Case 1:18-cv-07628-AJN Document 46 Filed 11/09/20 Page 1 of 12
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`DOCUMENT
`E:U: TRONiCA1.LY FILED
`11/9/20
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`18-cv-7628 (AJN)
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`OPINION & ORDER
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`Stephen Yang,
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`Plaintiff,
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`–v–
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`Mic Network, Inc.,
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`Defendant.
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`ALISON J. NATHAN, District Judge:
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`Plaintiff brought this action in 2018 for copyright infringement, alleging that Mic
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`Network used his photograph without authorization. Defendant then moved to dismiss and, in
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`September 2019, the Court granted that motion in full and dismissed Plaintiff’s complaint with
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`prejudice. After that decision, Plaintiff moved for reconsideration of the Court’s opinion, and
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`Defendant moved for attorney’s fees and sanctions. For the reasons that follow, the Court denies
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`Plaintiff’s motion for reconsideration and denies Defendant’s motion for fees and sanctions.
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`I.
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`BACKGROUND
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`Plaintiff Stephen Yang is a professional photographer who licenses his photos to online
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`and print media for a fee. Complaint, Dkt. No. 17, ¶ 5. In April 2017, Plaintiff took a
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`photograph of Dan Rochkind (the Photograph). Compl. ¶ 7. The Photograph was then licensed
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`to the New York Post, which ran an article entitled Why I Don't Date Hot Women Anymore about
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`Rochkind and his dating life (the Post Article). Compl. ¶ 8; Dkt. No. 17-2. The Post Article
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`featured the Photograph. Compl. ¶ 8.
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`Soon after, Defendant Mic Network posted an article entitled Twitter is skewering the
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`‘New York Post’ for a piece on why a man “won't date hot women” (the Mic Article). Compl.
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`¶ 11; Dkt. No. 17-4. The Mic Article includes not the full Photograph, but rather a screenshot of
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`the Post Article, which includes the headline of the Post Article, the author’s name, the date, and
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`roughly the top half of the photograph (the Screenshot). Compl. ¶¶ 11–12; Dkt. No. 17-4.
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`Defendant did not license the Photograph, nor did it have Plaintiff's permission or consent to
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`publish the Photograph. Compl. ¶ 13.
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`In August 2018, Plaintiff filed this suit for copyright infringement. Dkt. No. 1. After
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`Defendant moved to dismiss, Plaintiff filed an amended complaint, which is the operative
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`pleading in this case. See Dkt. No. 17. Defendant then renewed its motion to dismiss on the
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`grounds that Defendant's use of the Photograph was protected by the fair-use doctrine. Dkt. No.
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`19.
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`On September 24, 2019, the Court granted Defendant’s motion and dismissed the
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`complaint with prejudice. Yang v. Mic Network, Inc., 405 F. Supp. 3d 537 (S.D.N.Y. 2019).
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`The Court reasoned that Defendant’s use was protected as fair, primarily because it was
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`transformative in several respects. Id. at 542–545. Following the Court’s decision, Plaintiff
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`moved for reconsideration. Dkt. No. 28. Defendant then moved for attorney’s fees and
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`sanctions. Dkt. No. 30. These two motions are now before the Court.
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`II.
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`PLAINTIFF’S MOTION FOR RECONSIDERATION IS DENIED
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`A motion for reconsideration should be granted only if the movant identifies “an
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`intervening change of controlling law, the availability of new evidence, or the need to correct a
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`clear error or prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL
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`Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (citation omitted). “The decision to grant or
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`deny a motion for reconsideration is within the sound discretion of the district court.” Corines v.
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`Am. Physicians Ins. Tr., 769 F. Supp. 2d 584, 594 (S.D.N.Y. 2011). “Reconsideration of a
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`previous order by the court is an ‘extraordinary remedy to be employed sparingly in the interests
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`Case 1:18-cv-07628-AJN Document 46 Filed 11/09/20 Page 3 of 12
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`of finality and conservation of scarce judicial resources.’” RST (2005) Inc. v. Research in
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`Motion Ltd., 597 F. Supp. 2d 362, 365 (S.D.N.Y. 2009) (quoting In re Health Mgmt. Sys., Inc.
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`Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000)). A motion for reconsideration is not a
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`“vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing
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`on the merits, or otherwise taking a ‘second bite at the apple.’” Analytical Surveys, Inc. v. Tonga
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`Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136,
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`144 (2d Cir. 1998); see also Weiss v. El Al Isr. Airlines, Ltd., 471 F. Supp. 2d 356, 358
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`(S.D.N.Y. 2006) (“A motion for reconsideration is not an opportunity for a losing party to
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`advance new arguments to supplant those that failed in the prior briefing of the issue.”). The
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`standard for granting a motion for reconsideration “is strict and reconsideration is generally
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`denied.” Weiss v. City of New York, No. 96-cv-8281 (LTS), 2003 WL 21414309, at *1
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`(S.D.N.Y. June 19, 2003).
