Messages

16

Higbee Associates Letter & Lawsuits Forum / Re: Service to "fight back" against Higbee

« on: May 22, 2018, 06:55:47 PM »

I've searched PACER and can't find any example of Higbee taking a case all the way to "judgment".  Does anyone know if he ever gets money at trial/summary judgment whatever?

I was interested in this, so I did a little bit of research. There are lots of cases to wade through, so I am sure I missed some. For the most part, it seemed like most of the Higbee cases were eventually dismissed. I am assuming the majority of those dismissals were the results of settlement.

I also saw a fair amount of default judgments. One case that I found did stand out to me though:

Michael Grecco Productions Inc. v. Wrapmarket, LLC
https://www.pacermonitor.com/public/case/21709013/Michael_Grecco_Productions,_Inc_v_Wrapmarket,_LLC

It looks like it went to a $60,000 default judgment and the defendant tried to challenge the judgment but was denied.  Higbee then tried to do a judgment debtors exam, which is basically a post judgment deposition, but he ended up withdrawing it. Two weeks after that, a satisfaction of judgment was filed which means that the defendant ponied up and paid off the judgment.

All that information is based off of the documents that appeared on the docket. Pacer charges you per page to download documents and I'm too cheap to pay, so I don't know the specific details. I would be interested to know why the Court denied the defendant's motion. Seems like that information could be helpful for anyone facing a default.

To answer your question, I didn't see any non default judgments, but my guess is there is little incentive for most people to take these cases very far with the risk of being on the losing end and still having to pay.

17

Higbee Associates Letter & Lawsuits Forum / Re: Letter from Lynn Burke, Sanders Law

« on: May 18, 2018, 12:53:00 PM »

So a friend who has copyright attorneys on retainer tells me to not give them a dime, period! He says copyright infringement cases need to prove damages and willful infringement to gain real claims and says no court will want to hear a case with main page verbage claiming the license that non-legal experts do not know permits the free use for commercial uses and ability to change. Like many on here, he said take a picture of their site and have your evidence in case they do not care about losing money.

It appears that your friend is incorrect. The way the copyright law is written, they do not need to prove willfulness to be awarded statutory damages. The copyright statute allows for statutory damages between $750 and $30,000 for non-wilful infringement. If they do prove willfulness (highly unlikely) then the damage award can increase to $150,000. They don't need to prove actual damages to get a statutory award. I am not saying you should just automatically pay whatever amount they are asking for, but the information you were provided does not seem to be accurate the way you described it.

The images on this site are licensed by RM Media Ltd under a Creative Commons Attribution-ShareAlike license which permits the free use of the images for any purpose including commercial use and also permits the images to be altered

I have dealt with RM Media before. While you are correct that RM Media supposedly allows the photo to be used for free, the Creative Commons Attribution-ShareAlike license requires that the photo be used with attribution. So, according to them, if you use the photo but don't attribute it according to the terms on the RM Media website, then they claim that you don't have a license because you didn't follow the licensing terms. When I dealt with them they used a Creative Commons Attribution-ShareAlike 3.0 license. You can look at the terms of that license here:

https://creativecommons.org/licenses/by-sa/3.0/us/

18

Higbee Associates Letter & Lawsuits Forum / Re: Photo used with no copyright registration

« on: May 09, 2018, 02:37:50 PM »

My understanding is the trolls can't get fees and costs without it being registered.  Which makes me wonder why the hell any lawyer would even touch this case.  It should be fairly easy for you to prove their damages are equivalent to a $10 istock photo.  So I'd say, let them sue and spend 1000's to get $10 from you!

You are correct about attorneys' fees. If the photo is not registered before the infringement began or within 3 months of first publication, then they will not be entitled to an award of attorneys' fees. However, they would be entitled to costs. So that would be a filing fee ($400) and other court costs plus probably process server fees etc. So while they would certainly spend lots of time in a lawsuit, theoretically they would break even on out of pocket expenses. But that is only if the case goes to a judgment.

