gregerson.org

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.

I got a new phone book for Minneapolis, and saw my photo on the inside cover. It was in the lower-left corner of the advertisement shown at right.

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.

I mailed a letter to the other party, informing them that a licensing fee was due for their commercial use of my photo in their corporation's advertising. I explained that I took the photo, own the copyright, and have a business licensing my work. I described how the licensing fee is calculated and gave them the sources for all of my information. I further warned them that I would go to court if the fee was not paid by June 20th.

Having received no response from them, I called and spoke to the owner, I told him I would be filing a conciliation court case against them the next day.

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.

On the day of the hearing, the other party came with a lawyer, Morgan Smith (of Smith & Raver, LLP). They produced a sales agreement with the name and signature "Michael Zubitskiy". This was offered this as proof they owned the rights to my photo. Morgan Smith asked the judge to dismiss my claim because it involved copyright, which is under the jurisdiction of federal courts. The judge dismissed my claim from small claims court, with the option left open to file it in federal court.

Note: I had sought $5,000 in small claims court; when I later went to federal court, I was awarded almost $20,000.

On September 3rd, 2005, I wrote the first version of this webpage and published it here. Within a week, a reader pointed out other unauthorized uses of my photo, and people began posting comments on this page about their own negative experiences with the other party.

Richard Raver (of Smith & Raver, LLP) wrote to me on October 4th, 2005, demanding I remove this entire webpage or face a lawsuit for libel. The letter did not identify anything that was false. Judge Mark Wernick later wrote (on April 10th, 2006):

"...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."

I filed a motion to dismiss the defamation lawsuit.

I began to investigate the "Zubitskiy photo agreement" that the other party provided as proof they bought my photos from someone named Michael Zubitskiy. A background check showed there is nobody by the name Michael Zubitskiy in the United States (no credit record, driver's license, etc.). The other side was not able to produce any contact information for Zubitskiy, or the original photos they obtained from him.

My motion to dismiss the defamation lawsuit was heard before Judge Mark Wernick. The Judge said the motion had force and he questioned their motives for bringing this case. He ordered their attorney, Morgan Smith, to file a reply brief (he had failed to do so).

I filed a motion for sanctions based on the other party's use of the Zubitskiy sales agreement as evidence in their defamation lawsuit against me. I outlined the evidence showing this person doesn't exist. The judge postponed any hearing on this motion, saying it was premature. He later wrote (on April 10th, 2006):

"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...".

I deposed the owner of the company who infringed my photos. He maintained the photos were not mine, but were taken by "Michael Zubitskiy".

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

I filed a federal lawsuit for copyright infringement against the other party (case no. 06-cv-1164 ADM/AJB). They were represented in the federal lawsuit by Boris Parker (at the time with Saliterman & Siefferman, but later Bassford Remele, P.A. and now Parker & Wenner, P.A.).

Boris Parker filed a motion to dismiss my suit for "failure to state a claim", arguing that his client's publication of my photo in their phone book advertisement was not commercial (needless to say, this didn't work).

Judge Mark Wernick issued an order on my motion to dismiss the state court defamation claim against me. He ruled that the other side must file an amended Complaint by April 20th, 2006. He wrote, in part:

• "[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."

[Their] attorney in the state court defamation complaint, Morgan Smith, filed a proposed amended Complaint.

I received notice that Morgan Smith had withdrawn from the case.

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.

I served a motion for summary judgment in the state defamation case to Boris Parker. Thirty minutes later, he filed his notice of dismissal of the case with the court clerk. This is significant because you generally can't dismiss a case (and preserve the right to re-file) it after the other party has filed a motion for summary judgment.

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?".

Minnesota District Court Judge Mark Wernick issued an order stating that the other party's dismissal of its defamation lawsuit against me was not proper, both because it was filed too late and because they are a corporation, and it was only signed by the owner and sole board member, not an attorney; a corporation must be represented by an attorney, and their papers must be signed by that attorney.

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

Boris Parker filed a memorandum of law supporting the dismissal of my copyright lawsuit against his client. He argued that their use of my photo falls under "fair use", writing "It is clear that [they] did not use the photograph for a commercial purpose". The photo was used in a series of advertisements.

Morgan Smith, the attorney for the other side in their defamation lawsuit, apparently hired Karen Runyon, a handwriting expert, to write a report on the Zubitskiy Photo Agreement (I had alleged the signature of Zubitskiy was forged, and her report was inconclusive). This resulted in Hennepin County Conciliation Court case no. 060518105:

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.

A status conference was held before Judge Wernick. Boris Parker said he wanted to remove the defamation case against me to federal court and join it to my copyright infringement claim. They filed a notice of removal under 28 U.S.C. § 1441 and 1446, a statute that permits a defendant to request removal (they were the Plaintiff). I raised an objection with the state and federal court, and filed a motion to remand the case.

A hearing was held in Federal Court on the other party's motion to dismiss my copyright lawsuit. It was heard by the Honorable Ann D. Montgomery, Judge of District Court.

Judge Montgomery ruled against the motion to dismiss my copyright lawsuit, and also against my motion to remand the defamation case back to Minnesota state court. She wrote that while the removal statute does not permit their removal, federal jurisdiction exists and I failed to raise an objection when the subject came up at a status conference.

