Beware of Photographer Nicholas (Nick) Youngson of NYPhotographic.com

[Matthew Chan]

Alright, let's hold the phone here. I don't know anything about your case other than what I read here.

If what you are saying is that you have a private website and that this dispute is a private matter between Higbee and you, why is Higbee contacting your employer?  They should not be calling there at all!  You need to document each and every time they have contacted you through your employer. There may be grounds for a serious complaint and even potentially a lawsuit.

For example, if you suffered, penalized, demoted, or fired at your workplace because of the inappropriate Higbee calls on behalf of his client, then you might have a claim against Higbee and the photographer!

You need to understand that if it was so easy to get $35K out of you as they are claiming, they wouldn't be using time talking to you. They would be paying $400 filing fees and get the show on the road to get that $35K.

Assuming they filed a lawsuit, it is perfectly legal to NOT accept service.  It is also legal to NOT hire a lawyer to defend it. You could, in theory, write a letter to the court explaining your situation to mitigate any potential claims they make to tone down a default judgment. Default judgments are notoriously difficult to collect upon if they hit the wrong defendant.

As has been said many times, the harder people fight, the better the settlement. They have continued to lower the amount. AT some point, every person has to decide for themselves what is best for them to settle or not settle.

But there is something very fishy in the story. There have been more reports that Higbee employees are getting more assertive about calling people. However, I never heard anything about them calling anyone's workplace.  That is a serious no-no.  IN fact, you need to write them to cease-and-desist calling your place of employment.  And as a backup measure, I would go visit a couple of personal injury lawyers. They generally will give some free consultations or point you in the right direction.

If someone called me at my place of employment without my permission over a private matter, the whole landscape would quickly be flipped. My impression is that there is an overzealous employee calling but they have just exposed Higbee and his law firm to some complaints.

You see, they have no problems pushing the envelope because most victims don't know what is allowed or not allowed.  And this whole business calling people at work over a private matter is an ABSOLUTE NO!

Today, my employer got the following email (I've deleted some info) ...

Quote
From: Mathew Higbee <mhigbee@higbeeassociates.com>
Subject: Copyright Claim -
Date: April 14, 2017 11:44:13 AM CDT

Mr. XX-

This case has been moved to the litigation team.    I am now your point of contact on this case.    Ms. Lupean forwarded your last email to me.

The documentation that we have provided is more than sufficient to demonstrate the validity of the claim.  A quick search of the internet will provide you with an abundance of evidence that supports the validity of who we are, who are client is and the ownership of the image that you used.  If that facts were other that what we represent, we would be committing fraud and we would be liable under civil and criminal law.  If you want me to provide more supporting documentation, I can, but it will end up making this case more expensive for you as the client will pass on the cost to you.   

As this is a timely registered image, i you were to prove to the court that your infringement was unintentional, the mimum amount you would have to pay would be $750 plus court costs and our client’s attorneys fees.  If the court does not believe your unintentional defense and finds that the infringement was willful, the mimunim amount a judge could award would be $35,000 plus court costs and our client’s attorneys fees.

Our client has already incurred substantial costs tracking down the infringement and documenting it,  and our law firm has already spent considerable time communicating with you regarding the case.   As a last chance offer to avoid litigation,  I will give you a one-time offer of $1,250 ($750 statutory damages + $500 for our time)  to settle this case.  This offer expires Monday morning, at which time we will prepare the case for litigation.  We will also present this offer as evidence to the court that we made earnest efforts and reasonable offers to resolve this case, and ask the court increase award to our client as a result of your forcing this claim to be resolved in the courts.

My review of the Wisconsin Secretary of State records leads me to believe that this is a single owner or closely help LLC and, based on the chronology showing multiple times that the corporation has lost its standing (which leads me to believe that corporate formalities are not well maintained and piercing the corporate veil would be easy), I would recommend that my client name you personally on the law suit.   

An offer of $1250  is a dramatic reduction by my client.  I hope you make the smart business decision and accept this offer.   If you have additional questions or wish to accept the offer, please contact me by email or phone at 714-617-8352 (my direct line).

-Mat
Mathew K. Higbee
Attorney at Law

[InWisconsin]

Hi Matthew – thanks so much for the reply.

But I should have been more clear – I work for a small magazine that Highbee is trying to scare. After months and months of back and forth (including me offering fair amounts of money in compensation) Highbee is calling our owner now. Our owner is the first person they contacted and then I took over communications.

This is not a case of Highbee calling an employer unrelated to the case.

[Matthew Chan]

I want to add something here.  The issue of financial standing and position is important, in my view.  For people where money is an issue, there was no income, and you cannot afford a lawyer, the best you can hope for is state your position. And the offer of settlement can't be ridiculously low.

No one should be settling anything if it means they can't pay rent, groceries, a car payment, utilities, etc. This is NOT a debt, it is a claim. And too many people are trying to "outlawyer" and "outspeak" the claims. Most people will never succeed. It is a waste of time and energy.

