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Author Topic: Higbee & Associates - Demand Letter and Release Agreement  (Read 1655 times)

inadvertent

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Higbee & Associates - Demand Letter and Release Agreement
« on: September 29, 2018, 11:01:01 AM »
Hi...I'm willing to share the documents I received from H&A regarding my ongoing skirmish.

About 3 years ago, I inadvertently used an AFP (repped by strictly Getty in North America, I was informed) image I found through a Creative Commons search in an educational blog post with very limited exposure (the site had no SEO, I had no followers, because at that time, it was an amateur site I built myself on WIX...strictly to refer people who asked me for a specific service. (mink animals all crammed in cages on a blog post about "mink" eyelash extensions...it's a beauty industry ethics story!)

I was first contacted by PicRights from a dtp (desktop to publishing) PO Box in Kansas, so I thought it was a scam and ignored the first notice. More notices....eventually I answered them and told them to go away...the image had been immediately taken down, it was an accident on a non-monetized website in an educational blog post to a limited audience.

Eventually I was contacted by Shauntece Laurent from H&A. (I'm willing to share the first demand letter.) We had several emails and a couple of phone conversations where I maintained I had since purchased a license for use in a blog post, although after the fact, but I was willing to pay the licensing fee even though the images were no longer being used. She at first insisted I needed to pay the original claim amount of $2,670, but thought she could negotiate a lesser amount...so I threw out how about $1000 for both to see how flexible. She reluctantly agreed to $1,500. But I told her no...not possible I am willing to pay the fair market price. Back and forth while I investigated with AFP and Getty both. She told me several different things about why they were charging so much. Each one I debunked ("large files" ...umm nope, one file was a thumbnail embedded inside the text. "Design element" nope....not in anything except a plain blog post...not a logo or banner or header or footer or any other commonly accepted definition of "design element"...and so forth.) She finally got down as low as her "authorized amount" and I said, "OK...send me something justifying that amount." (I'm willing to share the agreement she sent but couldn't figure out how to do an attachment.)

This is my email response (with some personal information removed):

"I want this to be done, as much as you do. I admit my inadvertent infringement, despite my efforts to vet the photos before I posted them in my educational blog post, requires that I make the copyright holder whole, but I have maintained all along that I am willing to pay the appropriate market values. I have not signed or agreed to a payment because I have not yet received paperwork that correctly identifies the license for which I would be paying. Further, I have reconfirmed with Getty that the price they would charge for the images and use I made are in accordance to the quotes attached. I am "not trying to set rates" at all. Getty does that. I am maintaining my original stance from the beginning that I am willing and able to pay the correct amount in accordance to the use.

After speaking with Getty, I believe the difference between the screen shots you obtained is that the use is for "a design element" (which was not applicable), versus "use in a blog post" (which is what actually happened) as per the quotes I received. As for the discussion on pricing, there have been several "explanations" offered over the course of our communications for the extremely high prices being quoted....you mentioned at one point it was based upon size as the file found on my blog as being closest to a "large" ...but in fact, one image was significantly smaller because it was set amongst the text, while the other was at the top. Then it was put forth that it was because it was editorial use but I have no circulation nor followers nor subscriptions. Then it was discussed that AFP is the one setting the prices you have quoted, but they state absolutely they do not have anything to do with pricing in North America and they referred me to Getty. Getty Images has confirmed the price for these images used in a commercial blog post as $175. Based on that, I can make a payment today for the total of $350...as I offered before. Can you please draw up paperwork stating the appropriate license for which you are charging me, as I've requested? If so, I'll sign, and you can either call for my card or I can write a check to you.

I certainly hope this is acceptable, otherwise, I will have to allow you to pursue litigation, and I will have to hire an attorney who will require you to produce the actual certificates filed with the US Copyright office by AFP and will argue that my inadvertent use, for educational purposes on a non-monetized blog with no advertising or sales, of a previously published work that related to a different purpose (AFPs fact reporting on world pelt farming vs. my discussion of the ethics of mink fur used for eyelash extensions), and which did not interfere in any way with the copyright holder's ability to market or sell these works can be classified as fair use. Yes there are the risks of the high settlements you previously mentioned, but their is also the risk to you that a ruling would be in my favor."

