Messages

151

Higbee Associates Letter & Lawsuits Forum / Re: Higbee Emails for supposed Stockfood America Image

« on: June 07, 2018, 12:46:45 PM »

I need to go back and look for what you spotted.  In the absence of reading it myself, I will offer a speculation.

MOST lawyers are unfamiliar with the players in the business and the minutia and mechanisms being used to execute on these copyright extortion letters. Hence, lawyers will assume the worst and give not-so-good advice.  I have communicated with many folks who attempted to use a family lawyer, a friend lawyer, vanilla IP lawyer, and the horrific LegalShield/Prepaid Legal lawyers.  Most give bad advice not because of the legal interpretation. These unfamiliar lawyers (which clearly does NOT include Oscar Michelen) lack the background and knowledgebase we have on how the copyright extortion characters carry out their mission.

Non-lawyers are not expected nor are they required to follow professional legal conventions.  Many strategies we discuss on ELI make lawyers cringe. But I would challenge any lawyer to tell me that topics we discuss encourage criminal behavior.

Not all infringements are deserving of compensation even those with filed copyright registrations. It is an entitlement mentality adopted by the other side. There is a such thing as a "de minimus" infringement.  You know how I know? Because the big boys like Disney, movie studios, big publishers, don't issue extortion letters and demand money. All their works are trademarked, copyright registered, etc.  They have serious money and invest it to protect their IP.  They send cease and desist letters with a threat of possible litigation. They don't demand money. They just want you to stop using the image, video, etc.

Most of the parties demanding money are small timers.  They have Higbee and the like sell their narrative that all infringements require money to resolve. It is all bullshit. They might snow people who don't do their own research. But they don't snow me or other long time ELI loyalists. But lawyers who don't follow how copyright is enforced fall for the Higbee argument/propaganda.

Some examples of controversial strategies that make most lawyers cringe despite the fact they are legal (not a criminal act):

1. Avoid service
2. Letting a state dissolve your LLC.
3. Go Dark
4. Embark on an aggressive complaint letter campaign (credit to Greg Troy for this one) towards State Attorney General, BBB, State Bar, etc.
5. Don't respond/defend the matter, become uncollectible.
6. Play chicken.
7. Stand your ground.
8. Dox your opponents.
9. Be loud, aggressive, obnoxious, and vexatious.

Now keep in mind, I am not necessarily endorsing any of these strategies in themselves. Some are tools in a toolbox to be used surgically and strategically. I am the only guy I know that openly discuss these controversial strategies. Most lawyers will not generally discuss these options because they are generally against their code of professional conduct and ethics.

Non-lawyers have a lower bar of knowledge and expectations. My general opinion in dealing with these types of matters is that as long as people don't engage in criminal acts (such as threaten physical or bodily harm which is entirely off the table), most strategies are fair game.

By trying to convince defendants to show their letters to unfamiliar lawyers, the idea is to avoid unusual/controversial defense strategies and to turn an opposing lawyer into an unwitting ally.

It's been a while since I looked at Higbee letters, but this part right here:  If you have an attorney assisting you with this matter, please forward this communication to him or her.   If you do not have an attorney representing you, you may wish to hire one. does not sound familiar with what I've seen.

Can anyone with older letters confirm if this is a new addition to his letters? I'm intrigued at what likely forced its inclusion if it is new.

152

Higbee Associates Letter & Lawsuits Forum / Re: Judge Awarded Higbee & Associates $48,000 for Use of 1 Photo!!!

« on: June 05, 2018, 07:33:29 PM »

That was my thought exactly.  "Willful infringement" accusations tend to be leveled at those who do not remove the image(s) in question upon notification. Taking down an image down goes a long way to scaling down the situation.

I haven't looked at the case history but one thing that jumped out at me is it is for 'willful infringement' so they probably left the images up or something equally careless. I don't see it as anything to be alarmed about for people that have facts refuting any willful infringement claim Higbee might make, but that's just my opinion.