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`Plaintiff brings three arguments in favor of reconsideration, but none succeeds. First, he
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`argues that the Court’s earlier decision “overlooked that Plaintiff’s copyrighted photograph is a
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`separate and distinct asset from the New York Post article.” Pl. Br., Dkt. No. 29, at 3. Yang
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`claims that this distinction warrants reconsideration of the Court’s conclusion that Defendant’s
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`use was transformative under the first fair-use factor. To be sure, Plaintiff is correct that “Yang’s
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`ownership interest resides in the Photograph itself,” not in the New York Post article. Id. at 3–5.
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`However, the Court clearly and repeatedly distinguished between the Photograph and the Post
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`Article. See, e.g., Yang, 405 F. Supp. 3d at 541. And as the Court made clear, “it is clear from
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`the face of the Mic Article that it was using the Screenshot to identify the subject of
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`controversy—the Post Article—and to illustrate why the article has been controversial.” Id. at
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`543. Courts have repeatedly found such uses to be transformative. See, e.g., Barcroft Media,
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`Ltd. v. Coed Media Grp., LLC, 297 F. Supp. 3d 339, 352 (S.D.N.Y. 2017). And the Court noted
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`that “the Mic Article uses the Photograph to place Rochkind in a harshly negative light, while the
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`original use of the Photograph [in the Post Article] placed him in a positive, or at least neutral
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`light.” Yang, 405 F. Supp. 3d at 544–45. The Court thus recognized the distinction between the
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`Photograph and the Post Article and nonetheless concluded that Defendant’s use of the
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`Photograph was transformative. Accord Clark v. Transp. Alts., Inc., No. 18-cv-9985 (VM), 2019
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`WL 1448448, at *2 (S.D.N.Y. Mar. 18, 2019). Indeed, the Court notes that Yang advanced a
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`substantially similar argument in opposition to Defendant’s initial motion, and the Court rejected
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`this position. See Dkt. No. 22 at 11–15.
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`Next, Plaintiff contends that the Court’s “transformative analysis [took] for granted that
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`the New York Post article is a ‘serious’ piece of reporting . . . some may regard the New York
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`Post Article as ‘tongue-in-cheek’ and satirical in its own right.” Pl. Br. at 5–7. However,
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`Plaintiff did not advance this argument in opposition to the original motion, and the Court
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`therefore need not consider it here. See Analytical Surveys, Inc., 684 F.3d at 62; see, e.g., Dkt.
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`No. 22 at 17. And even if this argument was preserved, it would still fail, as the Mic Article
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`would still—even accepting Plaintiff’s well-pleaded allegations as true—be criticizing the Post
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`Article, its subject Rochkind, and how he was portrayed in the Article’s image and text.
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`Defendant’s use would therefore still be transformative.
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`Finally, Plaintiff argues that the Court “overlooked [the] widespread use of the
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`Photograph in a similar manner,” which “establishes a potential market in which Yang has an
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`expectation to collect fees.” Pl. Br. at 7. Again, Yang advanced this argument in opposition to
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`the motion to dismiss, and the Court rejected it. Compare Dkt. No. 22 at 22–24 with Yang, 405
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`F. Supp. 3d at 547–48. As the Court explained, “the Photograph does not appear on its own in
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`the Mic Article, but as part of a composite Screenshot including the Post Article's headline, the
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`author's byline, and the date and time. In light of the cropped and composite manner in which
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`the Mic Article presents the Photograph, it is implausible that potential purchasers would opt to
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`use the Screenshot rather than license the original Photograph.” Id. at 548. Plaintiff has not
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`presented any new reason, let alone a change in binding law or evidence of clear error, that
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`would support reconsidering this result. See Kolel Beth Yechiel Mechil of Tartikov, 729 F.3d at
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`104. The Court thus rejects this argument as a basis for reconsideration.
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`* * * * *
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`Many of Yang’s arguments in support of his motion for reconsideration boil down to
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`policy concerns. For example, he contends that the Court “opened Pandora’s box by allowing
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`news publishers to steal photographs by means of ‘composite Screenshots.’” Pl. Br. at 5. And
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`he argues that the Court’s decision allows “secondary publishers [to] just rip off whatever
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`photographs they like based on some controversy raised by an accompanying literary work.” Id.
