Law of Cards: Leaf Trading and "Brain Gray" Accused of Copyright Infringement

Law of Cards: Leaf Trading and “Brain Gray” Accused of Copyright Infringement

Last week, a photographer named Barry Rosen sued Leaf Trading, "Brain" Gray and others for allegedly infringing his registered copyrights on two photographs of Daisy Fuentes and another of Ali Landry. The alleged infringements occurred between 2013 and 2014…and I'd like to be able to tell you what the allegedly infringing items are, or what the original photographs look like, BUT, it appears Mr. Rosen did not attach pictures of them to the complaint.

Legal aside: Mr. Rosen does state in Paragraph 7 that his evidence is attached as Exhibit A…but, Exhibit A apparently did not make it on to the PACER database.

It's also vague from the complaint as to what the alleged infringing items are. It appears the alleged Fuentes infringements might be based on the sales of two individual items (as compared to two product lines). The Ali Landry accusations, however, look to focus on an art card allegedly based on one of Mr. Rosen's photographs.

Without more information (like photos to compare with the alleged infringing items), it's difficult for me to weigh in more on the merits of the suit.

There are two general things to note about the suit, though.

First, the lawsuit was filed pro se by Mr. Rosen.

Legal translation: He filed the suit by himself, he did not use a lawyer.

I gnash my teeth at pro se intellectual property filings. Procedurally, there are so many ways to screw up a case, especially a federal case in the Central District of California, and that's before a court would even address the merits. And while pro se filings generally aren't bad, if they contain too many errors or look sloppy, I find that attaches a stigma to the case.

Case in point: it doesn't help that Mr. Rosen spelled one of the defendants' names "Brain Gray" instead of "Brian Gray" in the caption. It also doesn't help that instead of correcting that error in WORD and re-printing the first page, someone just scribbled out the "AI" and handwrote…well…something…that might be an "IA." But, what's even worse is that in Paragraph 9 of the complaint, where it names this particular defendant, it still states, "Brain Gray."

Law of Cards- Leaf Trading and %22Brain Gray%22 Accused of Copyright Infringement

Besides being sloppy, if you can't get a defendant’s name right, that's a problem for the lawsuit.

Second, while this specific case looks small (perhaps as little as three infringing items), what's interesting is that this isn't Mr. Rosen's first copyright infringement case. A search of Justia Dockets shows he might have been involved in as many as 41 other copyright suits filed since 2007. This, by itself, doesn’t mean much…perhaps his works are stolen/copied quite a bit…

But, the combination of being a pro se plaintiff, failing to attach "the evidence" of the case, drafting a complaint containing sloppy typos and also being associated with a multitude of other copyright infringement lawsuits (especially when in at least one of those suits he was accused of making mistakes involving…Daisy Fuentes images) might not bode well for Mr. Rosen.

Still, because this is a small copyright infringement action, I'd imagine it disappears for a small, confidential payment in less than six months, regardless as to the merits of the case.

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Paul Lesko

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Paul Lesko has litigated complex and intellectual property actions for over 18 years. Don’t hold the fact that Paul is a lawyer against him, he’s also a rabid baseball and college basketball fan, and an avid card collector. He’s also the author of the novel Gastric Bypass, available for purchase at Amazon. Paul can be found on Twitter @Paul_Lesko and Google+.


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