61
Getty Images Letter Forum / Re: Pixsy Letter (photographer has history of suing)
« on: August 17, 2018, 02:08:04 AM »
I have to hand it to you Unfairly Targeted, your steadfast commitment to delusion and anger is something special.
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62
Getty Images Letter Forum / Re: Pixsy Letter (photographer has history of suing)
« on: August 15, 2018, 03:03:10 AM »
Your argument is flawed, again. Getty owns istock, but Istock is not Getty. istock is a discount line of royalty free images. Getty focuses on rights managed images that cost much more. So, Schwabel is probably getting paid much more than you think.
Go on to Getty’s site and you will see images that get licensed for hundreds and thousands of dollars. There are higher end agencies that sell images for even more money.
Go on to Getty’s site and you will see images that get licensed for hundreds and thousands of dollars. There are higher end agencies that sell images for even more money.
63
Getty Images Letter Forum / Re: Pixsy Letter Even Though Image Isn't Hosted On Website
« on: August 15, 2018, 02:52:57 AM »
Robert’s answer is based on a 9th Circuit case that has been rejected or not applied in other circuits. Inline linking is not a valid defense outside of the 9th Circuit. The Bietbart case from the 2nd Circuit, which does not require possession of the image, seems to be the opinion more courts are adopting.
However, the fact that the clam is being pursued by a non-law firm and a company based in Germany should eliminate any fear of getting sued. I have not heard of Pixsy even referring cases to attorneys in the U S.
If you are fine with not paying for something you may have used, you can ignore Pixsy.
However, the fact that the clam is being pursued by a non-law firm and a company based in Germany should eliminate any fear of getting sued. I have not heard of Pixsy even referring cases to attorneys in the U S.
If you are fine with not paying for something you may have used, you can ignore Pixsy.
64
Getty Images Letter Forum / Re: Pixsy Letter (photographer has history of suing)
« on: August 08, 2018, 08:09:02 PM »
Unfairly Targeted may have enough evidence to survive a motion to dismiss if he filed a claim based on infliction of emotional distress against Tom Schwabel. Schwabel may have damaged him for life. He is clearly now not able to think rationally or coherently about copyright.
Having anger is one thing. Having lingering anger that drives one to make irrational and unfounded assertions, especially is the context of giving someone legal advice is quite another.
In my reading of this board’s older posts, particularly some of the older posts by Mr. Michelin, the mindset was the demands being made are outrageous, but if you used the image, make an appropriate offer to compensate for the use and, maybe, part of the costs incurred. That is a very rational and just mindset that balances regards for the copyright holder with awareness that some infringers are less sophisticated, or less able to pay or less culpable than others, and therefore, should not be subject to outrageous demands or pay inflated amounts. There was, and for the most part remains a nice balance of respect for people’s intellectual property rights and desire not to see people get exploited in a rigged game.
That is a massive contrast from the mindset reflected in posts by Unfairly Targeted. His posts insult any copyright holder who wants to enforce their rights. He assumes every photo has no value (despite the obvious fact that it does because someone used it). He always advocates ignoring requests for any compensation. He almost always advocates harassing or making anyone’s life miserable if they try to protect their copyright. I won’t even mention the constant gross misstatements of law.
If Tom Schwabel reads these boards and is the bastard that UT says he is, then Shwabel is probably laughing his ass off at the rants by Unfairly Targeted, knowing that he knocked him off his nut for several years.
I think DvG’s advice about letting the anger go is sage in this instance.
As far as a contempt order arising from a judgment, DvG is also correct. That is just one of many bad things that can result from a judgment. Once there is a judgment, there can be a debtors exam. Guess what you get if you don’t show up for one of those. The correct answer starts with “C” and it also comes with a special coupon for free ride in the back of a police car, called a warrant.
I am sure user “A Lawyer” can point to more examples that further illustrate the ignorance and irresponsibleness that comes with the statement “who cares?. It’s very hard to get money from someone who doesn’t want to pay anything, even with a judgment.” I pity anyone who relies on such a statement.
Having anger is one thing. Having lingering anger that drives one to make irrational and unfounded assertions, especially is the context of giving someone legal advice is quite another.
In my reading of this board’s older posts, particularly some of the older posts by Mr. Michelin, the mindset was the demands being made are outrageous, but if you used the image, make an appropriate offer to compensate for the use and, maybe, part of the costs incurred. That is a very rational and just mindset that balances regards for the copyright holder with awareness that some infringers are less sophisticated, or less able to pay or less culpable than others, and therefore, should not be subject to outrageous demands or pay inflated amounts. There was, and for the most part remains a nice balance of respect for people’s intellectual property rights and desire not to see people get exploited in a rigged game.
That is a massive contrast from the mindset reflected in posts by Unfairly Targeted. His posts insult any copyright holder who wants to enforce their rights. He assumes every photo has no value (despite the obvious fact that it does because someone used it). He always advocates ignoring requests for any compensation. He almost always advocates harassing or making anyone’s life miserable if they try to protect their copyright. I won’t even mention the constant gross misstatements of law.