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`However, it is not the Court’s role to decide each copyright dispute as a matter of first
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`impression based upon what would make good policy. Instead, the Court in its September 2019
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`Opinion applied binding Supreme Court and Second Circuit precedent to determine that
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`Defendant’s use was fair and thus protected from liability. And in his motion for
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`reconsideration, Plaintiff has not identified “an intervening change of controlling law, the
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`availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”
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`Kolel Beth Yechiel Mechil of Tartikov, Inc., 729 F.3d at 104. The Court thus denies his motion
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`for reconsideration.
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`III. DEFENDANT’S MOTION FOR FEES AND SANCTIONS IS DENIED
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`A. The Copyright Act Does Not Entitle Defendant to Fees
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`Defendant contends that the Copyright Act entitles it to attorney’s fees of about $20,000.
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`Dkt. No. 31, Def. Br., at 16. The Copyright Act provides courts discretion to award the
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`prevailing party in an infringement action its costs, including reasonable attorney’s fees. 17
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`U.S.C. § 505. An award of fees and costs is not automatic; rather, the district court has
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`discretion to determine whether such assessment would be fair. See Knitwaves, Inc. v. Lollytogs
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`Ltd., 71 F.3d 996, 1011 (2d Cir. 1995). To determine whether fees are warranted, courts
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`consider “several nonexclusive factors,” including “frivolousness, motivation, objective
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`unreasonableness[,] and the need in particular circumstances to advance considerations of
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`compensation and deterrence.” Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979, 1985
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`(2016) (alteration in original) (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994)); see
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`also Bryant v. Media Right Prods., Inc., 603 F.3d 135, 144 (2d Cir. 2010). And in exercising its
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`discretion to award fees, the Court must keep in mind the Copyright Act’s purpose: “enriching
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`the general public through access to creative works.” Fogerty, 510 U.S. at 527.
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`The Court begins with the objective reasonableness of Plaintiff’s lawsuit. A lawsuit or
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`litigation position is objectively reasonable if it has “a reasonable basis in law and fact.”
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`Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95, 108 (2d Cir. 2014); see also Jovani Fashion,
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`Ltd. v. Cinderlla Divine, Inc., 820 F. Supp. 2d 569, 573 (S.D.N.Y. 2011) (position is objectively
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`unreasonable if it is “clearly without merit or otherwise patently devoid of legal or factual basis”
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`(internal quotation omitted)). A “lack of success on the merits, without more, does not establish
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`that the non-prevailing party’s position was objectively unreasonable.” Overseas Direct Imp.
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`Co. v. Family Dollar Stores Inc., No. 10-cv-4919 (JGK), 2013 WL 5988937, at *2 (S.D.N.Y.
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`Nov. 12, 2013); see also Kirtsaeng, 136 S. Ct. at 1988 (“No matter which side wins a case, the
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`court must assess whether the other side's position was (un)reasonable . . . Courts every day see
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`reasonable defenses that ultimately fail . . . .”).
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`Here, the Court concluded that, even accepting Plaintiff’s allegations as true, Plaintiff had
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`failed to state a plausible claim for copyright infringement, as Defendant’s use was
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`transformative and thus fair for several reasons. See Yang, 405 F. Supp. 3d at 542. Still,
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`although the Court granted Defendant’s motion to dismiss, Plaintiff’s position in bringing this
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`lawsuit was not objectively unreasonable. Plaintiff’s opposition to the motion to dismiss made
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`reasonable arguments under the circumstances, cited applicable precedents, and gave reasoned
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`explanations for why an action for copyright infringement should lie here. See Dkt. No. 22.
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`Indeed, the Court concluded that several fair-use factors cut in favor of Plaintiff’s position,
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`though these factors were not ultimately dispositive. See Yang, 405 F. Supp. 3d at 546 (noting
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`that Defendant plausibly acted in bad faith), id. (holding that the second fair-use factor, nature of
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`the work, cut “slightly in Plaintiff’s favor, if at all”). The Court thus cannot conclude that
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`Plaintiff’s position was “clearly without merit or otherwise patently devoid of legal or factual
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`basis.” Jovani Fashion, 820 F. Supp. 2d at 573.
