South Florida lawyers Daniel Lustig, Michael J. Pike and Dominique Torsiello claim award-winning Texas photographer Tom Hussey framed their client with a copyright infringement lawsuit over an unregistered photo.
Hussey sued Florida resident Charles Ngo for damages in October 2018, alleging he unlawfully reproduced a photo from his “Reflections” series, depicting elderly people gazing at a reflection of their younger selves in the mirror.
Ngo allegedly used one of the “Reflections” images without permission on his website, which promotes his teaching of online business and marketing courses.
The photo shows an old, bearded man leaning on the bathroom sink to look at a mirror, where a fresh-faced and clean-shaven version of himself smiles back. It was registered with the U.S. Copyright Office in June 2009 — or so Hussey’s complaint claimed.
In a motion for summary judgment filed in the Southern District of Florida, defense lawyers Lustig and Pike accused the plaintiff of abusing the judicial system, along with third-party company ImageRights International Inc., which collects 40 percent of Hussey’s pre-suit recoveries.
“Mirror, mirror, what do I see, an outright fraud on the court is the only ‘Reflection’ to see,” the motion began.
Hussey and his lawyer Julian A. Jackson-Fannin of Duane Morris in Miami did not respond to a request for comment, while ImageRights spokesperson Joe Naylor was unavailable before deadline.
While many of Hussey’s photos are protected by copyright registration, the defense claims the one he sued over is not — pointing to a certificate of registration attached to Hussey’s complaint that doesn’t encompass the photo at issue.
The motion claims that when deposed, the plaintiff revealed he didn’t remember the exact date the image was made, only that it was during the early to mid-2000s, and that he also didn’t recall if he’d registered any works prior to 2009.
Ngo accuses Hussey of wasting his time and money, claiming Hussey reviewed more than 2,000 photographs connected to his certificate of copyright, and none of them matched the photo in the lawsuit.
“The court cannot allow plaintiff to continue on this charade,” the motion said. “Incredibly, even after it was established that neither plaintiff’s image nor any photographs that would have resulted in the creation of said image were part of the deposit with the Copyright Office, plaintiff elected to move forward with taking a seven-hour deposition of Mr. Ngo.”
Hussey also brought three other lawsuits spanning three districts over the same photo — two of which settled for $25,000 and $5,000, according to the defendant’s motion.
Read the defendant’s motion for summary judgment:
“After years of using the same image and registration to file lawsuits and make claims, the case resolved after our summary judgment was filed,” Lustig said. “But for our efforts and Mr. Ngo’s determination, who knows how many other lawsuits would have been filed using the same registration and image?”
Hussey testified that he’s filed at least 80 copyright lawsuits in total, but the defense includes no evidence of any issues with copyright registrations in those cases.
“No doubt there are others who may feel they were taken to the cleaners by the pressure and expense of a copyright lawsuit,” Pike said. “A valid claim of copyright is necessary when bringing an action seeking statutory damages and thousands of dollars in attorney fees.”
Hussey is renowned in his field, having spent more than 20 years working on advertising campaigns for various Fortune 500 companies, according to his complaint, which said he was also named among the “Top 10 creatives in the world” by Adweek Magazine in 2011.
Hussey’s lawsuit seeks compensatory and statutory damages of up to $150,000, as well as interest, attorney fees, costs and a permanent injunction against Ngo.
Ngo, on the other hand, has asked the court to drop the suit with prejudice and allow him to move for attorney fees and costs.
More copyright stories: