, and I am surprised it hasn't settled yet. If you look at the defendant's website it looks like it is all reposted content and a ton of photographs, which I am guessing are taken from other souces without a license like the Sadowski photograph. Technically, since their motion was merely denied, they could still prevail at trial, however, they would likely be precluded from arguing fair use to the jury. If Sadowski were to move for summary judgment and win or win at trial that would essentially destroy BackChina's business model. Then there would be a public record of a court ruling that BackChina's business model is not protected by fair use and is an actionable copyright infringement. If I am them, I would probably want to settle as quickly as possible to avoid that possibility. Outside of fair use, I am not sure they have any other defenses. As it stands, even on the denial of their fair use MSJ, they are probably going to be facing a host of new infringement suits now from potential copyright holders who do some research and find that ruling.

I think you give Sadowski too much credit.  He's a troll who has filed over 70 cases in the past three years.  No doubt he's making more money on demand letters and lawsuit settlements than he's getting licensing his photos to the NY Post.  I would've made that as part of discovery.  He's using the Federal court as his collection agency.  That's pertinent information the judge needs to know.

I highly doubt any of that would be admissible evidence. Unless one of those 70 lawsuits involves this photograph or this defendant it would be irrelevant. I am not familiar with the nature or merits of all of Sadowski's lawsuits, but if they are legitimate infringements (as it appears this one is) then he has every right to pursue the legal remedies available to him. A judge may or may not find that distasteful but will most likely disregard that information anyway. In my experience, when litigants attempt to make personal attacks against the other side that have little or nothing to do with the ultimate merits of the case, all it does is piss off the judge and reflect poorly on the party bringing it up in the first place. Judges hate personal attacks and generally view them as a waste of time. It's also seen as a pretty obvious sign that you aren't confident in your case and don't have a very strong argument on the merits.

[UnfairlyTargeted]

Or, the fact that there are 70 cases means this guy is another POS image seeder.  How else would you have 70 defendants to sue in court plus hundreds of others that settle before going to court if you haven't been off spreading your image around in deceptive actions to trap people into using them?

That's what I'd look into and bring to the attention of the court.

[kingkendall]

@ A Lawyer

You don't know what you're talking about because pointing out a plaintiff's scheme to extort money from people using the inadequacies of copyright law in internet age is very relevant information.  Using the Federal courts as collection agencies in the scheme is something judges frown upon as well.

[Ethan Seven]

@king Kendall.  While you think a judge may share your point of view, it is highly unlikely/ wishful thinking.      It is easy to see why “A Lawyer” is correct.    Judges and the clerks, who do the research for judges, know how many times a person litigates and they don’t care.   He has gone against opposing attorneys who know way more about this stuff than you or I and none have pursuaded a judge that the number of cases he files is noteworthy.

He is a photo journalist for a established and credible publication.  He not only has a right to use the federal courts to protect his work, it is his only available judicial forum.   

[Ethan Seven]

Or, the fact that there are 70 cases means this guy is another POS image seeder.

Let me start my saying congratulations to UnfairlyTargeted for not mentioning Tom Schwabel in a post.  Huge step.   

Now if we can just disabuse you of the silly notion that everyone who enforces their copyrights is seeding images.  For the love of God, get over it.    Sadowski is photographer for the New York Post, it should be quite obvious that he does not need to seed his images.  They probably go viral every day. 

[kingkendall]

Sadowski is NOT a photographer for the NY Post.  Get your facts straight.  He's a freelance photographer that licenses his photos to news organizations.  And he doesn't make enough money doing just that.  He makes more money via extortion who are quick to pay up after getting a demand letter.  Wake up and smell the coffee!   

[UnfairlyTargeted]

Ethan, don't worry, I haven't fallen sick.  I'll mention him again soon.  Gotta keep the shitty posts about him at the top of his search results so eventually the felon can't extort a piece of dog shit off the sidewalk, let alone sell a single legitimate photo, which I doubt he's ever actually done.

[A Lawyer]

@ A Lawyer

You don't know what you're talking about because pointing out a plaintiff's scheme to extort money from people using the inadequacies of copyright law in internet age is very relevant information.  Using the Federal courts as collection agencies in the scheme is something judges frown upon as well.

Just voicing my perspective based on my experience. You are perfectly free to disagree with my opinion. Readers can decide for themselves which advice is more pertinent to their own particular situation. Part of the reason that I started posting on these boards is because I have found a lot well-meaning, but seriously misguided advice. I wanted to offer an alternate perspective in the hopes that people who are targeted by these photographers get the best information possible so they can make the right decision for their own situation.

[Ethan Seven]

Sadowski is NOT a photographer for the NY Post.  Get your facts straight.  He's a freelance photographer that licenses his photos to news organizations.  And he doesn't make enough money doing just that.  He makes more money via extortion who are quick to pay up after getting a demand letter.

Whether the Post pays their photographers as employes or contractors is irrelevant.  A Google search shows about 500 photo credits on the NY Post.   If he shoots 500 plus photos for the Post, he is a photographer for the Post.   The larger point is that he is a credible photographer with an established market for his work.

There is nothing in the statute or case law that says a copyright holder’s right to protect their rights diminishs if their enforcement revenue exceeds licensing revenue.  Until you can show a single judge who shares your fantasy, your theory should be recognized it for what it is, wishful thinking.

There is no statute of limitations that limits the amount of money a person can accumulate from enforcement or the number of times a person can use the courts to protect their property.

As long as people are infringing on their work, you can count on him and his NY Post buddies to keep suing.  No judge is going to blow a whistle and penalize them for excessive enforcement, especially if they are making efforts to resolve claims outside of court.

You can argue the images are not worth his demand amounts, that is part of every copyright case.   But you cannot successfully argue a person has made too much money from enforcement.

[Ethan Seven]

Ethan, don't worry, I haven't fallen sick.  I'll mention him again soon.  Gotta keep the shitty posts about him at the top of his search results so eventually the felon can't extort a piece of dog shit off the sidewalk, let alone sell a single legitimate photo, which I doubt he's ever actually done.

Your persistence is only exceeded by your abundant colorful expressions.  You are a good sport