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`In a strikingly similar case—involving the same attorneys as this case and brought
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`against the same defendant—Judge Batts dismissed the plaintiff’s complaint because defendant’s
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`purportedly infringing use was de minimis. Rudkowski v. MIC Network, Inc., No. 17-cv3647
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`(DAB), 2018 WL 1801307, at **3–4 (S.D.N.Y. Mar. 23, 2018), appeal withdrawn, No. 18-2686,
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`2018 WL 6536114 (2d Cir. Nov. 2, 2018). As here, plaintiff then moved for reconsideration, and
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`defendant moved for fees and sanctions. Judge Batts denied reconsideration, and then denied
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`defendant’s motion for fees because there was “no Second Circuit case directly addressing” the
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`claim at issue and because “Plaintiff [had] made reasonable argument for the extension” of
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`binding precedent. No. 17-cv-3647 (DAB), Dkt. No. 36 at 12–13 (S.D.N.Y. Sept. 6, 2018). The
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`same is true here. Indeed, as the Court explained in TCA Television Corp. v. McCollum, “the
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`fact that the plaintiffs’ position on the fair use issue was ultimately vindicated does not require a
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`determination that their litigation position was objectively reasonable.” No. 15-cv-4325 (GBD),
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`2017 WL 2418751, at *10 (S.D.N.Y. June 5, 2017), report and recommendation adopted, 2018
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`WL 2932724 (S.D.N.Y. June 12, 2018). Though Plaintiff was unsuccessful in this litigation, its
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`filing of the case and subsequent arguments were not objectively unreasonable. The Court thus
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`concludes that the objective reasonableness factor cuts against fee shifting. See also Otto v.
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`Hearst Communications, No. 17-cv-4712 (GHW), 2020 WL 377479, at *3 (S.D.N.Y. Jan. 23,
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`2020) (denying motion for fees in part because the “applicability of the fair use defense is a
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`complex, fact-driven inquiry . . . and the context of this case was relatively novel); Muller v.
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`Twentieth Century Fox Film Corp., No. 08-cv-2550 (DC), 2011 WL 3678712, at *1 (S.D.N.Y.
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`Aug. 22, 2011).
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`Still, “objective reasonableness [is] . . . not the controlling” factor to the fees inquiry.
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`Kirtsaeng, 136 S. Ct. at 1988. Courts may also consider “a party’s litigation misconduct,
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`whatever the reasonableness of his claims or defenses,” and may also “deter repeated instances
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`of copyright infringement or overaggressive assertions of copyright claims.” Id. And the Court
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`may consider whether either party acted with improper motivation. See Baker v. Urb. Outfitters,
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`Inc., 431 F. Supp. 2d 351, 357 (S.D.N.Y. 2006), aff’d, 249 F. App’x 845 (2d Cir. 2007) (“[T]he
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`presence of improper motivation in bringing a lawsuit or other bad faith conduct weighs heavily
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`in favor of an award of costs and fees.”).
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`The Court recognizes that Plaintiff’s counsel, Mr. Richard Liebowitz, has in just a few
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`years “become one of the most frequently sanctioned lawyers, if not the most frequently
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`sanctioned lawyer, in the District.” Usherson v. Bandshell Artist Mgmt., No. 19-cv-6368 (JMF),
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`2020 WL 3483661, at *1 (S.D.N.Y. June 26, 2020) (emphasis in original). Indeed, Courts in this
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`District have deemed Mr. Liebowitz “a copyright troll.” See, e.g., McDermott v. Monday
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`Monday, LLC, No. 17-cv-9230 (DLC), 2018 WL 5312903, at *2, (S.D.N.Y. Oct. 26, 2018). In
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`particular, Mr. Liebowitz has gained a reputation for bringing large quantities of strike suits,
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`including frivolous copyright claims, in an effort to cajole defendants into settlements. See
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`Usheron, 2020 WL 3483661, at **1–2; Konangataa v. Am. Broadcastingcompanies, Inc., No.
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`16-cv-7382 (LAK), 2017 WL 2684067, at *2 (S.D.N.Y. June 21, 2017); Reynolds v. Hearst
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`Commc’ns, Inc., No. 17-cv-6720 (DLC), 2018 WL 1229840, at *4 (S.D.N.Y. Mar. 5, 2018) (“A
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`number [of] Mr. Liebowitz’s cases have been dismissed from the bench as frivolous.”) (citations
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`omitted). Judge Furman summarized Mr. Liebowitz’s history of misconduct at length in
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`Usheron, and the Court does not spill any more ink on it here. See Usherson, 2020 WL
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`3483661, at *19, Appendix (collecting cases in which courts have “chastise[d] [Mr. Liebowitz],
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`impose[d] sanctions on him, and require[d] his clients to post bonds to cover future adverse
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`awards of attorney’s fees and costs resulting from his misbehavior”). Needless to say, Defendant
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`is correct that Plaintiff’s counsel has engaged in “overaggressive assertions of copyright claims,”
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`cutting slightly in favor of awarding Defendant fees. Kirtsaeng, 136 S. Ct. at 1988.