As far as damages, I agree that in some cases Higbee would have a hard time proving high amounts of damages. It completely depends on what the photo is, who took it, and how it was used. If the photographer has invoices or depending on how it was used, then it probably doesn't matter what you can get on iStock since you didn't use the iStock photo, although it would certainly be worth making that argument.

In my opinion, I think it is only worth fighting if you have an exceptionally strong fair use or other complete defense. The law allows the prevailing party to get attorneys' fees, so that includes the defendants if they prevail. Unfortunately, the way the law is structured, if you used the photo it is very hard to prove a complete defense to infringement. So even if you prove a low amount of damages, you still have to waste time and money getting to that point. Unless you think you can win and get fees then fighting off a lawsuit is only going to cost money and suck away your time.

That doesn't mean you should just acquiesce and pay their settlement amount. Maybe they never sue and you get away with paying nothing. For some people, that's a gamble they are willing to take.

19

Higbee Associates Letter & Lawsuits Forum / Re: Photo used with no copyright registration

« on: May 09, 2018, 12:50:36 PM »

I recently received a demand letter from Higbee & Associates. I called to ask if the photo we had posted on our company website has a copyright registration. The "attorney" handling my claim told me that the photo does not have a copyright registration but I still had to pay the $1500. The attorney also stated that if I didn't pay the fee that the picture could be registered after the fact and then I could be responsible for more $$$$.  Can they demand fees for an non copyrighted/registered photo??

The answer is that it depends. Generally, you cannot sue unless the copyright is registered. The only exception is that if the photograph was created by a foreign citizen outside the United States, then it does not need to be registered prior to filing a lawsuit. It's not that difficult to get a registration so if they want to get one and sue they will, but it costs money and usually takes a few months to get issued.

The real question is the damages. That will probably be the motivating factor for them to decide whether or not it is worth the trouble of registering the copyright and filing a lawsuit. The copyright right laws allow for a copyright owner to choose between actual damages plus the defendant's profits OR statutory damages, which is a fixed amount set by the copyright law ($750 to $30,000 per infringement). If the photo is not registered right now they probably can't get statutory damages. Depending on how you used the photo will determine the actual damages and profits.

For actual damages, it is usually the licensing fee plus maybe a little extra for diminution of value of the photo. The real wild card in these cases is the profits. You said you used it on a "company" website. If you are using it to sell products or advertise your company then they could ask for the profits that were generated, although it may or may not be hard for them to prove. The point is, you need to look at how you used the photo. If it is a commercial use to advertise a business or product then there is probably a higher likelihood they think they can prove profits.

For some people, the right answer is to ignore their calls and emails and hope they don't sue. For others, it's worth the peace of mind just to settle and move on. There really is no right answer.

20

Higbee Associates Letter & Lawsuits Forum / Re: NY Supreme Court Disqualifies Higbee lawyer: Virtual offices not sufficient

« on: April 05, 2018, 05:03:40 PM »

What I didn't have a chance to say is that I am generally convinced that, for the purposes of a lawsuit, NO reputable state court in the U.S. will accept this "virtual office" nonsense where the lawyer and law firm don't have a legitimate physical presence in the state.

I guess we can agree to disagree on this. There is no excuse for Higbee to not abide by the New York rules, however, it is not uncommon for lawyers to be barred in multiple jurisdictions and to remotely practice in states through a virtual office or without having any physical presence whatsoever. I know many attorneys that do this.

Each state makes their own rules regarding requirements for practice. Many states either have no express prohibition against virtual offices and some explicitly allow for attorneys to use virtual office space. Other states have a "bona fide office" rule, i.e. an attorney is required to have an actual physical office that the attorney works out of, but most of those states don't explicitly require the "bona fide office" be located within the state itself.

I found this interesting breakdown of each state's rules:

https://lawyerist.com/states-require-bona-fide-office/

From what I can tell, New York is an outlier in requiring that non-resident attorneys have a physical office in New York. Again, that's not to excuse Higbee's misstep here, but to say that no reputable state would accept a virtual office is an over statement.

