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DO NOT  RESPOND, DO NOT ADMIT GUILT!!  this only helps them and their case..if they want to bring you to court, MAKE THEM PROVE THEIR CASE!... keep reading get educated, before doing anything...deadlines are designed to get under your skin and to make you react, they mean NOTHING!
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Hi,

Is the best advice still as here - not to respond to demand letters?  I'm UK based and recently received a demand letter from Pixsy.com.  I was about to reply with a response highlighting a number of similar photos on stock websites and their prices for use (far less than 1/20 of the fee being demanded), when I came across the responses on this thread which suggest it is better not to respond at all.

What should my course of action be in 2017?

Many thanks!
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I think a wise course of action would be to communicate with the claimant and tell then you have purchased a licence. You should tell them from who and when you obtained the licence.

There is every possibility that the claimant is muddled over who has and has not already purchased a licence. If you can show a valid licence their claim is stopped dead in its tracks.

The fact that they they have contacted 20 other users of the image is not relevant to your defence. Indeed if any of the claims are valid, the claimant may say this illustrates the extensive damage to their business and therefore additional dissuasive damages should awarded pursuant to the Directive  2004/48/EC of the European Parliament and of the council  of 29 April 2004 on the enforcement of intellectual property rights.

Do be aware that because somebody sold you a licence they may not necessarily have had the rights to do so. The internet is full of websites offering to sell or give away the rights to works which they do not own. Wallpaper sites are particularity notorious for this. The legal principle of Nemo dat quod non habet applies and if you purchased a licence that was not valid, your use would be an infringement and you would be liable for damages. Relevant UK case law would be David Hoffman  vs Drug Abuse Resistance  Education (UK) Ltd  [2012] EWPCC 2
http://www.bailii.org/ew/cases/EWPCC/2012/2.html


If you have been sold an invalid licence then you can of course probably recover any damages you pay out from whoever sold you the licence. This underlines the importance of obtaining image rights from reputable sources as you would find it quite a challenge to receive damages from an anonymous  Ebay seller or  wallpaper website based in China or Panama etc.

If you are facing a genuine claim for infringement then my advice is the same for copyright infringement as for any other civil dispute, which is try to reach an out of court settlement. Ignoring a legitimate claim is a high risk strategy. If they are bluffing, you win and its cost you nothing. If they are not bluffing and they issue a claim in the High Court then you will be sitting on a whole load of costs which you could have avoided. If you ignore a case that is issued you could end up with a judgement by default and a very expensive visit from High Court Enforcement Officers. The best bet is to talk to the claimant, see if they have a valid claim or not or if you have a valid defence or not. If you have a valid licence then they have no claim.  If the claim is valid then negotiate a settlement. The earlier you do this the less legal work the claimant will have done and the more likely he or she is to accept a lower offer.  Jaw jaw is better than war war !

Disclaimer: I am not a Lawyer.
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Getty Images Letter Forum / Re: Higbee followup
« Last post by icepick on December 08, 2017, 09:00:22 AM »
I disagree with some of Hamilton's points. For example, I've never heard of standing being applied for ethics complaints. The issue for ethics discipline is the attorney's conduct alone, it doesn't matter if it had no measurable impact on anyone. Think of advertising violations for example.

In a normal world he has some points, but I don't think they apply in the bizarro world that everyone dealing with Higbee has stepped into. He is running a script, he does not respond to substantive issues. The person you are trying to discuss the issue with is an $18/hour bill collector, not an attorney.

He does file suits against people that are judgment proof, that filing fee is equal to $400 of free advertising to him to get bigger settlements from the next guy.

Most complaints do go nowhere, but using that as a reason to not make them is how the status quo endures. Only after enough people have had enough and the state bars start looking at this guy is he going to reform his operation. He can continue to troll all he wants within the rules, but he is currently crossing several lines with the deception, dishonesty, and misrepresentations he uses in communicating with defendants. He may think all the states he is licensed in are like California and do not have those rules, but he would be wrong.

Higbee doesn't follow the rules of reasonableness, so neither should anyone that has to deal with him.
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Getty Images Letter Forum / Re: Higbee followup
« Last post by Robert Krausankas (BuddhaPi) on December 07, 2017, 03:18:30 PM »
@clist

I had the same suspicion about Hamilton66.  I disagree the advice of the forum is reckless.  Farfrom it.  I also disagree with H's idea of contacting Higbee and making an arguement.  Save thatr for a judge if that were ever the case.  I would be very interested to hear from Mathew or any other of the senior posters comments on Hamilton66's post. 

Yeah. His post seemed very troll "ish".   ;)

Additionally, I've read countless threads on ELI and have spoken to IP and Copyright attorneys and a lot of the statements made on this site were supported.  So I'm calling BS on the "reckless" statement as well.

With that said, I do believe that everyone's situation is different and because of this there is no "1 size fits all" solution. That's why its so important for everyone to take what they read on this site with a grain of salt and do their own due diligence to build and strengthen their case. 

Because at the end of the day, if you've been contacted by a troll ~ you need to get educated so you don't become another victim.

Agreed, there is no magic bullet, short of paying the demand. From time to time we get opinions like this it's nothing new..Most of us are not lawyers and we don't have to play by those standards, which is largely why we suggest "unorthodox" strategies, and prefer the "street fight" mentality., While the op does bring up a few points worth noting, I doubt the case we are discussing would land in the 5th district, in Texas. It would be argued in the 9th district ( I'm fairly certain) where the perfect10 case argued.