The latest event is a phone call from a Giovanni Noriega (a "supervisor" who gets involved when the issue is escalated) wherein I restated that I was still awaiting information justifying the price they were charging. I wanted proof that my usage was worth the (several varied) amounts they were claiming. That I understood I must make the copyright owner whole by paying the market price. That I had received information from Getty about the correct price of the images for the use I made of them and I was willing to pay that.

He stated that I could not expect to pay "just the usual" rate because the purpose of pursuing copyright infringement is to be a deterrent. That there needs to be a punishment or everyone will just keep on doing it. He said I should be lucky they agreed to reduce their original claim of $2,670 to the $1,335 I agreed upon...was I now trying to renege on my agreement? I stated that I did not agree or sign anything for that amount, that I had requested further information about the agreement they'd sent (1. proof that the amount I owed was fair market value and 2. a clear statement of the terms of use for those licenses.) I still had not received this information.

He then changed his tune and said they were charging so much because I had used the images on a commercial website and that was the correct fee. (Not according to Getty...I have both spoken to them and received quotes in writing.)

I reiterated my offer to pay the price Getty themselves are asking (as per the quotes I had previously submitted to the first associate that had contacted me.) The call ended with his promise to email me a breakdown on the licenses.

I hope this is helpful for readers out there. I'm hopeful my persistence will eventually result in a lower fee. I am a writer and absolutely believe in the ownership of IP. I would not bother trying to vet the images I use otherwise. I just don't think "collection agency" mentality should prevail in defense of copyrights.
« Last Edit: October 13, 2018, 07:15:38 PM by inadvertent »

RR

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Re: Higbee & Associates - Demand Letter and Release Agreement
« Reply #1 on: October 01, 2018, 04:47:46 PM »
This is very helpful since this story seems to be all to familiar to my story, you're just few steps ahead.

I think you are doing the right thing and working on the right direction i just don't believe they want to have a "fair" deal.

aot

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Re: Higbee & Associates - Demand Letter and Release Agreement
« Reply #2 on: October 01, 2018, 10:42:52 PM »
Thanks for sharing this! Keep us posted!

Also, can you share the URL of the CC image? Also, is this just one image they are after or multiple images or multiple use of the same image?
Do you know who is the copyright owner of this particular photo and have you tried to reach that person?

inadvertent

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Re: Higbee & Associates - Demand Letter and Release Agreement
« Reply #3 on: October 13, 2018, 06:49:43 PM »
I can no longer recreate the CC Search results after 3 years.  There were 2 similar images by the same photographer. If you do a Google search on one image, it comes up over 25 million times. H&A are claiming they are representing AFP who owns the copyrights. I had previously contacted AFP when I responded to PicRights, asking about these images and they directed me to Getty.
« Last Edit: October 13, 2018, 07:09:49 PM by inadvertent »

UnfairlyTargeted

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Re: Higbee & Associates - Demand Letter and Release Agreement
« Reply #4 on: October 15, 2018, 12:29:36 PM »
25 million times for the search result?  Is this the piece of shit Tom Schwabel again?!

Why won't that fuckhead just go into a hole and die with his shitty overedited copied from everyone else trash?

DavidVGoliath

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Re: Higbee & Associates - Demand Letter and Release Agreement
« Reply #5 on: October 15, 2018, 02:18:40 PM »
25 million times for the search result?

This is glitch in Google's code; if I reverse-search one of my own images which I know to have "gone viral" over ten years ago, the first page of the Google query states that there are 25,270,000,000 results... but the truth is there are only 234 actual instances of the photograph in question being indexed, and perhaps two-thirds of those are 'hotlinked'

Is this the piece of shit Tom Schwabel again?!

You really have a hard-on for Tom, don't you? Unrequited love, is it??  ;D

Why won't that fuckhead just go into a hole and die with his shitty overedited copied from everyone else trash?

As has been mentioned at least twice, the Statute of Limitations has expired for your infringement... why so serious?  ???

 

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