153

Higbee Associates Letter & Lawsuits Forum / Re: Judge Awarded Higbee & Associates $48,000 for Use of 1 Photo!!!

« on: June 05, 2018, 07:31:15 PM »

I totally agree.

Higbee and others will play this up for all the attention they can get. It is an excellent propaganda tool to use. Hence, we tell people to get educated. The uneducated and uninformed will continue to be victimized with their simplistic views and understanding of this phenomena.

Getting a default judgement is nothing Higbee can crow about.  It just means the defendant didn't respond to getting served court papers in the lawsuit.  Notice how Higbee didn't say it was a default judgment in he tweet.  He does mention $48,000 though and that is meant to scare the timid into paying up.  It's all part of his scare tactics.

154

Higbee Associates Letter & Lawsuits Forum / Re: Judge Awarded Higbee & Associates $48,000 for Use of 1 Photo!!!

« on: June 05, 2018, 07:25:44 PM »

I am late to the party and a lot of good discussion has occurred. While I don't necessarily agree with everything Ethan Seven has written and concluded, I admit he has done what I would have if I was inclined to dig in further. I probably won't because of my time constraints.  I also know things are not what they seem so I don't buy into your headline so easily without conditions.

Some quick comments I would like to make to Joan X.

The points Ethan Seven make that there is more to the story of the $48K judgment is entirely spot on and he has taken the time to outline some of the issues he saw which led to the $48K. It didn't just happen without some cause. Michael Grecco is an unusual plaintiff who I am familiar with his prior lawsuits.  Most plaintiffs are not of his kind or his reputation.  Also most people are not infringing upon celebrity photos.  And most people take down photos once informed to avoid the "willful infringement" accusation.

Default judgments can sometimes be reversed and the case be re-opened. I have seen it before. They are not as final as you might thing. But the defendant has to be willing to re-appear. It may not be worth it because it might be uncollectible. Regardless, you can bet that Higbee or anyone else representing Grecco will be leveraging this judgment to irrationally scaring others into settling.

You have also helped Higbee & Associates by posting the "captivating" headline title you did. Most casual readers will read the title and not go any further. Their fears will be triggered by the title of your headline.

I have been in this business long enough so I don't really try hard to "convince" people to change their feelings or fears. You clearly are rattled by this and no one is going to guarantee you will not get hit with a lawsuit at some point however the small the odds are.  Given your ongoing concern about a lawsuit, you either need to negotiate a settlement yourself or go hire Oscar Michelen and get on his legal representation program which is very reasonable priced.

If you go to a random IP lawyer, chances are they will not be aware of the players as we do and how they operate. And chances are they will be pretty expensive.

155

Higbee Associates Letter & Lawsuits Forum / Re: Higbee continues to make demands!

« on: June 05, 2018, 07:04:58 PM »

I haven't looked into the specifics of what you are claiming as a $48K judgment. I think there has to be some extenuating circumstances to reach that number. Photographers don't just get 5-figure judgments because someone post a low-resolution image on a blog that is seen by 30 people. It doesn't work that way.

For example, People get killed everyday driving on the streets but that doesn't stop most of us from comfortably getting into the car to drive somewhere. That is because the extreme of people getting killed from driving typically has more detail to the story.

You need to do a lot more reading.  Higbee and crew are very happy you feel the way you do. They are also happy you posted that title on our forum because that is what people will focus on, not the details that matters.

I am hoping you are right about the odds of getting sued.  I am having a hard time not thinking about what if after I just read that a judge awarded Higbee $48,000.  I posted about it here

https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/judge-awarded-higbee-associates-$48-000-for-use-of-1-photo!!!

156

Higbee Associates Letter & Lawsuits Forum / Re: Higbee continues to make demands!

« on: June 05, 2018, 06:57:02 PM »

My comments inline...

I just received a copy of the sample law suit and it has me a little freaked out.  I have seen that they do file a lot of law suits. 