21

Higbee Associates Letter & Lawsuits Forum / Re: NY Supreme Court Disqualifies Higbee lawyer: Virtual offices not sufficient

« on: April 04, 2018, 12:12:32 PM »

This is very interesting, I am surprised someone didn't make this challenge earlier. It seems to me that the pertinent fact was the Rayminh Ngo was an Of Counsel and not an actual attorney employed at the Higbee Firm, and that the lease for the virtual office space was signed only after the representation began. I wonder if it would have been a different outcome if the lease was active when he first started representing the client. Unfortunately for our purposes, I think this rule is for New York State court and wouldn't apply for Federal court in New York, but I could be mistaken. Still, it's a good find.

22

Higbee Associates Letter & Lawsuits Forum / Re: Receive extortion letter from Matthew K. Higbee today - need advice

« on: April 03, 2018, 06:01:16 PM »

I always feel like information helps people make the best decision for their circumstance. I did a quick Lexis search on copyright suits filed by Higbee since April of last year. Keep in mind, Lexis doesn't have everything so it's probable that the results I saw were incomplete. He has filed for a lot of different clients, but the top five seemed to be Michael Grecco Productions, Inc., Christopher Sadowski, Alexander Wild, William Farrington, and Adlife Marketing Communications Inc. Also, most of the filings seem to be where you would expect, California, New York, Texas etc., but Higbee also seems to have a lot of one-offs in other states like Oregon, Michigan, Pennsylvania, Utah, etc.

The point is, depending on who the photographer is and where you are located can help you decide your odds of being sued and if it's worth trying to ride it out, or just to negotiate a settlement and avoid a lawsuit. Only you can make that decision.

As far as the lawsuit with errors in it, from what I have seen, the draft lawsuits they send out tend to be different than the ones they actually file. At least that appears to be the case with the recent RM Media lawsuit that someone else posted about last week. My best guess is that if they decide to sue, they have someone review the case more in depth and redraft the complaint to fix any errors before filing it, so I wouldn't bank to much on that.

23

Higbee Associates Letter & Lawsuits Forum / Re: Mathew Higbee of Higbee & Associates Bullshits People about "National Law Firm"

« on: March 30, 2018, 12:16:33 PM »

This was my thought as well. On their website, RM Media appears to be pretty open about offering some of their images for free. Short of them admitting nefarious intent, simply showing that they SEO an image as free doesn't seem to prove much.

Don't take this is as  me defending the troll, I'm certainly not! However..

Him SEO-ing some images and throwing them up as creative common images, is not "illegal". He's banking on the fact that most people are to lazy or dumb to read the license agreement, of which many don't read.. So showing a trail of how he performs SEO on some images, while not on others, would not be a defense to infringement, even though it's a sleazy tactic. One might be able to convince a judge to lower any awards, for "innocent infringement", but at the end of the day it falls upon the end user to adhere to the "agreement"..

Would not surprise me at all if this is indeed his method to get infringments, and it's a sleazy, dirty thing to do, he's largely banking on the ignorance of those that download the images.

24

Higbee Associates Letter & Lawsuits Forum / Re: Mathew Higbee of Higbee & Associates Bullshits People about "National Law Firm"

« on: March 30, 2018, 12:15:44 AM »

Patrick Zarrelli,

I'm intrigued by your comment. Is there any way to prove it though, like meta data or something (please excuse my technological ignorance) that shows the SEO trail? I've been a long time lurker on these forums and have read what others have written about RM Media's suspected business model. If they are seeding the Internet solely for purposes of bringing legal claims it seems like that would be hard to prove though, unless I am missing something.

The comopany RM Media intetionaly SEO'd their pictures to the top of Google "free for reuse" or "no copyright section." They did this to bring in as many copyright infractions as possible. The SEO trail is easy to see. They even out rank the big pictures houses in most image searches RM Media is the number one free image. They put a lot of effort into SEO ing all these pics to the front of Google free image search.