Photography Copyright Lawsuit (06-cv-01164, D. Minn.)

I have the digital negative, other similar shots, proof of prior publication (web and print), and a certificate of copyright registration (#VA 1-333-149) from the US Copyright Office.

I left for the Philippines in September of 2004, to take photos and meet Arlene. After six months overseas, I returned to the United States in April, 2005.

When I published this photo on my website, it had my website address in the lower-left; this was cropped out of the photo in the ad.

He initially denied the photo was mine, but when I offered to provide the high-resolution digital negative to prove I took it, he said that was not necessary, he knows it is my photo. He claimed to have paid a photographer named "Michael Zubitskiy" for the photo and would not pay twice.

I filed a claim in conciliation court against them on June 22nd, 2005. A hearing was scheduled for August 17th.

"...the lawyer's letter appears to be a bullying tactic designed to cause Gregerson to refrain from making statements which [they] knew Gregerson was entitled to make."

I offered to remove anything that could be shown to be false, and write a retraction. I got no answer, but was sued in Minnesota state court for defamation on October 24th, 2005. The lawsuit alleged the title of the page at that time was false and defamatory because it had the phrase "Intellectual Property Theft", in reference to the other party's copyright violation. Nothing else was cited as being false. I contacted an attorney for legal advice, but defended myself "pro se" (I represented myself, writing my own motions and responses, making oral arguments at motion hearings, and deciding on a legal strategy).

An ex-parte Temporary Restraining Order (TRO) was granted to the other party, requiring me to remove this webpage for several days until a hearing on the matter was held. The judge dissolved the TRO wrote that "...the requested restraining order is an unconstitutional prior restraint."

"Gregerson's allegations are serious, and on their face credible. For example...[he] now has no idea how to locate Zubitskiy, and that the $850 he paid Zubitskiy for the photograph was in cash. This testimony, along with other findings made by Gregerson, suggests that [he] actually stole Gregerson's photograph...".

Q: Who do you believe owns the copyright to that photo?
A: Michael Zubitskiy

• "[Their] lawyer's letter appears to be a bullying tactic designed to cause Gregerson to refrain from making statements which [they] knew Gregerson was entitled to make."
• "Gregerson alleged that...a purported sales contract between [them] and Zubitskiy...is a forgery. Gregerson's allegations are serious, and on their face credible. For example...he now has no idea how to locate Zubitskiy, and that the $850 he paid Zubitskiy for the photograph was in cash. This testimony, along with other findings made by Gregerson, suggests that [he] actually stole Gregerson's photograph...".
• "The person who took Gregerson's photograph from Gregerson's website without paying Gregerson the licensing fee is clearly guilty of theft".
• "...[their] defamation Complaint...fails to state a claim for relief under the substantive law of defamation... Accordingly, if [the other party] intends to pursue its defamation claim (in which case [he] would be well advised to find the elusive Mr. Zubitskiy), [they] must file an amended complaint that specifies the exact statements made by Gregerson...which [the other party] alleges to be defamatory and false."

I was going to file a motion for summary judgment and needed to know what attorney was representing the other party now, since Morgan Smith had withdrawn. Boris Parker was representing them in my federal copyright lawsuit, so I called him at Saliterman & Siefferman and asked him twice, directly, if he was representing the other side in the defamation case. He would only say "That case is dismissed...it's over", and that he had the papers to dismiss the case himself and would file them tomorrow, so that the claim could be re-filed against me in federal court.

Later that day, Boris Parker called me and said I could not serve him with my motion because he was not representing the other party in the state court lawsuit (even though he filed their notice of dismissal). Boris Parker was emphatic, saying to me "Do you speak English?".

The judge ordered the other party to retain counsel, and scheduled a status conference for May 26th.

It appears Karen Runyon sued Morgan Smith to collect her (unpaid) fee, and he then brought a third-party claim against his client because they had not paid him.

Judge Montgomery asked if I would voluntarily remove a few unsavory comments posted by third parties, and clarify the critical nature of the webpage, which I did. Their request for an injunction was denied.

"...customers that experience initial interest confusion and go to Gregerson's web sites are not likely to, once they realize their mistake, buy photographs instead of real estate or financial services."

"The existence or non-existence of Michael Zubitskiy is not related in any manner to the central issue of the Plaintiff's complaint...The subpoenas...are not calculated to the discovery of any relevant evidence."

