Messages

361

Higbee Associates Letter & Lawsuits Forum / Re: Beware of Photographer Nicholas (Nick) Youngson of NYPhotographic.com

« on: June 15, 2017, 02:11:25 PM »

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 <[email protected]>
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

362

Getty Images Letter Forum / Re: Alternative Source of Images to Getty Images: Shutterstock & Fotolia

« on: June 14, 2017, 07:07:41 PM »

I have an update. I would like to add my vote to CanStockPhoto and Pond5.

I am taking a liking to CanStockPhoto since they have good pricing (if you use their credit system) but will also give waivers for credit and attribution. I obtained mine in writing by simply email them through their tech support page.

Section 6: Credit Attribution
If the Content is used in print media in Journalistic Usage, the credit line "© Can Stock Photo Inc. / [Artist’s username]" must appear adjacent to the Content. If the Content is used in a film, television production, documentary, or similar audio/visual or multimedia product in a Journalistic Usage, the credit line “© Can Stock Photo Inc. / [Artist’s username]” must appear in the audio/visual production credits. If the Content is used online in a Journalistic Usage, a link to www.canstockphoto.com shall appear adjacent to the Content. Omission of this link shall not constitute a breach of the terms of this Agreement provided that Licensee remedies such omission upon request from Licensor. Licensor may waive this credit line or link requirement, upon request, via email or other writing.

We kindly ask that you include a short artist credit if you are using the file in an journalistic manner (e.g. newspaper articles, blog posts), or for TV/movie use. If you ask us nicely, we might waive this requirement. A credit is NOT required for any other usage (books, advertising, decoration, website design, etc), although it’s appreciated!
=========

In the fine print, many stock photo companies require you to give attribution to the company and the copyright owner even if it is just a blog post. I didn't care for that very much. Pond5 wants you to credit to imaged used in editorial uses but in my phone call with them, they seemed to allow latitude. She told me that if a link isn't practical, a text notation should be fine.

==========

8. Credit Attribution.
If the Content is used in an editorial context in a Production that is posted online, you will accompany the Production with a credit line hyperlink to www.pond5.com that reads "Stock media provided by [Content contributor Name]/ Pond5" or substantively similar language.

For all other Productions incorporating the Content where crediting is customary or where other such credits are provided, you will use your reasonable commercial efforts to accompany the Production with a credit line that reads "Stock media provided by [Content contributor Name]/ Pond5" or substantively similar language.
The unintentional omission of credit attribution provided for above will not be considered to be a breach of this Agreement as long as you promptly cure the same upon written notice.

363

Getty Images Letter Forum / Re: Can any potential lawsuit be enforced on a non US citizen?

« on: June 13, 2017, 08:44:19 PM »

The businesses that have the most to worry about are the ones that have substantial assets like buildings, office, employees, etc.

The businesses that have the least to worry about are the ones that operate from home, have no employees, and assets consisting of a computer, desk, and a chair.  Because the only thing of value is the bank account. But if a bank account were to be closed, there is no meaningful asset.

But that assumes that someone has the wherewithal to spend money and do the work to file a lawsuit.

If the assets are in the U.S., there is more to worry about than if the majority of assets are in the UK.

It is going to take some effort for Higbee to try to file in the UK. But they may not have to depending on how much "business presence" is in the U.S.

364

Higbee Associates Letter & Lawsuits Forum / Re: New Higbee & Associates Letter on Behalf of Adlife Marketing (food images)!

« on: June 07, 2017, 01:36:46 AM »

If you expect a Step 1, Step 2, Step 3, to get a magical number you like, it won't happen because that is not how it works.  This is the art of negotiation and playing chicken.  They want your money. You want them to go away. Somewhere in between is the settlement.

The people with the least patience and the least risk tolerance are the ones who pay the most. You think they are irrational. They aren't.  They just know that most people are legally ignorant and most people are easily intimidated. I am not saying you should be fearless or acknowledge the small possibility of a lawsuit.

But your mindset is what is hurting you. You don't really "get it" yet.  And there are some people who pay ZERO. You won't like the answer but for some, they really don't have the money and the only option they have is to go dark.  And those are the people who often get the best deals, the ones who have no choice but to hide out.