If Tom Schwabel reads these boards and is the bastard that UT says he is, then Shwabel is probably laughing his ass off at the rants by Unfairly Targeted, knowing that he knocked him off his nut for several years.
I think DvG’s advice about letting the anger go is sage in this instance.
As far as a contempt order arising from a judgment, DvG is also correct. That is just one of many bad things that can result from a judgment. Once there is a judgment, there can be a debtors exam. Guess what you get if you don’t show up for one of those. The correct answer starts with “C” and it also comes with a special coupon for free ride in the back of a police car, called a warrant.
I am sure user “A Lawyer” can point to more examples that further illustrate the ignorance and irresponsibleness that comes with the statement “who cares?. It’s very hard to get money from someone who doesn’t want to pay anything, even with a judgment.” I pity anyone who relies on such a statement.
65
Getty Images Letter Forum / Re: email from Leslie Burns
« on: July 27, 2018, 07:59:51 AM »
Apparently, Unfairly Targeted was so aggrieved by a claim by Tom Schwabel that he now writes with more passion than he does wisdom or knowledge.
As much as Unfairly Targeted may wish it were not the case, Copyright claims can have very significant damages even if the image was not timely registered. The photographer can recover lost licensing revenue and a disgorgement of profit, which it sounds like there probably isn’t any profit generated on a personal twitter posting.
Seeding is highly unlikely. It is also next to impossible to prove and does not give rise to any defense to copyright infringement. At best, it might mitigate damages.
From what I can tell, demand amounts created by copyright holders are a bit arbitrary, but so are the amounts that judges award. There is no precise formula that either follow. That being said, a plaintiff who rejects a reasonable pre-litigation offer can look bad in court. The same is true for defendants who reject reasonable offers.
In NY, courts typically award 3 to 5 times the licensing fee when calculating statutory damages. CA, which is in the 9th Circuit, has no such multiplier that I am aware of, but they tend to be very pro-copyright holder; it is the home of Hollywood after all.
For what it is worth, In the few months I have been following this stuff, I have not heard of copyright holders pursuing non-commercial social media postings. It seems odd.
It is good you have an attorney. Leslie Burns is only admitted to practice law in CA. Your attorney can explain how that fact, your location, the copyright holder’s location and that state’s longarm statute can impact the odds of the claim going to litigation.
As much as Unfairly Targeted may wish it were not the case, Copyright claims can have very significant damages even if the image was not timely registered. The photographer can recover lost licensing revenue and a disgorgement of profit, which it sounds like there probably isn’t any profit generated on a personal twitter posting.
Seeding is highly unlikely. It is also next to impossible to prove and does not give rise to any defense to copyright infringement. At best, it might mitigate damages.
From what I can tell, demand amounts created by copyright holders are a bit arbitrary, but so are the amounts that judges award. There is no precise formula that either follow. That being said, a plaintiff who rejects a reasonable pre-litigation offer can look bad in court. The same is true for defendants who reject reasonable offers.
In NY, courts typically award 3 to 5 times the licensing fee when calculating statutory damages. CA, which is in the 9th Circuit, has no such multiplier that I am aware of, but they tend to be very pro-copyright holder; it is the home of Hollywood after all.
For what it is worth, In the few months I have been following this stuff, I have not heard of copyright holders pursuing non-commercial social media postings. It seems odd.
It is good you have an attorney. Leslie Burns is only admitted to practice law in CA. Your attorney can explain how that fact, your location, the copyright holder’s location and that state’s longarm statute can impact the odds of the claim going to litigation.
66
Higbee Associates Letter & Lawsuits Forum / Re: Judge Awarded Higbee & Associates $48,000 for Use of 1 Photo!!!
« on: July 23, 2018, 12:07:29 AM »
That is very kind of you to offer. While I am sure I would enjoy your company and the conversation, I must regretfully decline. I have privacy concerns that are heightened by the nature of this forum. My caution aside, I also spend most of my evenings as a caregiver and my days are usually spent sleeping/recovering or tending to my affairs. It was generous of you to offer.
67
Getty Images Letter Forum / Re: another copytrack letter
« on: July 19, 2018, 06:56:06 PM »
Copytrack, like Pixsy, are a non-law firm based in Germany. They cannot sue you. While they might be able to have a US based law firm commence litigation. My thought is that if the claim was litigation worthy, it would have started at a law firm. If you used the image without a license, I would either offer a small amount, sub-$200, in hopes they accept it or to mitigate liability if they refer it to a law firm, which is very unlikely. Otherwise, I would just ignore them.
68
Higbee Associates Letter & Lawsuits Forum / Re: Why would a plaintiff need protective order in a Copyright lawsuit?
« on: July 19, 2018, 01:21:19 PM »
It also looks like the parties/attorneys are playing nice. The Defendant stipulated to the request. Smart.
69
Higbee Associates Letter & Lawsuits Forum / Re: Why would a plaintiff need protective order in a Copyright lawsuit?
« on: July 19, 2018, 01:18:44 PM »
Protective orders are pretty common in civil litigation. The FRCP gives parties the ability to seek discovery on anything that could lead to relevant information. However, courts are also willing to grant reasonable orders to protect a wide range of things from trade secrets to personal identifying information, such as social security number or bank account numbers that might appear on discoverable documents. It could be a hundred different things.