Filing lawsuits for other clients is not a direct indication they will do the same for another client. The client has to be will to incur the cost (most times) and the public and legal exposure for filing. The path is not a walk in the park and not an automatic process. Some clients are more litigious than others.  Other clients don't want the negative publicity or be in court records. You have to research the potential plaintiff, not just the lawyer.

I have gotten somewhat comfortable ignoring them and would not mind doing it some more.   My question is this, will the give me one more chance to settle this before they file the law suit an actual law suit, assuming that is what they will do next???

You will always have a chance to settle the case even after the lawsuit is filed simply because it is pragmatic. If a defendant is willing to cough up the settlement money, the lawsuit will go away very quickly. However, beware that settlement amounts tend to go up the further along the process goes.

If they do file it, what will it cost me to fight it.  They are asking for around $2,000.  Will that go up a lot if they file the law suit???

Everyone pays one way or another. If you represent yourself, it costs time, work, and energy in self-representation.  If you feel that you will end up settling this, your best bet is to simply hire Oscar Michelen and enroll in his legal representation program.  Much less expensive to take that tact. Everything gets more expensive IF you try to hire a lawyer to defend a lawsuit.

157

Higbee Associates Letter & Lawsuits Forum / Re: Higbee Email Follow Up Sequence

« on: June 05, 2018, 06:46:45 PM »

You are overthinking this. If you don't want to read the email, don't. 

You assume this is all run as a script.  It is true to some degree. But if the next email is NOT a script, what then? You won't read it?

You can't have it both ways. You either want to be informed to what is coming your way or you don't.

Even if someone posted a scripted "5th email", there is no guarantee that everyone gets the same scripted 5th email because by the 5th email is sent., people will likely respond in different way.  Not everyone sits quietly ignoring requests to take down a potentially infringing image.

Once someone removes an image (which is generally the appropriate response), there is a tacit acknowledgement someone was informed in the matter. Either that or it is a big coincidence that an image gets taken down shortly after extortion letter notices go out.

Unless someone is definitively going to execute the "go dark" strategy, people should considering reading and be informed. No one says you have to respond but one should be informed.

158

Getty Images Letter Forum / Re: Has pixsy ever taken serious legal action?

« on: May 12, 2018, 02:15:42 AM »

People can go check themselves without dealing with Pacer at http://dockets.justia.com.

And even if a "law firm" is involved, in many cases, there isn't much to worry about. It is the client, not the law firm, that says "yes or no" to going forward.  The toughest law firm can't do anything unless a photographer is willing to stick his name and neck out and take the risk he won't get some blow back or retaliatory actions. Sometimes there is even a countersuit which can be an unpleasant surprise for them to deal with.  The law firm won't be the ones suffering the consequences or have their reputations scarred online if they encounter a particularly upset victim.

They, like CopyTrack, are a German company.  They only have a mailing address in the US.  My guess is there is nothing to worry about as they are not a law firm. 

If you post the name of the copyright holder, I will check Pacer and see if they ever sued anyone.

159

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

« on: May 11, 2018, 06:05:06 AM »

Actually, in many situations and circumstances, people don't necessarily have to respond to a lawsuit at all. The worst that can happen is a default judgment. But most people blindly assume that they have to hire a lawyer and respond to a lawsuit.  They falsely believe once a lawsuit is filed, the next event is a court date.

The civil lawsuit is often the beginning of a long drawn out process for the plaintiff if the defendant chooses to respond and knows how to fight back. We have seen pro se people do very good job fighting back based on their sheer tenacity.

They can't comprehend that there are people who are savvy and determined to not be collectible can and do succeed.

Just because a party gets a default judgment, doesn't mean it is collectible at all. Masterfile learned that the hard way many years ago with their lawsuit campaign. The people who made the most money were the lawyers doing the work, not the plaintiffs.

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.

160

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

« on: May 11, 2018, 05:50:19 AM »

Very good informative answer. And your conclusion is spot on:

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.