I am not saying you should do that but there is a wide spectrum of behavior by victims. We try to help people think outside of the box and get them educated on the intimidation tactics as well as the facts.

I've read quite a bit on here and I guess the takeaway is it's just up to my risk tolerance so I'm still not sure what to do. I'm unnerved by them just reneging on their last offer a couple days after making it. How do you negotiate with people who are irrational? It seems unlikely they'd sue but if they're crazy who knows? Has anyone settled with higbee/adlife for a not gigantic amount?

365

Higbee Associates Letter & Lawsuits Forum / Re: New Higbee & Associates Letter on Behalf of Adlife Marketing (food images)!

« on: June 07, 2017, 01:29:32 AM »

I am confused. If you have a lawyer, why are they not handling this for you?

The key to getting a lower settlement amount is if they think they won't get anything from you or if they think you are "small". Hence someone is going to have explain and negotiate with them.  The more they feel you want the settlement, the less likely they will go down in the settlement amount.

At some point, you will have to make a stand and give a "final offer". And if you are unwilling to do that and you are "flexible", then it is likely they will sense that and hold their ground. After all, they have 3 years to work on you.

The people who do best financially are generally the ones who have the most staying power and commitment. Lawsuits don't mean anything if they are not collectible. And if you honestly don't think they have a case, that is your opinion. You should explain it to them and pay nothing.

I've received a series of letters and calls to my lawyer from an underling at higbee on behalf of ad life. They started at 8000, came as low as 500 and suddenly a different person wrote who seemed to not know about any of the previous calls and effectively rescinded the 500 and went back to 2000. I don't think they have a case but they're clearly not negotiating in good faith and I obviously want to avoid a lawsuit. Anyone have advice on how much they had to pay to make these people go away? I'm not a business, just a former blogger. Advice much appreciated!

366

Getty Images Letter Forum / Re: Pixsy demand email

« on: June 05, 2017, 07:39:41 PM »

My comments inline...

If you disagree with how an attorney communicates, you take it up with the related bar association or relevant regulatory body, who will investigate whether said attorney is acting outwith codes of conduct and/or the law.  If you think copyright law is unjust or inequitable in your country, work to change it.

So, this is why I stay involved and instill a rebel "attitude" with the community. What you suggest is a conventional approach to solving matters. Here on ELI, if a lawyer does something he isn't supposed to do, he might get rewarded with the Streisand Effect or poor remarks/comments on lawyer rating websites.  Or we contact other websites and let them help expand the Streisand effect further. Many copyright collection lawyers have gotten out of the business after being called out for engaging in bad behavior.  No one had to file a state bar complaint over the matter. And if people disagree with the copyright law, people have the right to go dark and not pay at all. It is then up to the accuser to pursue it.

Here's a thought for you to consider: if you think that issuing settlement letters is such a predatory "scam" that only serves to make a "quick buck" for property owners and their attorneys - how would you feel if they omitted this step of the process and went straight to filing a lawsuit without any prior warning?

Masterfile tried this back in 2012. And while I have no direct evidence, I have a strong suspicion many of those lawsuits resulted in uncollectible judgments. It made the lawyers richer and Masterfile poorer. Masterfile didn't just stop out of the goodness of their heart.  They stopped probably because it didn't work.  They generated lots of negative publicity, legal fees for themselves, and drove their victims underground into hiding. The RIAA also did this years ago trying to sue a bunch of ordinary people on music piracy.  The music industry ultimately got brutalized and the negativity dominated the news and tarnished everyone including the artists. The RIAA ultimately realized they were creating more harm than good and essentially creating enemies with their audience and customer base.

If you see someone taking your property, do you confront them personally with a "please stop", or do you call the police? Maybe you're allowed to own a personal firearm wherever you live, and thus have that to call upon as an enforcement of your words. Do you simply point it at the thief, fire a warning shot, or unload on them?

Piracy and infringements while potentially harmful economically will never compare to physical danger so that is a bad analogy.  It is a civil matter. And honestly, MOST people will never equate small infringements with criminal behavior.