He criticizes that you are a small LLC who let things lapse.  Well, that also implies that you are not well financed either.

People who have the least amount of money should be the ones that fear the least because there is nothing to collect. It will be an entirely waste of real money to get a paper judgment and I am quite confident Higbee knows that.

Right now, it is a game of chicken. He has little to lose to make a "final offer". There is no negative consequence for making that because it isn't binding. 

Again, I am not telling you to NOT settle but it is pretty clear Higbee is trying to manipulate you to cough up some money. He claims it is his client but THEY stand to get their 33% commission. Never forget that.

[InWisconsin]

Thanks for the insight, Matthew, it's much appreciated.

I believe the financial "standing" thing mentioned was from over 10 years ago and it only happened once and resulted in a fine of less than $50 or something like that.

[Matthew Chan]

If the owner is the one being threatened, why is your owner hiding beyond you? You cannot make a decision for the owner.  What kind of an owner is he?  Does he think you are more knowledgeable and experienced than him? Is he expecting you to negotiate away the matter?

The owner is going to have to get some stones and make a stand somewhere. He is going to have to choose to take the call or not. (I wouldn't. Keep all communications in writing to cover yourself. People have a tendency to say too much.)

People who don't issue a cease-and-desist request on the phone call matter are being foolish. That is why they keep calling. No one has issued a cease-and-desist request to keep communications in writing.  There are some exceptions but generally most victims are terrible on the phone.

Hi Matthew – thanks so much for the reply.

But I should have been more clear – I work for a small magazine that Highbee is trying to scare. After months and months of back and forth (including me offering fair amounts of money in compensation) Highbee is calling our owner now. Our owner is the first person they contacted and then I took over communications.

This is not a case of Highbee calling an employer unrelated to the case.

[Matthew Chan]

Courts are not just going to sweep away the "corporate veil" based on Higbee's say so.  If your employer keeps business records, a separate checking account, uses the corporate name, and files and taxes properly, that is generally a strong basis of maintaining corporate protection. A late filing happens which is why they have late fees. Late filing happen to many businesses.  That is not a big deal.

However, there are many sloppy business people who regularly co-mingle personal funds and business funds. That is a no-no. The occasional stray personal transaction that shows up on a business account won't destroy corporate protections.  However, if your employer is using the business account like a personal checking account paying his mortgage, groceries, utilities, etc. that is an area of concern.

However, even then, that isn't public record and Higbee would have to expend time and effort on that front. He would probably have to demonstrate good cause as well.

Things are just not as simple as it seems. Hence, all the begging and cajoling for your employer's money.

Thanks for the insight, Matthew, it's much appreciated.

I believe the financial "standing" thing mentioned was from over 10 years ago and it only happened once and resulted in a fine of less than $50 or something like that.

[InWisconsin]

At this point I do know a bit more about these matters than my employer, and I don't feel he's hiding behind me. I feel in our situation, thus far, it's been appropriate for me to handle the communication. But maybe that's changing. We discussed the matter and decided to "not take the call."

We've never spoken to anyone from Higbee on the phone and I have asked them to communicate via email but I've never direct said "do not call us."

Also – my employer is pretty strict about business / personal separation. Thanks again for the insight.

[Matthew Chan]

Well, it sounds like your employer will have to decide where to make a stand. It comes down to his risk tolerance. If you guys really want to settle, no way they will take less than $500.  But that doesn't mean to offer $501 either if you want to dispose of this.  Offer $750 statutory damages if you want to make a "legit Offer" and then stand by it.  Not a half-ass $750 and then waffle on it. It is part of real-world negotiation to know where your line in the sand is.

People try to make all these legal arguments when it almost always comes down to a test of wills. I spoke to a guy recently who was so immersed in the legal arguments, he lost sight of the end goal was. He denied it but he wanted so badly to convince his accuser of his legal argument. I told him, then go spend $300-500 per hour and hire a lawyer to dig out legal research for you.

Higbee knows what he got himself into when he signed onboard. Cry me a river on his $500 "time".  He knows that many people pay ZIPPO.

It sounds to me you guys are in a "soft" position here. If the back and forth is too much and the risk prospects is too unpleasant, make a "real offer".  $750 statutory damages and that is it.

At this point I do know a bit more about these matters than my employer, and I don't feel he's hiding behind me. I feel in our situation, thus far, it's been appropriate for me to handle the communication. But maybe that's changing. We discussed the matter and decided to "not take the call."

We've never spoken to anyone from Higbee on the phone and I have asked them to communicate via email but I've never direct said "do not call us."

Also – my employer is pretty strict about business / personal separation. Thanks again for the insight.

[Matthew Chan]

I would like to remind everyone that Nick Youngson situation is fraught with a "honeypot" smell and people should remember that.

And Nick Youngson is in the UK and someone would likely have to invest the money to fly from the UK to testify in any theoretical lawsuit.  And Nick would get some nice publicity along the way.

For me, victims would do well to remember this.

[InWisconsin]

Again, thank you, Matthew. Much appreciated info and insight.

