Zaiger files Motion to Dismiss: Monsarrat v Zaiger

Zaiger files Motion to Dismiss: Monsarrat v Zaiger
by Susan Basko, Esq.

Brian Zaiger filed a Motion to Dismiss Jonathan Monsarrat's Copyright Infringement Complaint.  One of Zaiger's reasons was that the Statute of Limitations has run.  Elsewhere in his Motion, Zaiger states that the allegedly infringing materials were removed from Encyclopedia Dramatica (ED) in April 2017.

Copyright claims must be made within 3 years of the accrual of the claim.  The law gives no guidance as to what "accrual" means.  Courts have developed what is called a "separate accrual" rule.  This means that each time the item is newly distributed or copied, a fresh copyright infringement takes place.  This is also called a rolling accrual.  The offending materials were on ED as recently as April 2017, which would give Monsarrat until April of 2020 to file his lawsuit.  The court looks back from the date of the filing of the lawsuit and sees if any fresh distribution or copying has taken place within the prior 3 years.  A website is a fresh distribution each time any person opens the URL to look at it.  However, a plaintiff can only get damages extending back three years, even if the material was infringed for many years before that.  The timing of when the statute of limitations would toll is often different from the maximum three year time limit on which damages may be sought; these are two different calculations.

Another basis for Zaiger's motion is that his use of the infringing materials is Fair Use and that his website is parody.  Encyclopedia Dramatica is a website that features obscene photos of anuses -- variations on the infamous "goatse" and other photos with no artistic redeeming value.  It is a vile and disgusting site.  This is not parody.  There is not Fair Use that involves the right to place photos of any person onto an obscene website or to use photos to cyberstalk and defame.  Fair Use is not set in stone, but is determined case by case on a set or principles.  Advancing obscenity, advancing defamation, and cyberstalking are not among the principles of Fair Use.  The principles of Fair Use are to advance such things as analysis and critique, use in humor, use in religious ceremonies, use as examples in bonafide educational settings, and de minimis use in other works.  Placing someone's copyright registered materials into a shocking obscene website filled with scandalous defamation and promotion of lewd materials is not likely going to be deemed a Fair Use.

While parody is a Fair Use, it is also well-defined. Creating actual parody requires a knowledge of what it is and a deft creativity that transforms or juxtaposes the Copyright-imbued material with elements that create a secondary meaning.  The stuff on Encyclopedia Dramatica is not parody; it is invasion of privacy, defamation, non-humorous derision meant to extort, coerce, or damage a reputation, all placed into a setting rife with obscenity.

Another factor that makes the stuff on Encyclopedia Dramatica other than parody is that Zaiger has the site set up so that each victim has their own "page" on the site, in their name.  Then, any of the malicious users are invited to post their own lies, photoshopped images, derision, and stalking against that person.  Parody is created as an intentional, creative, thought-out, well-shaped work.  On the contrary, Encyclopedia Dramatica is a dumping ground for any hateful trash spewed out by an assortment of hackers, doxers, stalkers, and deranged personas.

Further removing Encyclopedia Dramatica from any possibility of being parody is that it is set up to look like an online encyclopedia and that it has very strong SEO.  The site shows up in the top of any google search and looks like an authoritative website.  The lies and filth written about the victims on the pages are presented without any humor or creativity.  It is a heavy-handed smear website made to look like an official source of information.

Another thing that makes Encyclopedia Dramatica something other than parody is that the victims of the site have their names sullied by being associated with all this shocking obscenity and piles and piles of character assassinations.  This might be a smear site.  It might be an extortion site.  It is not parody or satire.

Note: I have suggested to the people of Encyclopedia Dramatica that they should have memberships and then all the members could post whatever they want about each other.  Dragging others into their cesspool of hate and filth is not acceptable.

Brian Zaiger advances other reasons why the Complaint should be dismissed, including claiming that Monsarrat does not own Copyright on the materials and /or that the materials cannot have copyright.  When a person registers Copyright, there is a presumption that they own a valid copyright.  It will be an uphill battle to prove otherwise.  Zaiger argues that because Monsarrat appears in the photos, he could not be the author of them.  In this age of selfies and timed cameras, many people are taking pictures of themselves and/or themselves with others.  Further, it may not always be the person that clicks the electronic "shutter" button that authors a photo.  The author can very well be the person who is the "art director," composing and arranging the subjects and having someone else click the shutter.  Take for example in filmmaking, where there may be a Camera Operator and a Director of Photography.  The Camera Operator runs the camera to capture the images and movement set up and arranged by the Director of Photography, or DP.  Which one gets to take credit for what appears on screen?  The Director of Photography.  On a much smaller level, if you and your friends or family are in a tourist spot and you hand your camera or phone to a stranger to take a picture of your group after you all get arranged for a picture, do you think that stranger can come along and claim Copyright ownership over the picture?  Do you think that stranger can prevent you from using the picture or charge you for it?  No, they cannot.  You and your party have traveled to the location, arranged yourselves in front of the scenery, provided the camera or phone, and the stranger agreed to click the shutter.  There is no Work for Hire agreement signed in advance by the stranger who clicked your camera; there does not need to be.  You own the picture because you are the Director of Photography of your own little family vacation photo. The person clicking the shutter is working at your direction to create what you want and with an implied agreement that they are doing so for free, as a favor, and they have no expectation of remuneration or copyright ownership.  Further, the stranger could take a great photo that is cherished forever, or they could have a shaky hand and take a blurry mess, but you could not sue them for failing to do the job right.  There is simply no obligation on either side, other than the stranger must return your camera to you after taking the pictures.

Once again, Zaiger's lawyers are misusing court filings as a way to defame the Plaintiff.  In this filing, they claim that Monsarrat has been deemed "creepy" and then diagnose him as a "hebephile," without any evidence to support this and with no professional expert making such a determination -- just the defendant and his lawyers.  A hebephile is a person mainly sexually attracted to children in the age range of 11 to 14 years old.

In the memo, Zaiger's lawyers have reiterated an alleged email from many years ago, in which Jonathon Monsarrat awkwardly and over-eagerly asked a grown woman named Hannah Rosenbaum on a date. Ms. Rosenbaum decided the just desserts for a man being awkward in making an invitation to a date was to forever memorialize his emails on an obscene, sickening website and to mock and degrade him forevermore.  (And such women often wonder why they are not asked on dates.)   This whole thing adds up to that Jonathan Monsarrat is most likely going to have to file yet another Motion to Strike Zaiger's scurrilous and scandalous pleadings.

Brian Zaiger's court pleadings mirror the irresponsible classless style of Encyclopedia Dramatica.  However, the Court is not run the way ED is, and it will be interesting to see how much Chief Judge Patti Saris tolerates before issuing sanctions.  My guess is not much more.

It will be interesting to read Jonathan Monsarrat's response to the Motion.

This is the Motion to Dismiss.  It is short, leaving the arguments for the longer Memo, shown further below.



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