Photog Claiming LA Times Copyright Infringement Denied Day in Court by Arbitration Agreement

By Conor Risch

David Strick, the photographer who last spring sued the Los Angeles Times and its parent, the Tribune Company, for more than 500 individual acts of copyright infringement, has suffered a setback in his battle to have the case tried in a Federal District Court, and Strick is in danger of seeing his case dismissed on a technicality. In April, the court refused to hear Strick’s suit  because his contract with the Times stipulated that any disputes would be decided through private mediation and arbitration. Now, an arbitrator has dismissed Strick’s case on a technicality.

Strick’s case should serve as cautionary tale for photographers entering into agreements with corporations that insist that disputes be settled by private arbitrators rather than a court of law. “I am devastated by today’s ruling by Judge Lichtman, our JAMS arbitrator, and feel that I have truly been denied 'my day in court' as the merits of this case have yet to be heard,” Strick said in a statement issued following the arbitrator’s ruling.

A veteran Hollywood photographer, Strick had a contract with the Times from 2007 until 2010, providing them with behind-the-scenes style documentary photographs taken on movie sets. The Times terminated their contract with Strick on May 28, 2010. At that time there were images from several stories Strick shot on the Times’ FTP (file transfer protocol) site that had not yet been accepted for publication. (Due to the often-lengthy post-production and release schedules of Hollywood movies, images Strick made for the Times would often appear several months after Strick shot them, so publication coincided with a film’s release.)

When his contract was terminated, Strick’s lawyer, Karen Moskowitz, wrote to the Times asserting his copyright for the unpublished images and informing the Times that Strick would pursue damages if the Times published any of the images. The Times responded by insisting that they had the right “by implication” to publish any of the images Strick uploaded to their FTP site, as per their agreement with the photographer.

Despite the warning he sent to the Times, Strick’s previously unpublished images began appearing on the Times’ site and on other Tribune Company-owned Web sites. Strick’s lawyer sent cease and desist letters to the Times. When those went ignored, Strick and his lawyer filed a copyright infringement case with a Federal District Court in Los Angeles on May 11, 2011.

A federal judge, Consuelo B. Marshall, refused to hear Strick's infringement case, ruling on October 25, 2011 that it was a matter for arbitration instead. A two-page arbitration provision attached to Strick’s agreement with the Times stipulated that any disputes between the two parties would be settled through mediation and private arbitration.

Arbitration is a system that allows parties to settle disputes outside of court through a hearing arranged by a private company. Private arbitrators are often retired judges or lawyers, who are paid for their time by the parties engaged in the dispute.

There are “mixed feelings” about arbitration, says Nancy E. Wolff, an attorney who specializes in visual arts, digital media and entertainment law. “The idea of arbitration is that it's an alternative to suit resolution by the courts and, in theory, it should be less expensive, less burdensome, and more streamlined and speedy.”

But, Wolff adds, “some of the costly aspects of federal court litigation are creeping into arbitration, like depositions.”

A recent article about arbitration on “The Copyright Zone,” a blog written by lawyer Edward Greenberg and photographer Jack Reznicki, argues that photographers and other creators should avoid signing any arbitration agreement, and calls the belief that arbitration is faster and cheaper than using the court system “a commonly held myth.” In arbitration, Greenberg and Reznicki argue, “it is not at all unusual for a party to incur $20,000–$40,000 in arbitration costs before any hearing on the merits ever commences.” (Greenberg represents Strick in New York and elected not to comment on the case.)

After the federal court refused to hear his case, Strick and the Times went to arbitration. A retired judge, Peter D. Lichtman, employed by an arbitration and mediation company called JAMS, heard procedural motions from Strick’s team and from lawyers for the Times on May 29, 2012.

Lichtman ruled that Strick had no right to a hearing on the merits of the case because of language in Strick’s agreement with the Times that stipulated that he would have to initiate arbitration within 90 days of filing a formal complaint with the Times.

At the hearing, the Times argued out that Strick's lawyer made his initial complaint in writing to the Times on September 8, 2010, and noted that Moskowitz informed them of Strick’s decision not to proceed with mediation or arbitration on November 10, 2010. When Strick initiated his demand for arbitration on December 5, 2011, it was well beyond a 90-day window stipulated in his contract with the Times. Lichtman agreed, ruling that the time limit on Strick’s ability to initiate arbitration had passed.

After warning the Times in September 2010 not to publish any more of Strick's images, Strick and Moskowitz elected not to pursue mediation or arbitration during the 90-day period because at the time no copyright infringement had occurred. And because it would have cost Strick tens of thousands of dollars to go to arbitration, he decided not to pursue his request that the Times delete his files from their database.

When the Times and other Tribune Company sites published Strick’s images, Strick and Moskowitz filed what they saw as a separate claim for copyright infringement in Federal District Court on May 11, 2011. When the court refused to hear the case, and forced Strick to arbitrate instead, he argued before the arbitrator that the copyright claim was filed within 90 days of the infringement. But the arbitrator agreed with the Times' argument that arbitration had to begin within 90 days of his initial complaint to the Times, so Strick's copyright claim was too late.

Strick and Moskowitz also initiated a motion to challenge the jurisdiction and arbitrability of his claims with the arbitrator, but Lichtman also found in favor of the Times on that issue as well, ruling as the federal judge had that the arbitration provision in Strick’s agreement applied to his copyright infringement claims.

Both sides shared the costs of arbitration under the terms of their agreement, and Strick’s cost for those proceedings was upwards of $20,000.

“It cost an obscene amount of money to not even get to have my day in court,” Strick told PDN. “Private arbitration is one of the things that large corporations insist on in their contracts routinely now, because it gives a huge advantage to the larger party with greater resources. It turns what would normally be every citizen’s right to a day in court into a question of how much justice can you afford." (Federal claims are also expensive to file, but attorneys will often take them on a contingency basis—that is, charging only if the plaintiff wins a damage award).

Now Strick and Moskowitz are working to figure out how to pursue the case. Another major drawback of arbitration is that an arbitrator’s decision is generally final. Only in very specific circumstances can parties appeal an arbitrator’s decision.

“We view this as an abject denial of due process and an access to justice issue that goes way beyond Mr. Strick individually and will set a precedent that may impact content providers everywhere,” Moskowitz said in a statement issued following Lichtman’s rulings, adding that the rulings “should highlight for all individual content providers how critical it is to delete any mandatory ‘take it or leave it’ pre-dispute arbitration provision from contracts with corporate entities until and unless the law governing our alternative, cost prohibitive private justice system is revisited by Congress.”

In a statement of his own, Strick called the decision “a technical ruling that allows a willful infringement to take place but bars me from redressing that infringement. It places what we believe is an incorrect interpretation of a procedural matter over the fundamental Constitutional right of copyright protection.”

The clause stipulating that the two parties settle any claims using a JAMS arbitrator, was presented as “take it or leave it,” Strick said. The arbitration provision also stipulated that a retired judge employed by JAMS hear and settle and disputes between the two parties. “They make you go with a specific company that the company that’s delivering the contract to you does repeat business with,” Strick adds. Thinking there would be no reason for a dispute, Strick signed the agreement (he has never been in another legal dispute during his 40-year career).

Strick also pointed out that the editors that he originally worked with at the Times had left the organization as it struggled financially in the past few years. “If the people that brought me into the Times were there, none of this would have happened,” Strick said. 

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