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`However, the Court does not discern any improper motivation on behalf of Plaintiff in
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`bringing this case. Indeed, though Defendant recounts at length Mr. Liebowitz’s misconduct in
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`other litigation, the Court’s focus must be on his actions in filing and litigating this case. See
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`Kirtsaeng, 136 S. Ct. at 1985 (holding that courts must make a “particularized, case-by-case
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`assessment” to determine whether to award fees and costs). Even though the Court has
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`dismissed the complaint with prejudice, this case was not objectively unreasonable and
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`Mr. Liebowitz made colorable arguments, both in opposition to the motion to dismiss and in
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`support of his motion for reconsideration. As far as the Court is aware, he did not behave
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`improperly in the course of this litigation, and thus this factor too cuts against Defendant’s
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`request for fees.
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`Given the balance of these factors, the Court concludes that fee shifting is not appropriate
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`under the Copyright Act. See 17 U.S.C. § 505. Indeed, the Second Circuit has made clear that
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`the “principle purpose of the [Copyright Act] is to encourage the origination of creative works by
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`attaching enforceable property rights to them.” Diamond v. Am–Law Publ’g Corp., 745 F.2d
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`142, 147 (2d Cir. 1984). “As such, the imposition of a fee award against a copyright holder with
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`an objectively reasonable litigation position will generally not promote the purposes of the
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`Copyright Act.” Matthew Bender & Co. v. W. Pub. Co., 240 F.3d 116, 122 (2d Cir. 2001). That
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`is the case here, and the Court thus denies Defendant’s request for fees under the Copyright Act.
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`Accord Rudkowski, Dkt. No. 36 at 12–13.
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`B. Sanctions Are Not Warranted
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`Defendant also argues that that the Court should award fees as a sanction, either under its
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`authority under a federal statute or under its inherent powers. The Court may impose costs,
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`expenses, and reasonable attorneys’ fees against an attorney who “multiplies the proceedings in
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`any case unreasonably and vexatioously.” 28 U.S.C. § 1927. To impose sanctions under this
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`statute, “a court must find clear evidence that (1) the offending party's claims were entirely
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`without color, and (2) the claims were brought in bad faith—that is, motivated by improper
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`purposes such as harassment or delay.” Kim v. Kimm, 884 F.3d 98, 106 (2d Cir. 2018) (internal
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`quotation marks and citation omitted). The Court may also impose sanctions under its inherent
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`powers against a party or attorney “who has ‘acted in bad faith, vexatiously, wantonly, or for
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`oppressive reasons.’” Ransmeier v. Mariani, 718 F.3d 64, 68 (2d Cir. 2013) (quoting Chambers
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`v. NASCO, Inc., 501 U.S. 32, 45–46 (1991)). As a practical matter, awards made under § 1927
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`and the Court’s inherent powers differ only in that the former may be imposed only against
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`attorneys or other persons authorized to practice before the courts while the latter may be levied
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`against a party as well as an attorney. See Enmon v. Prospect Cap. Corp., 675 F.3d 138, 143 (2d
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`Cir. 2012).
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`Defendant’s sanctions argument is simpler to resolve. Simply, Defendant has not put
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`forward any evidence that Plaintiff acted in bad faith. See Chambers v. NASCO, 501 U.S. 32,
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`45–46 (1991). Again, although Plaintiff’s complaint failed to state a claim, it was not so baseless
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`as to constitute bad faith. Nor was Plaintiff’s conduct in this litigation egregious or beyond the
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`pale; to the contrary, Plaintiff consistently made reasonable arguments in support of his position.
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`The Court thus denies Defendant’s motion for sanctions. See Gollomp v. Spitzer, 568 F.3d 355,
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`368 (2d Cir. 2009) (court may award § 1927 sanctions only “when the attorney’s actions are so
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`completely without merit as to require the conclusion that they must have been undertaken for
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`some improper purpose” (cleaned up)).
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`IV. CONCLUSION
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`For the reasons stated above, Plaintiff’s motion for reconsideration is DENIED. This
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`resolves Dkt. No. 28. Moreover, Defendant’s motion for attorney’s fees and sanctions is also
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`DENIED. This resolves Dkt. No. 30. And Plaintiff’s motion to strike Defendant’s July 29, 2020
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`filing, Dkt. No. 39, is DENIED as moot. This resolves Dkt. No. 41.
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`SO ORDERED.
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`Case 1:18-cv-07628-AJN Document 46 Filed 11/09/20 Page 12 of 12
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`Dated: November 9, 2020
`New York, New York
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`____________________________________
`ALISON J. NATHAN
`United States District Judge
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