The other party filed an Answer to my copyright infringement suit, and six counterclaim (a counter-suit). They denied publishing my photo and made counterclaims of defamation, trademark infringement, deceptive trade practices, unjust enrichment, appropriation of name and likeness, and interference with prospective contractual relations.

I filed a motion to dismiss their counterclaims under Minnesota's anti-SLAPP statute, 554.01 et seq. and Federal Rules of Civil Procedure 12(b)(6). The statue can be read here:

I later filed a memorandum of law supporting the above motion, which can be found on PACER

A hearing was held before the Honorable Ann D. Montgomery on the other side's motion for injunctive relief, seeking to prevent me from using their name on this webpage. This is referred to as "prior restraint" and is usually considered unconstitutional and almost never granted.

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.

Judge Montgomery issued an order denying the other side's motion for injunctive relief, writing in part that:

"...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 other party provides real estate and financial services).

I served subpoenas to further show there is no person named Michael Zubitskiy. The other side filed a motion to quash my subpoenas, with their lawyer,Boris Parker, arguing:

"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."

The Zubitskiy photo agreement was exhibit A in the defamation lawsuit against me, filed over a year ago and now joined to this federal litigation.

A hearing was held on my motion to dismiss their six counterclaims against me over this webpage:

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

I argued that these causes of action failed to state a valid legal claim, as they did not specifically allege anything on my webpage was factually incorrect. Judge Montgomery ruled from the bench denying my motion and allowing all six claims over this webpage to proceed.

A hearing was held on the other party's motion to quash my subpoenas to prove their source for my photos, "Michael Zubitskiy", does not exits. Magistrate Judge Arthur Boylan questioned their standing to object to subpoenas to third parties, such as Qwest, who have not objected to the subpoena.

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

A former employee of the other party was deposed, and testified that he saw the "Zubitskiy photo agreement" in the printer tray at work in June of 2005 unsigned, but back-dated to March 19th, 2004. June of 2005 is when I sent my letter demanding payment for the licensing fees for my photo.

Discovery of a second photo published without permission

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.

I left for a one-month trip to visit family in the Philippines. Shortly before leaving, Dex Media gave me a copy of the photo that the other party provided to them, which matches my photo pixel-per-pixel (right).

Vladimir Kazaryan, the employee who notarized the bogus "Zubitskiy photo agreement", signed a consent order with the Minnesota Department of Commerce to give up his commission as a notary public. I had complained to the Department of Commerce, Market Assurance Division, because there is no such person as Zubitskiy. The consent order states the "The Commissioner...is prepared to commence formal action...based on allegations that Respondent notarized a fraudulent document..."

The other party filed a motion to compel discovery, asking the court to order me to turn over correspondence between myself and an attorney I sought advice from (which is protected by attorney-client privilege). They further wanted to copy all my hard drives, my tax returns, and all email I've sent or received that mentions them (or witnesses in the case) by name. This motion was heard April 23rd, 2007.

Magistrate Judge Arthur J. Boylan ruled that the other party cannot copy my computer hard drives and I do not have to produce email between myself and my attorney. However, I must turn over the requested email. I sent their attorney a DVD with over 500 emails. Later, when the case was at trial, their attorney cross-examined me on these emails, but it merely showed my version of events.

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.

The owner/operator of the business that infringed on my photos filed a motion for summary judgment to remove him from this litigation as an individual. I cited his "vicarious liability" under Pinkham v. Sara Lee (having a supervisory role, being directly involved, and standing to benefit financialy).

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.

My motion for summary judgment was heard in US District Court. Their defamation lawsuit against me over this webpage was WITHDRAWN at the hearing. I argued that the matter has been litigated for 18 months and an earlier judge ruled it was too late for withdraw; I wanted a ruling in my favor. The judge granted their request to withdraw the claim.

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).

I submitted my Plaintiff's Proposed Findings of Fact and Conclusions of Law.

Judgment

Judge Ann D. Montgomery issued her verdict: Findings of Fact, Conclusions of Law, and Order for Judgment, 06-cv-01164. I was awarded $4,462.00 for actual damages of the Skyline photo, $10,000 for statutory damages for (willful) infringement of the Kenwood photo, and $5,000 for the removal of my copyright management information from the Skyline photo.

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).

The other party would not agree to pay the judgment. I submitted the case to Slashdot, as well as my local newspaper, both of whom published it.

I notified the Minnesota Department of Commerce, Market Assurance Division, about the judgment in the case and the other party's refusal to pay.

The other party in the case appeared to cease operations and start a new corporation. I began preparing a motion to join the other party's new corporate identity to the judgment for the purpose of collection under Fed. R. Civ. P. 25(c),Transfer of Interest.

Subpoenas were served to several parties to uncover assets of the other party, as well as show a transfer of interest from the other party's old corporate identify to their new corporate identity. Their attorney, Boris Parker, filed a notice of substitution of counsel, stating he is now with the firm of Parker & Wenner, Professional Association.

The other party and I agreed to a six-month payment plan to pay off the judgment against them. Upon receiving the first check (which later cleared), and documentation they can complete the payment plan, I withdrew my subpoenas for collection of the judgment.

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.