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Posts Tagged ‘Poling’

With prejudice is important.  It frequently indicates the court’s opinion of misconduct upon the part of the claimant and forbids both parties from filing another claim.

A settlement agreement was brokered by the magistrate, we imagine both parties got a piece of his mind, but especially the moving party.

Stipulations include:

  • Both parties responsible for their own cost and attorney fees.
  • Removal of and cease further disparaging or defaming remarks towards each other.
  • Hovey must file within 20 days, at her own expense, a disclaimer and forfeiture of her registration of her claim to copyright in the “Photograph”.

We suspect this did not work out quite as she hoped, out filing fees, attorney fees and loss of her copyright claim instead of $75k or more.

Two opinions:

  • We feel sorry that Poling got pulled into such a trivial matter and had to spend money.
  • People should remember that she was willing to risk giving up the identity and location of her witness during discovery in the hope to make some money off this suit.  We think that’s a violation of ABS rules, but who needs no stinkin rules when you are the Pres.  Fine hair to cut as she will cut it as part of a swerve, she never had to, but it would have happened if she continued down the path she had set in motion.  And that is how it will be spun, she nobly withdrew to prevent it – baloney.

We are outraged someone would put a witness, nay a bigfoot who posed for the best bigfoot picture ever, at risk that way.  Outraged, flabbergasted, shocked, chucklee  chucked.

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Last week Poling filed both an Answer and Counterclaim to Hovey’s federal lawsuit seeking in excess of $75,000 against Poling for his publication of the “bigfoot back shot” picture – aka the Photograph.  To boil it down:

Poling admits publishing the photo and then pretty much denies or has no knowledge of the rest of Hovey’s assertions.  One particular denial is that Hovey has no lawful right or interest in the Photograph, her registration is not valid and cannot be enforced.  He, by counsel, also identifies eight affirmative defenses and uses some of Hovey’s own postings to her blog and other words in support.  These include:

  1. Hovey has no right or interest in authorship or artistry of the Photograph and received no assignment of right, making her sworn claims of Copyright ownership as willfully false and fraudulent.
  2. Hovey allowed use of the Photograph freely for non-profit and educational purposes, which is what Poling did.
  3. The Photograph is of a costume, and is incorrectly characterized by Hovey as a live bigfoot.
  4. Hovey fails to state a claim upon which relief can be granted.
  5. Hovey has failed to join necessary parties.  (We read this as other’s did the same with the Photograph but Hovey did not act, or the necessary parties are the ABS – copyright on the photo says one thing, her registration is for herself).
  6. Hovey’s claims are barred because of unclean hands as a result of her own misconduct and wrongdoing.   (We think – hee, hee)
  7. Hoveys actions or in-actions amount to a waiver of her claims.
  8. Hovey violates the Ohio Revised Code prohibiting frivolous conduct in civil actions.

Poling then presents a Counterclaim as part of his answer, again using some of Hovey’s published, audio and visually recorded words.  His counterclaim alleges Hovey:

  • Falsely and fraudulently claims copyright ownership.  He references two exhibits of Hoveys words and deeds asserting she has widely and publicly admitted she has falsely claimed and registered her claim to copyright of the Photograph.  She falsely and fraudulently swore a claim to the Federal Court that she is the lawful owner.  Hovey has so lawful interest but has admittedly usurped this right form the owner and others who independently posses copies of the Photograph.  Hovey allowed others to use the Photograph but singled out Poling for litigation.  Her copyright and other claims are abject failures (great lawyereese there) and this was known by Hovey and counsel prior to their effecting service of the Complaint (we speculate this means Poling got a lawyer letter saying stop and making a monetary demand or we will sue and Poling told them to stuff it).  Because of the false and fraudulent claim Poling seeks legal fees and costs of at least $25,000.
  • Defamation   Hovey has repeatedly and with malice called Poling a “lair” and a “thief” in her blog.
  • Frivolous Conduct  Hovey brought this action for the express purpose of harassing Poling with this frivolous action.  Further the express purpose of this action to extort a settlement.  Hovey’s claims are not warranted and cannot be supported with a good faith argument of existing law, and it violates Ohio code which prohibits frivolous conduct.  Poling again asks for $25,000 for his costs, expenses and attorneys’  fees for defending Hovey’s claim and for more that can be reasonably accounted for and shown to the Court.

The other new document are notes regarding a telephone and email conference of the parties.  We can boil it down to Hovey desires more time for this mess to proceed and the chance to amend her claim, Poling wants it to move fast and at an administrative level of proceedings.  Both parties expect discovery to be lengthy, mostly because so much of the stuff is on the internet.

Things will likely slow to a crawl now, unless Poling is successful in his answer.

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We pulled up the filing to provide some more information for readers.  While it includes information such as address and phone number, we will refrain from publishing that data.

The action is for copyright infringement and defamation.

Hovey contends the following facts (we are leaving some of the assertions out for brevity sake):

In late 2008 she formed the American Bigfoot Society.  In late February of 2012 she secured the exclusive rights and priviledges in and to the copyright of a photograph known as the “2012 Bigfoot Photo”.  The certificate of registration is included as an exhibit – Hovey is listed as the author and that the author created a photograph(s).  The certificate is in her name, not the ABS.  The actual photographer’s name or location are not mentioned, at least not yet.  So one of two things must be a fact to make this assertion; bad news for the rest of the ABS, the ABS is Hovey exclusively, or she posted the copyright incorrectly as it is in her name but ABS on what was put out on the net.

Poling infringed upon this copyright continuously since late February of 2012 resulting in irreparable damage to Hovey.  Hovey notified Poling of the infringement but it has continued.

Poling posted material online, both written and video, containing false statements about Hovey, including, but not limited to, Hovey stealing money, stealing the material relating to the copyrighted photo, used the photo for monetary gain rather than research, released video for the purposes of fame rather than professionalism, was an amateur, and filed false claims under a digital copyright act and received funds for participating in conferences.

The above acts caused damage to Hovey’s business (bigfooting  and the ABS?  again the rest of you’se folks of dues paying members and bored do not count) and reputation as she has since had to close memberships to her organization, received threats from members of the community (we really hate that word when talking bigfoot, it is more a bunch of tribes and fiefdoms) and suffered emotional distress.

The Four Counts she brings against Poling:

1. Copyright infringement – Hovey has suffered and continues to suffer damages

2. Defamation – Hovey suffered special harm from the material Poling posted.

3. Defamation Per Se – Hovey suffered from Poling’s words as it injured her trade or occupation.

4. Conversion – Poling used Hovey’s property and she was damaged by that action.

What Hovey wants:

A preliminary injunction to end Poling’s action (as it relates to the photo and other content, we guess).

Relief from the court finding Poling has engaged in copyright infringement, defamation and conversion.  And the big ones, damages, cost of action and reasonable attorney fees for copyright infringement, defamation (two counts) and conversion.  Damage award sought is in excess of $75,000 on all counts – not sure if that is a total or $75k per count.

No opinion or editorial statements just yet, we will let people stew over the above first.  Well, we did include a few observations.

 

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