Naturally there are always risks involved in being upfront and filing complaints, and even if the Bar association doesn't act, any attorney concerned about there reputation, would likely respond to a filed complaint, even it it went nowhere... Need I refer to Stingers Bar Complaint about one of Tim McCormacks attorney, who not only had to respond, but ended up having to hire an attorney? Do I need to mention the 100's of complaints filed against getty Image with the Washington AG, that each required a response? Do i need to mention that Getty images used to send out letters demanding upwards of 1000.00, and those days are now over, whilst they still send letters, the amount demanded is much more reasonable..Did Getty make these changes to "be nice"..I doubt it, or did they tire of the push back from unhappy, unsuspecting, and now educated people??.. I guess we'll never know the true answer, but I suspect ELI had at least a small impact on their methods.
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Getty Images Letter Forum / Re: Higbee followup
« Last post by clist on December 07, 2017, 01:34:16 PM »
@clist

I had the same suspicion about Hamilton66.  I disagree the advice of the forum is reckless.  Farfrom it.  I also disagree with H's idea of contacting Higbee and making an arguement.  Save thatr for a judge if that were ever the case.  I would be very interested to hear from Mathew or any other of the senior posters comments on Hamilton66's post. 

Yeah. His post seemed very troll "ish".   ;)

Additionally, I've read countless threads on ELI and have spoken to IP and Copyright attorneys and a lot of the statements made on this site were supported.  So I'm calling BS on the "reckless" statement as well.

With that said, I do believe that everyone's situation is different and because of this there is no "1 size fits all" solution. That's why its so important for everyone to take what they read on this site with a grain of salt and do their own due diligence to build and strengthen their case. 

Because at the end of the day, if you've been contacted by a troll ~ you need to get educated so you don't become another victim.
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Getty Images Letter Forum / Re: Higbee followup
« Last post by kingkendall on December 07, 2017, 11:35:40 AM »
@clist

I had the same suspicion about Hamilton66.  I disagree the advice of the forum is reckless.  Farfrom it.  I also disagree with H's idea of contacting Higbee and making an arguement.  Save thatr for a judge if that were ever the case.  I would be very interested to hear from Mathew or any other of the senior posters comments on Hamilton66's post. 
8
Getty Images Letter Forum / Re: Higbee followup
« Last post by clist on December 07, 2017, 12:41:46 AM »
Simply email them and tell them you have no money and ask them to explain how your review of a book that used the image of a book (or from the book) is not fair use.

Sure.

This is exactly how you move to the front of the line.

GTFOHWTS



 If you have no money or there is a fair use defense, which there probably is if the image is of the book (as you mentioned above) or from the book, let them know.  The sooner the better as it will relieve your stress and they will likely drop the case if you are correct or even close to correct... 



Again, you sound like you work for Higbee....and with 1 post in your corner....  ???

Just saying..

 
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Getty Images Letter Forum / Re: Higbee followup
« Last post by clist on December 07, 2017, 12:27:37 AM »
@Hamilton66 are you a Higbee employee?
10
Getty Images Letter Forum / Re: Higbee followup
« Last post by Hamilton66 on December 06, 2017, 01:16:28 AM »
I am sure it is well meaning, but some of the advice you are receiving on this board is reckless and ill-informed.  It is also failing to emphasize your two most important facts: (1)  you are allegedly judgment proof (assumming you really don’t make much money) and (2) you have, what sounds like, a solid fair use defense. 


1.  “Hotlinked” is not a surefire defense in most cases.  The 9th Circuit partially embraced a inline linking defense in the Perfect 10 case, but other circuits have not.  This is a good example of why you should have an attorney review the facts as they pertain to you.  Too often non-attorneys who do not know the law and who will not be accountable for  unintended results of their the bad advice, are too inexperienced or too quick to do a proper analysis.  See the Leaders Institute LLC case out of the 5th circuit (Texas case #  3:2014cv03572) where the court ruled against the inline link defense: "To display a work, someone need only show a copy of the work; a person need not actually possess a copy to display a work.”     The fact that you used an inline link may make the case more speculative, and therefore less desirable to pursue, but it is far from a perfect defense. 

2.  Lawyer’s frequently ask to review insurance policies and sharing their opinion about the coverage is not an ethical violation if it is done with appropriate disclosures.  Furthermore, you have no standing to make this complaint unless you were harmed by the offer.

3.  These are absolutely your strongest points.  If you have no money or there is a fair use defense, which there probably is if the image is of the book (as you mentioned above) or from the book, let them know.  The sooner the better as it will relieve your stress and they will likely drop the case if you are correct or even close to correct. 

4.  I am pretty sure that you telling any lawyer that you are getting advice from a user forum or message board is only going to hurt your cause. 

5.  Filing complaints and threatening complaints is a waste of time unless they have real merit.    99.9% of bar complaints do not even result in an inquiry from the bar to the attorney.  The state bar associations are not going to make attorneys waste time with meritless complaints.   Any attorney who has been around knows this and does not care about these threats.

Counterclaims in court must have merit, otherwise, you risk getting hit with attorneys fees or, even worse, an anti-SLAPP motion (if the action is in an anti-SLAPP state). 

As offensive as they may be, these copyright mills are businesses.  No attorney who works on contingency wants to pursue, much less file a lawsuit against someone who cannot pay the judgment or who has a possible valid defense (which is sounds like you do).     Simply email them and tell them you have no money and ask them to explain how your review of a book that used the image of a book (or from the book) is not fair use.    If you think you are dealing with an intern, look-up Higbee’s email address on the state bar web site and email or call him directly.    Do not give them any information other than you believe the use of the image constitutes fair use and you want to know why they think it does not. If your article is about a book and the photo is of the book, I would be shocked if they could argue around a fair use defense.
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