I suspect most people would say "Well, it depends on the situation and circumstances", arguing that there is no one-size-fits-all response that would be correct for every instance.
The same goes for resolving infringements.

This, I do agree!

367

Getty Images Letter Forum / Re: Getty extortion letter ruined my memorial day

« on: June 01, 2017, 04:48:12 PM »

My comments inline...

Screw the settlement date.  That's an arbitrary number designed by them to increase their cash flow.

Yes, artificial and arbitrary date.

My take is that Getty was complicit in this.  As a business, I feel it is incumbent upon them to let people know that "Royalty Free" still requires a license and payment.  This was a time when Getty's business was changing a lot, as were their web sites.

That is true.  Getty has been through LOTS of changes. They were once a public company until around 2008 then they went private. And have continued to do financial restructuring as well as management changes and quite a bit of employee turnover.

I chose to fight.  I spent a lot of time on it, but I was not going to be taken advantage of.  You can find my specific story on this site.  I detailed it after my Statute of Limitations had passed. 

We can't seem to get rid of Stinger. He still wants to hang out with us and help people!  :-)

How you choose to handle your specific situation is up to you.  I think it is wrong that they can ask you to produce a license you may or may not have gotten 12 years ago.  The IRS does not even expect people to keep records that long.

Some good points here.

Good luck with your fight and keep educating yourself on this site.  There is lots of valuable information.  Tactics and players have changed over the years.  The one thing that is constant is that Getty sends out a lot of copyright infringement letters threatening legal action and files very few cases.

Agreed. Or for people who don't want to research so hard, enroll in the 30-minute ELI Phone Support Program and I will lay it out for people!

368

Getty Images Letter Forum / Re: Pixsy demand email

« on: June 01, 2017, 04:40:35 PM »

DavidvGoliath,

I must say you are an interesting ELI contributor. You are nearly the lone wolf here (although Robert (Buddhapi is a semi-pro photographer) but honestly, this is not a good place for your arguments. It is a bit hard-core for most of us.  I am sure you know ELI is about "defense" and we discuss legal tactics and strategies.

And what KingKendall says is right in many ways. He (like most of us) are mostly in the "defense" side and that is where most of the discussions slant.  We are not on the "offense" / photographer side because there are TONS of photography forums where your views are favored and discussed. ELI has a lot of rebel types.  :-) KingKendall telling someone to not be so quick to pay up or buckle to intimidation is a perfectly legitimate response. I agree with some of his sentiments if not his wording.

And there are people who do take advantage of people's legal ignorance. It is also true many people are not intentionally trying to hurt photographers either.

Certainly, you are free to contribute as you have been but ELI will never become a photographer's forum, plain and simple. And we don't pretend to be.  We have differences of opinions and perspectives.

369

Getty Images Letter Forum / Re: Getty using Swiss lawyer to pursue innocent infringement by mom & pop company

« on: June 01, 2017, 04:17:20 PM »

This is primarily a website assisting U.S. and Canadian victims. We occasionally assist those in other English-speaking countries such as UK, Australia, and New Zealand. We don't hear much from people from non-English speaking countries.

Given that you say you have little money to hire anyone, it becomes a moot issue. You can try to use some of the advice on these forums to write a response or rebuttal.

But regardless of any legal proceedings or judgment, the general rule of thumb is that it is very hard to collect money from those that are unwilling or don't have it.  You can make a counter-offer to settle or you can simply stay quiet.

You should assume that most of these people rely on intimidation and the fact that most people are legally ignorant. And most Getty cases don't result in lawsuits. So you can take some comfort in that.

Good luck to you. Let us know if anything changes.

370

Getty Images Letter Forum / Re: Sanders Law is now Representing RM Media Ltd. (UK Photographer Nick Youngson)

« on: May 25, 2017, 08:54:28 PM »

Good question. Not sure yet. I am keeping my ear to the ground.

How does this change affect previous letter recipients?

371

Getty Images Letter Forum / Re: Sanders Law is now Representing RM Media Ltd. (UK Photographer Nick Youngson)

« on: May 25, 2017, 08:52:58 PM »

My comments inline...

