Photography Copyright Lawsuit (06-cv-01164, D. Minn.)
web page has a chronology of litigation between
myself and a Twin Cities corporation who published
photos on mine without permission and sued me for
defamation. I prevailed after trial and they paid
a federal judgment.
On May 28th, 2009, I filed a lawsuit for
malicious prosecution and
abuse of process
against the other party and the attorneys
that represented them because I was sued based on a
forged document/baseless claims.
A local business took the two photos at right
from this website and used them in a series of
advertisements. Collecting the licensing fee/damages
required going to federal court, where I
represented myself and won a judgment of $19,462.
I am an independent photographer and
the creator of this website. A local business published
two photos taken from this website in a series of ads.
I discovered the first photo (#2891
on this website) in May of 2005 when I saw their ad
on the inside cover of a Twin Cities phone book.
They would not pay the licensing fee.
I first wrote
that the other party was using a photo of mine without permission
on this webpage in September of 2005. The other party's
lawyer (Morgan Smith, at the time) demanded I remove the
webpage or face a lawsuit for defamation. I did not
comply, and they filed a defamation lawsuit against
me in Minnesota State Court.
The defamation lawsuit claimed that the photo
they published was not mine, but was taken by a photographer named
"Michael Zubitskiy". They then purchased the rights from Zubitkiy,
shown in a sales agreement
notarized by Vladimir Kazaryan.
I filed a lawsuit
for copyright infringement against them in federal court
in March of 2006. They filed several counterclaims, such as trademark infringement. A
was issued on February 15th, 2008. Below are the full details.
Chronology of events
||I took the photo shown at right on Jan. 8th, 2004.
I published it on this website Jan. 13th.
I licensed it to MPLS/St.Paul Magazine in April of that year.
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
After six months overseas,
I returned to the United States in April, 2005.
My photo #2891
||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.
|June 6th, 2005
||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.
|June 20th, 2005
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.
|August 17th, 2005
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
|Sept. 3rd, 2005
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
|January 13th, 2006
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).
|January 23th, 2006
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
Q: Who do you believe owns the copyright to that photo?
A: Michael Zubitskiy
copyright infringement lawsuit|
|March 27th, 2006
||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).
|April 10th, 2006
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."
|April 24th, 2006
||[Their] attorney in the
state court defamation complaint, Morgan Smith,
filed a proposed amended Complaint.
|April 25th, 2006
||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.
|April 26th, 2006
||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?".
|May 10th, 2006
||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.
|May 13th, 2006
||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.
|May 18th, 2006
||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.
|May 26th, 2006
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.
|June 26th, 2006
||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.
|August 16th, 2006
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.
|August 28th, 2006
||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.|
|September 18th 2006
||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|
|October 27th, 2006
||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.
|November 7th 2006
||Judge Montgomery issued an order
denying the other side's motion for injunctive relief,
writing in part that
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
(the other party provides real estate and financial services).
|November 16th 2006
||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.
|November 17th 2006
||A hearing was held on my motion to
dismiss their six counterclaims against me
over this webpage:
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.
- Deceptive trade practices
- Trademark infringement
- Interference with Contractual Relationships
- Appropriate of Name and Likeness
- Injunction against further disparagement and infringement
- Unjust enrichment in excess of $100,000
|November 30th 2006
||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.
|January 11th, 2007
||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.
|January 15th, 2007
||Discovery of a second
photo published without permission
||My photo #2558
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
||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).
Comparison of my website photo
and the photo given to the
phone book company
|April 5th, 2007
||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...".
|April 23rd, 2007
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.
|May 3rd, 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.
|June 29th, 2007
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.
|August 3rd, 2007
||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
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
- 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
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.
|August 15th 2007
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.
|August 31st, 2007
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):
Defendants are liable for copyright infringement:
||GRANTED||will proceed to
trial on the amount of damages|
|Gregerson is not liable for trademark infringement:
||GRANTED||will not proceed further|
|Gregerson is not liable for unjust enrichment:
||GRANTED||will not proceed further |
|Owner of the infringing corporation is dismissed from the case:
||GRANTED || (I disagree with this ruling)|
|Gregerson is not liable for appropriation of likeness:
||DENIED*||will proceed to trial|
|Gregerson is not liable for deceptive trade practices:
||DENIED**||will proceed to trial|
|Gregerson is not liable for interference with contractual relations:
||DENIED**||will proceed to trial|
The other side in this litigation is a corporation with a sole
owner and board member; he claims my use of his photo on this
website is an unlawful appropriation of his likeness for my
own personal gain. I believe the use is
fully protected by the First Amendment.
other party claims this webpage
unlawfully interferes with their contractual relationships
("interference with contractual relations") and
harm their business or trade ("deceptive trade practices")
The court allowed claims against me for
"deceptive trade practices" and "interference with contractual
relations" over this webpage to proceed to trial:
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.
--pp.11, 12, August 31st Memorandum Opinion and Order
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:
|November 5th and 6th, 2007
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).
|November 26th, 2007
||I submitted my Plaintiff's
Proposed Findings of Fact and Conclusions of Law.
|February 15th, 2008
Judge Ann D. Montgomery issued her verdict:
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).
|February 25th, 2008
||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.
|February 29th, 2008
||I notified the
Minnesota Department of Commerce, Market Assurance Division,
about the judgment in the case and the other party's
refusal to pay.
|March 13th, 2008
||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.
|April 9th, 2008
||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.
As of late 2008, the other party in this dispute
paid the federal judgment awarded to me. The comments portion
of this web page has been temporarily removed. On May 28th, 2009,
I filed a lawsuit for
malicious prosecution against the other party and the
attorneys that represented them, Morgan Smith and Boris Parker,
and these attorney's law firms,
Bassford Releme, Saliterman & Siefferman, and Smith & Raver.
The notary who notarized the Zubitskiy sales agreement is
also named as a defendant for aiding and abetting.
If you want to communicate with me, I can be reached by email at
This page last modified on 2010-11-13