[InWisconsin]

Today we got a packet from Higbee in the mail that I believe others have described on this thread – a letter giving us 15 days to pay a "firm settlement of $5,000" and a copy of a Complaint they will file if we don't (unfiled, no case #, etc.). And yes, instead of Youngson, the client is now RM Media, Ltd.

I just feel inclined to ignore it as they've let multiple deadlines like this pass. As far as  I know, neither Youngson nor RM Media has ever gone to court. It seems like it would be so costly to go to court for them for what they might get out of it. We offered them a fair amount of money (in our mind) which they have reused.

[clist]

...5 bucks says RM = "Rights Managed"....   

[TedStryker]

I received one of these Higbee demand letters in February 2017 through a website I run. At first, I was a little nervous and then I Googled and came out to this site. I'm a lawyer and I knew things were fishy before even coming to this great resource.

1. I found it odd that they sent a demand through regular mail. Usually, in important legal papers, I at least use tracking.

2. The $5,000 demand bears in no relationship to any damages that Youngson could have for a page that maybe had 200 views on it. I deleted the photo after I got the initial paperwork.

3. The whole honeypot scam of labeling the photos for reuse in Google Images when it should be labeled as commercial or reuse with modification since you have to attribute or pay the license.

4. The whole license fee of $10. How can he demand $5,000 in damages when he'll sell the picture for $10?

5. The whole licensing thing is a scam because if you pay the $10, Youngson provides no licensing agreement. When does it start, when does it end? Will he still claim damages from someone who bought a license from him.

6. The people calling you on the phones aren't lawyers. Anyone who ever went to law school would understand their demands aren't reasonable.

7. Higbee hasn't sued on this because it would expose the Honeypot scam. There is more money in getting $500 to $1250 settlements from companies who don't know better or don't want to hire an attorney than filing an actual lawsuit.

I ignored the calls and I've ignored the threats that they are forwarding this to their litigation team. It's 6 months later. If they wanted to sue me, they would have already.

[Matthew Chan]

My comments inline...

I received one of these Higbee demand letters in February 2017 through a website I run. At first, I was a little nervous and then I Googled and came out to this site. I'm a lawyer and I knew things were fishy before even coming to this great resource.

Welcome, glad to have you here!

1. I found it odd that they sent a demand through regular mail. Usually, in important legal papers, I at least use tracking.

In the "old" days (pre-2012), almost everything we saw was through regular mail but then gradually we began seeing copyright claim emails which has almost become the norm today. I estimate there are literally thousands of copyright claims each year.  It is all based on most people's legal ignorance. The emails are generally as effective as sending a snail-mail letter.

2. The $5,000 demand bears in no relationship to any damages that Youngson could have for a page that maybe had 200 views on it. I deleted the photo after I got the initial paperwork.

Absolutely correct  The $5K number is made up and arbitrary. We see that number for most people.

3. The whole honeypot scam of labeling the photos for reuse in Google Images when it should be labeled as commercial or reuse with modification since you have to attribute or pay the license.

The Nick Youngson website operation is so shoddy and the wording and disclosures are so bad, I didn't even know it was his website until another victim reported his findings and it compelled me to give a closer look. He promotes his "free images" so hard that people are falling for it left and right and put into a "gotcha" situation.

4. The whole license fee of $10. How can he demand $5,000 in damages when he'll sell the picture for $10?

That is correct. It is far above even the $750 minimum statutory damages assuming he even registers his images.

5. The whole licensing thing is a scam because if you pay the $10, Youngson provides no licensing agreement. When does it start, when does it end? Will he still claim damages from someone who bought a license from him.

I have not heard from anyone paying the $10. Did you pay $10? Is that what you are saying?

6. The people calling you on the phones aren't lawyers. Anyone who ever went to law school would understand their demands aren't reasonable.

Yup, the people on the phones are generally low-level hourly clerks. They do the grunt work.

7. Higbee hasn't sued on this because it would expose the Honeypot scam. There is more money in getting $500 to $1250 settlements from companies who don't know better or don't want to hire an attorney than filing an actual lawsuit.

That is what I have been saying. I rarely call anything a "honeypot" scheme because most victims got their images from Google Images and any number of places.  But with Nick Youngson, he promotes "free" images with crappy disclosures, then nails people for making dumb mistakes on giving credit.

I ignored the calls and I've ignored the threats that they are forwarding this to their litigation team. It's 6 months later. If they wanted to sue me, they would have already.

I agree with you that people should not return calls. In fact, people should save the voice messages. I am interested in hearing more of them. I disagree with you on the rationale of their not filing a lawsuit within 6 months. Many copyright lawsuits are filed between Years 2 & 3 when it becomes clear that months-long efforts to settle have been exhausted. IN particular, Nick Youngson filing a lawsuit is currently unlikely because of the way he operated.  His active promotion of "free" images and lack of clear disclosures is a big problem in my view.

[say_no_to_extortion]

Just received the same template and request for +$5,000. Has anyone dealing with Nick Youngson/Higbee resolved their situation?