I'm curious.  The $5000 extortion letter I got from Higbee is for his client who happens to be from the UK.  He's a legitimate photographer from what I gather on his website.  His name has not come up anywhere related to Higbee or making extortion attempts on people when I google it, just his website comes up.

There is plenty of information and reporting on this site about the Higbee and Youngson connection. Where do you think the reporting comes from?  The info we get comes directly from victims and their submissions.  Not sure what more you are looking for. No one else cares about this kind of minutia except this website. It's what we do.

Anyway, if I'm unable to negotiate a reasonable settlement with Higbee, and he decides to go to court, does that mean his client from the UK will have to come to my state to fight this?  If so, seems like an awful lot of time and money to spend for a picture that he offers for only $250. 

I am not going to get into a long discussion here. But "decided to go to court" has many pieces to it. You don't "just decide to go to court" because you want to.  There is an entire process and it costs time and money.

I'm still debating about how to handle this.  As of now I'm thinking of calling Higbee and offer him $250 for the picture and leave it at that.  I know he'll likely reject it but I can't imagine they'd come after a small ministry that doesn't have that kind of money.  We're so small that I don't even get a salary from it.

Why call and open yourself up to unnecessary exposure? If you want to make the offer, send them a letter or email. If you are small and don't have much money, that doesn't sound like an attractive lawsuit to me. Further, supposedly there is nothing to get, right?

372

Higbee Associates Letter & Lawsuits Forum / Re: Turning the Tables on the Accuser: MyWebGrocer vs. Adlife Marketing

« on: May 25, 2017, 06:30:13 AM »

In the interest of fairness, I have gone back to the review the docket more carefully.

https://ia801509.us.archive.org/19/items/gov.uscourts.vtd.27347/gov.uscourts.vtd.27347.docket.html

Although MyWebGrocer initially went on the offense, Adlife Marketing is punching back by filing their own counter-claim against MyWebGrocer.  Essentially, if Adlife Marketing ever had the intention of filing a lawsuit against MyWebGrocer, they saved themselves the $400 filing fee.

MyWebGrocer appears to be claiming that they got their licenses through a combination of the acquisition of Nexpansion in 2003 as well as their own recent purchases from an image agency. There were five images in this dispute but it seems by the counter-claim it has narrowed down somewhat to three images where Adlife is saying they can find no license agreement of the three images for either MyWebGrocer or Nexpansion.

Adlife states that it isn't even possible for MyWebGrocer to license a "pork rib" photo because it was never made available to anyone to license and resell.

This case is going to get messy because most companies (even if they source all images properly on the up and up) are not likely to have every shred of email receipt and document to prove they properly paid for it. This is further complicated by the fact that Adlife made their images available then terminated the relationship.

As Robert of Copyright-Trolls.com previously reported, even people who legitimately bought their images from iStock (part of Getty Images) have to fight pretty hard and rely on iStock's goodwill help to retrieve records of their previous Adlife image purchases.

We crack on Getty Images all the time for what they do but even I would be forced to admit everything I have heard from people caught up in the Adlife / iStock mess, iStock seems to have generated a great deal of goodwill in their effort to help their customers against Adlife accusations of copyright infringement.

373

Higbee Associates Letter & Lawsuits Forum / Re: Turning the Tables on the Accuser: MyWebGrocer vs. Adlife Marketing

« on: May 25, 2017, 06:06:35 AM »

Latest development on the Webgrocer vs. Adlife case. 

Attorney Gregory Howard of Donovan O'Connor & Dodig LLP (Bennington, VT) filed a motion to withdraw on behalf of himself, Kenyon D. Colli and Jack Pirozzolo of Sidley Austin (Boston, MA) in the WebGrocer case. The whole legal team is leaving.

The motion states that "Adlife no longer wishes to be represented by the above counsel. Adlife intends for substitute counsel to file an appearance with this court in short order".

The lawyers seems to have gone out of their way to step aside quickly and allow Adlife's new legal team to make their entrance.

On its face, the appearance is that Adlife Marketing (CEO Joel Albrizio) is firing his legal team. But part of me wonders if the legal team wanted to get out of the case and simply a bullet in the motion's narrative with this face-saving motion.