1. Deceptive trade practices
2. Trademark infringement
3. Interference with Contractual Relationships
4. Appropriate of Name and Likeness
5. Injunction against further disparagement and infringement
6. Unjust enrichment in excess of $100,000

On December 6th, 2006, Judge Boylan ruled against the motion to limit discovery and quash my subpoenas.

brochure	My photo #2558

I requested a brochure through discovery, which (when produced) turned out to have a second photo from my website, that of a Kenwood Mansion. I was given a poor quality black-and-white reproduction, but the other photo is still recognizable as mine (see right).

I amended my copyright infringement lawsuit to include a claim over this second photo. I had registered the copyright for this photo before they published it, which entitled me to statutory damages for copyright infringement.

Summary Judgment

I filed a motion and memorandum of law in support of Plaintiff's motion for summary judgment. I'm seeking summary judgment on the other party's liability for copyright infringement (with damages to be determined at trial) and in my favor on all of their counterclaims.

In the other side's reply brief, their attorney, Boris Parker wrote:

"All of the testimony and evidence to date supports the fact that [the defendants] purchased the photographs at issue from a third party...It is more plausible that Plaintiff set up Defendants by providing his photographs to a third party who then disseminated them for a price to unsuspecting victims...in order to allow Plaintiff to extort money and claim unreasonable and unfounded damages..."

This suggests the following theory of the case:

• I am in league with "Michael Zubitsky", a Russian-speaking man who has no record of ever existing.
• Zubitskiy met the other party in a sauna at Balley's health club, offering to provide photos. The other party happened to need of photos for his business.
• After providing photos on a CD-ROM, my partner demanded payment in cash so he could not be traced through bank records.
• Next, Michael Zubitskiy stole back the photos, deleted all copies.
• Michael Zubitskiy continues to live "underground" in order for this plan to work, with no driver's license, phone number, home address, credit record, etc. All of this work allows me to send the other party a letter demanding a $5,000 licensing fee for my photos (beyond the $850 in cash they already paid Zubitskiy).

The other side argues this is more plausible than them simply downloading the photos from my website and cropping out the website address.

Summary Judgment finds the other party infringed on my copyright

The amount of damages, including statutory damages (up to $150,000 under 17 USC § 504(c)(2)) will be determined at trial. On August 31st, Judge Ann D. Montgomery ruled as follows (06-cv-01164 D. Minn. Docket no. 108):

The court allowed claims against me for "deceptive trade practices" and "interference with contractual relations" over this webpage to proceed to trial:

Gregerson argues that Defendants have not offered any evidence that Gregerson has disparaged their business through false or misleading representations of fact....Defendants have submitted evidence that Gregerson has posted, or allowed others to post, comments on his commercial photography website that, if untrue or misleading, make damaging comments about Defendants' business.

Note that 47 U.S.C. § 230 of the Communications Decency Act requires "plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement." This is discussed here: http://www.eff.org/legal/cases/Barrett_v_Rosenthal/

Trial, Nov. 5th and 5th, 2007

Having submitted a Plaintiff's Statement of the Case on October 22nd, 2007, and we went to trial on November 5th. The trial took two days, with witnesses including myself and the owner of the corporation that used my photos. Other witnesses that appeared on their behalf included Pauline Fisher (identified as being with Law Title of Brooklyn Center, MN) and Chris Richardson (identified as being with ING Mortgage).

Judgment

The court found the other party obtained the photos from my website, and willfully infringed my copyright. All the counterclaims against me were dismissed with prejudice. Below are some excerpts from the judgment:

The Court finds there is no credible evidence to support a belief that "Zubitskiy" exists or was the source of the controverted photos...(Findings of Fact no. 13)...Defendants...procured them from Plaintiff's website (Findings of Fact no. 17).

Under [17 U.S.C.] § 1203(c)(3)(b)...The Court awards Plaintiff $5,000 for Defendants' willful removal of the digitally embedded watermark in the Skyline photo (Conclusions of Law, pp. 14).

As it relates to all of the individual counterclaims...Plaintiff is not liable for third-party comments posted on his website (Conclusions of Law, pp. 16).

...Defendants did not identify any specific comments by Plaintiff that were false. Accordingly, Defendants have not shown that Plaintiff is liable for interference with existing or prospective contractual relationships (Conclusions of Law, pp. 17, 18).

In exchange for their agreement to pay a portion of my court costs, I also agreed to remove their name from this webpage while they are completing the payment plan.