So, here is the case #1:12-cv-22211-JLK, Raanan Katz v. Google Inc. et al, case , filed on Tuesday, June 12, 2012.
On March 11, 2013 Raanan Katz filed Motion to Strike the Affirmative Defenses to his Amended Complaint. In other words, Raanan Katz was trying to "elect" his favorite court strategy "Let me get DEFAULT"
On Friday, April 12, Response in Opposition to Plaintiff's (Raanan Katz) Motion to Strike Affirmative Defenses was filed and here are some key points.
"This is a frivolous copyright case, in which the Plaintiff (Raanan Katz) purports to have acquired the copyright to a photograph of the Plaintiff and alleges that the Defendant violated his copyright when she posted the photograph on her blog...
a. Unclean Hands (Affirmative Defense No. 4.)
Plaintiff (Raanan Katz) admitted at deposition that he allegedly acquired the copyright and brought this clam for purposes of causing Defendant to stop blogging about him. This was also admitted in a letter he wrote to the alleged photographer. Plaintiffs (Raanan Katz) not claiming that he lost any economic value of the photograph itself and has alleged no plans, much less the ability, to commercially exploit the photograph. Plaintiff (Raanan Katz) did not contact the alleged photographer to complain about the photograph until after he saw the photo in the blog, even though he had seen the photograph earlier on 'Haaretz.com.' (Ex. A, Katz Depo. at 83:12-16 - 84:1.) As Plaintiff (Raanan Katz) admitted at deposition, the "[o]nly reason we try to do it to make sure that - that [Defendant] will stop using this nonsense." (Ex. A, Katz Depo. at 150:9-15.) He admitted that the "only reason" he contacted the photographer "is because I saw the blog ... If he don't have a blog, I would've not have —I would leave it alone, it's a joke." (Id. at 78:12-19.) Katz also wrote the alleged photographer that he wanted the assignment of copyright because his attorney is trying to legally eliminate the harassment by very bad Russian people." (Ex. B.) Even after 'Haaretz.com' published the photograph following the filing of this lawsuit, Plaintiff (Raanan Katz) never wrote it to demand that it be taken down. (Ex. A, Katz Depo. at 125:14-2 1.) Thus, the sole purpose of acquiring the copyright and bringing this action is to open another front in his (Raanan Katz) ongoing effort to shut down Defendant's blog...
g. Misuse (Affirmative Defense No. 1)
Courts have held that copyright misuse can be found where the plaintiff seeks to leverage the copyright to undermine invention and creative expression. See Shloss v. Sweeney, 515 F. Supp. 2d 1068, 1080 (N.D. Cal. 2007). As discussed herein, this action is brought solely to suppress Defendant's blog. Plaintiff (Raanan Katz) admitted that he did not complain about the photo or seek to acquire the copyright until it was posted on Defendant's blog. As admitted in an email, Plaintiff sought to use the copyright to contest the blog, which he complained was published by "these Russians:" "My attorney is trying to legally eliminate the harassment by very bad Russian people and your cooperation will be appreciated. These Russians are posting the picture on their blog every week in order to embarrass me .. ." (Ex. B.) In other correspondence, Plaintiff (Raanan Katz) admitted that the blogs were "news publications." (Ex. C.) This improper leverage to suppress news about business and litigation practices is a proper basis for the misuse affirmative defense.
i. Failure to Join (Affirmative Defense No. 6.)
This affirmative defense states that "Plaintiff has failed to join parties, including without limitation others claiming ownership of alleged copyright or copyrights asserted by Plaintiff (Raanan Katz) in this action, which are necessary for a full and complete adjudication of its claims, including, without limitation, as required by Rule 19 of the Federal Rules of Civil Procedure . . ." (D.E. 28 at 5.) Because of questions of Plaintiff's ownership of the copyright, the failure to join the actual owner is fatal to Plaintiff's claim. Plaintiff (Raanan Katz) alleges that he obtained "all right, title and interest, including all rights of copyright" in the subject image by "assignment." (D.E. 10 at 2.) Plaintiff (Raanan Katz) claims to have obtained a written assignment of the copyright from a photographer. However, Plaintiff (Raanan Katz) has been unable to produce an original of the assignment and has not established that the alleged assignor owned the copyright. Plaintiff (Raanan Katz) claims that this photograph was published on the 'Haaretz.com' website, (Ex. C), and it may belong to that organization or another person or entity, other than the alleged assignor. Notably, 'Haaretz.com' continued to publish the photograph even after the alleged assignment. (Ex. A, Katz Depo. at 125:14-21.)
n. Fraud (Affirmative Defense No. 11.)
The Fraud Affirmative Defense alleges that "Plaintiff knowingly procured the copyright(s) without authorization of the author and has misrepresented Plaintiff's rights." (D.E. 28 at 6.) Plaintiff claims that he acquired the copyright from the photographer, but no original of the assignment has been produced, and it has not been established that the alleged assignor is the actual owner of the copyright.
o. Standing (Affirmative Defense No. 12.)
This affirmative defense states "Plaintiff does not own a copyright to the photograph and has no standing to maintain this action.. . ." (D.E. 28 at 6-7.) Plaintiff (Raanan Katz) claims to have obtained the copyright from the photographer. Plaintiff has failed to produce an Original of the assignment agreement. Moreover, Plaintiff (Raanan Katz) failed to investigate whether the assignor was actually the copyright owner, if in fact he was the actual photographer. Notably, the photograph was originally publicized by 'Haaretz.com', but no assignment for 'Haaretz.com' has been produced. Nor has it been disclosed what the arrangement was between 'Haaretz.com' and the photographer regarding ownership of the copyright. Plaintiffs "must meet the statutory standing requirement contained in the Copyright Act of 1976, 17 U.S.C. § 501 (b), which provides that only the legal or beneficial owner of an 'exclusive right' has standing to bring a copyright infringement action in a United States court." Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1290-91 (1 lth Cir. 2011). Plaintiff accordingly lacks standing to bring this claim.
IV. Conclusion
This action is unambiguously another front in Plaintiffs (Raanan Katz) SLAPP litigation against an admitted news publication. Plaintiff (Raanan Katz) has suffered no harm other than thinking a photograph, in which he is well and appropriately clothed, somehow depicts him as underdressed. In Plaintiff's mind, the photograph is a 'joke." He acquired the copyright solely in an attempt to shut down the blog..."
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| raanan katz and alan kluger |
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