Either way, the motion was written elegantly and appears to be a professional exit by the outgoing lawyers.

It will be interesting to see who and what law firm(s) replaces these three lawyers.

Recently, Mathew Higbee & Associates (based in California) took on Adlife's copyright collection business. Will they make an entrance as "pro hac vice" (out of state) lawyers and take the lead?  Or will it be someone else?  And what Vermont lawyer is willing to step up to be local counsel?

Should be very interesting.

374

Getty Images Letter Forum / Re: "Private" emails/letters written by Masterfile collections lawyer, Leslie Burns

« on: May 25, 2017, 05:40:14 AM »

Not kidding. A direct quote of the letter sent to me. I am conscientious to try to get my facts straight. In this case, it was too easy. Leslie wants people to just roll over quickly and easily so she can get her commission.

Not gonna happen with anyone who has any smarts and done any research.

375

Getty Images Letter Forum / Re: Sanders Law is now Representing RM Media Ltd. (UK Photographer Nick Youngson)

« on: May 25, 2017, 05:33:23 AM »

Clist,

I think you are on the right track in your thinking. It is consistent with my thinking.

When ELI started, most of the extortion letters came from the stock image agencies and worked through their employed clerical staff. As such, the company took the heat for the letters, not the employees. Once in a while certain employees would get called out by name but most of the time, the company name took the heat.

If the letters were sent by the lawyers, then the lawyers and their law firm would often take the heat hiding the fact that the end client ultimately had final say in what gets settled or not, or whether a lawsuit gets filed or not. We had many lawyers once they were written about publicly engaging in this business, they high-tailed out of it. One female Canadian lawyer, I was told, start going bat-shit crazy crying on the phone with Oscar's law firm at the time. She was so desperate, she even got a NY lawyer to send me a letter to take down the posts about her. The thing was, we never would have known her name if a letter recipient hadn't gotten upset and asked for our help.  It was pretty sad, she even tried to be nice to the person she sent the extortion letter to and tried to sweet talk him to convince us to take down the posts about her. Ultimately, she changed her professional name and her law business name and I left it alone. She quit the business and nothing is to be gained further by naming her. She left us alone, we left her alone.

In any case, photographers are coming out of the woodwork and getting into the extortion letter game.  Many photographers are getting unwanted "recognition" for the extortion letter racket so some of them are setting up corporate entities to hide their names.

For example, one photographer I had an online clash/debate with, the photographer (who got real paranoid about one of my posts thinking I was "targeting" him), it made me pay very close attention to how he operates. I did a cursory research on his corporation and listed his website and he got paranoid and thought we launched a supposedly "new program" and supposedly went out of our way to piggyback his website name. He was referring to Oscar Michelen's Defense Letter Program established back in 2008.   The fact of the matter I only added his website name because we already had a number of people gripe and send me copies of his multi-thousand dollar "invoices".  [This paragraph has been modified to remove incorrect information that I initially thought was true but does not appear to be.]

The point being is that I am noticing all kinds of interesting cover tactics being used by photographers to hide/obfuscate their copyright collections tactics.  They want to demand outrageous amounts of money based on their say-so, scare tactics, and legal threats but they don't want people to know who they are. 

Nick Youngson through Higbee & Associates sprayed a lot of people with their outrageous $5K letters. It might be that there is now too much association and written about the Nick and Higbee association that the shift to Sanders Law using RM Media Ltd. and asking for lower amounts is a rebooted program.

Again, none of us have any way of knowing.  But as long as people ask, demand, and threaten these bullshit amounts of money, people will always report and "out" them. Since 2008, we almost never new solicit information. It just comes to us.

Sometimes it lands right here on the ELI Forums unexpectedly, sometimes it gets emailed to me privately, sometimes Robert of Copyright-Trolls.com gets it, sometimes Greg of CabaLaw.org gets it, or some other place. On the Internet, people have a habit of reporting and sharing information when they are upset, angry, and need help.

Ahh, i see.

In regards to this Sanders law situation, what do you speculate the motive is here?

To separate the individual from the business entity just in case of backlash?

?