You can have the exact same circumstances, infringed image, and demand letter but because each individual have different personalities, priorities, risk tolerances, knowledge levels, experience, and capabilities, the course of action can be very different. There are myriad ways of handling any given situation.  People want black and white answers but generally, there are none. There are probabilities.

Some people need the peace of mind even if it costs them money. Others value the money or principle more.

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.

161

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

« on: May 11, 2018, 05:44:17 AM »

I agree.  Calling them is never a good idea. Even filing a lawsuit to get statutory damages is not exactly without its share of time, energy, and work.  It is much easier and less costly to lie and fool legally ignorant victims to pay outrageous amounts of money.

The only way Higbee can file a suit for statutory damages is if the photo was registered with the copyright office within 3 months of publication.  Otherwise they would have to prove actual damages which is a bigger pain in the ass for them.  Making contact with them was you first mistake.  Giving them nomoney would be your biggest.

162

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

« on: May 11, 2018, 05:40:12 AM »

Never call them! If you must communicate, use email only.

And you ask if they can demand fees for a non-registered photo?  They are doing it now! They can "demand" anything they want because you can't stop them.  But that doesn't mean you have to blindly comply with their "demands".

And if it was so easy to get more money out of people, they wouldn't be talking to you. They would have done it already.

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??

163

Getty Images Letter Forum / Re: Safe to Ignore Copytrack Threats In the US?

« on: May 11, 2018, 05:34:10 AM »

I "misconstrued"?  I am not convinced I "misconstrued". Let's revisit the last sentence of your earlier post.

I understand how someone who does not have ethical concerns or is not worried about being sued may wish to ignore the letters or offer nothing, but I doubt that is most people.  It is definitely not my client.

To paraphrase your words, "someone who does not have ethical concerns".... "may wish to ignore the letters or offer nothing." It sounds like a sideways swipe to me.

I have no problems with advising many people to ignore the letters and offer nothing by virtue of the fact that the majority of these extortion letters ask for egregious amounts and totally unjustifiable. They routinely lie to people and use people's legal ignorance to coax people to pay up outrageous amounts of money over images that could never sell for $10.

You brought in the ethics discussion with your statement and I am telling you the ethics part is often in very short supply the minute most extortion letters are sent out with the garbage that is often printed out. My general opinion is that when that happens, similar reciprocal tactics is fair game.

While I am sure it was not done intentionally, I believe you, Mr. Chan, completely misconstrued what I said and just put words in my mouth that I never spoke (or wrote in this instance).

So, let me reiterate or clarify.  I never called anyone ethically challenged.  Nor did I say that people should pay over inflated demands.  I actually made it clear that I was advising my client to not pay Copytrack’s inflated price which seems to be 10x the market price. 

I did say that I do believe that most businesses are ethical and that when faced with the fact that they used another businesses property, they will pay a reasonable amount to compensate the owner and to reduce the risk of being sued. 

164

Getty Images Letter Forum / Re: Has pixsy ever taken serious legal action?

« on: May 11, 2018, 05:09:29 AM »

Pixsy themselves won't and can't sue unless they own the underlying copyrighted image. To my knowledge, they don't own any images whatsoever.

They represent their clients who own copyrighted images. Any lawsuits escalated to a lawyer to sue would be in the name of the clients.

165

Higbee Associates Letter & Lawsuits Forum / Re: Got my harassment letter. Image. Finding info scattered here.

« on: May 02, 2018, 10:32:10 PM »

My answers inline...

I have some high level questions that maybe can be answered and might help others:

1. What is the likelihood if these things going to actual court? (Maybe it's a case by case thing?)

Generally, very low. Lawsuits are very rare.  But there are a few exceptions and factors that could increase the likelihood.

2. Are they generally open to small settlements?

It depends what you consider "small" and who is offering the settlement.

3. Don't they have to inform me of the infringing item first before suing me? The first contact from them was the demand for money.

No one has to inform you of anything.