70
Higbee Associates Letter & Lawsuits Forum / Re: Prepared Food Photos - Small Claims Court
« on: July 05, 2018, 05:40:38 PM »
Good for you for keeping records of your purchases and fighting back.
I am curious, did Adlife try to resolve this prior to filing a small claims case? If so, ho much were they asking for?
I am curious, did Adlife try to resolve this prior to filing a small claims case? If so, ho much were they asking for?
71
Higbee Associates Letter & Lawsuits Forum / Re: A Victory For The Guys That Higbee Targets??
« on: July 05, 2018, 05:36:35 PM »
The attorney for the copyright holder, Russell Brammer, is attorney David Christopher Deal. According to his website, http://www.davideal.com, Mr. Deal has experience litigating copyright matters. His site claims they have handled thousands of cases.
The opposing attorney was from Kirkland Ellis, a very large and expensive law firm, probably more than Mr. Deal was hoping to have to deal with on this type of case. My guess is that this was a pro bono case for Kirkland Ellis. Otherwise, that nonprofit film festival would have paid more than $20,000 to take that case through summary judgment.
However, since this is an area of law in which Mr. Deal specializes in, he may appeal this case without charging the client. No attorney wants their name associated with a bad published ruling in their area of expertise.
The opposing attorney was from Kirkland Ellis, a very large and expensive law firm, probably more than Mr. Deal was hoping to have to deal with on this type of case. My guess is that this was a pro bono case for Kirkland Ellis. Otherwise, that nonprofit film festival would have paid more than $20,000 to take that case through summary judgment.
However, since this is an area of law in which Mr. Deal specializes in, he may appeal this case without charging the client. No attorney wants their name associated with a bad published ruling in their area of expertise.
72
Higbee Associates Letter & Lawsuits Forum / Re: A Victory For The Guys That Higbee Targets??
« on: July 05, 2018, 01:53:47 PM »
I think Robert is probably right, this case is not that significant and the judge probably got it wrong. But it does show the risk of litigating cases.
First, this is a District court judge, not a Circuit Court, so it will not carry much weight.
Second, the facts are pretty unique. Less than 1/3 of the actual image was used and the user was a registered non-profit who used it in a non-commercial context. I would definitely raise this case in negotiations if my client’s facts matched this case.
The fact that this case was litigated seems like such a waste. My guess is that either the copyright holder was overreaching in their demand amount or the user refused to pay anything. Getting to this outcome would cost most defendants at least $5,000. It will be twice that if it gets appealed. It could also be that someone wanted to fight it out on principle.
Good reminder that you never know what a judge will do and litigation is risky for everyone.
First, this is a District court judge, not a Circuit Court, so it will not carry much weight.
Second, the facts are pretty unique. Less than 1/3 of the actual image was used and the user was a registered non-profit who used it in a non-commercial context. I would definitely raise this case in negotiations if my client’s facts matched this case.
The fact that this case was litigated seems like such a waste. My guess is that either the copyright holder was overreaching in their demand amount or the user refused to pay anything. Getting to this outcome would cost most defendants at least $5,000. It will be twice that if it gets appealed. It could also be that someone wanted to fight it out on principle.
Good reminder that you never know what a judge will do and litigation is risky for everyone.
73
Higbee Associates Letter & Lawsuits Forum / This Will Be Interesting To Watch
« on: July 02, 2018, 09:04:09 PM »
I came across something interesting this weekend while trying to compile a list of results on Higbee’s copyright cases (an off again, on again late night project that is taking way more time than I thought. They file a lot of lawsuits and I am focusing on ones that have motions filed).
Anyway.
A New York based law firm is representing itself in a lawsuit against RM Media, Nick Youngson, Higbee & Associates and Matthew Higbee. The case is Federal court in the Southern District of New York. The Plaintiff is asking for declaratory relief stating that the use of one of RM Media’s photos does not constitute copyright infringement and for damages under a New York State consumer protection statute. A license to use the photo was made available for sale or via a Creative Commons license.
Higbee Associates has filed a motion to dismiss on behalf of themselves and Higbee, not RM Media or Youngson. There is no indication that RM Media or Youngson, who are in the UK, have been served.
While it will be fun to watch and it is impossible to predict what a judge will do, I do not think this will be a problem for Higbee or RM Media.
Higbee’s motion to dismiss raises several solid defenses, including that they are not a party of interest to the copyright claim, that their communication was protected by New York’s litigation privilege, plaintiff did not incur damages, and that the plaintiff, who is a law firm, could not reasonably argue that they did not understand the contract, which is a Creative Commons contract. Defendants just need to prevail on one defenses to win the motion to dismiss. Plaintiff’s opposition is due in about 12 days.
Plaintiff is arguing that the language on RM Media’s site conveys a license for free and that the user’s failure to provide attribution is a violation of a contract, not a violation of copyright law. In lawyer’s terms, they are saying the attribution is a violation of a convenant, not a condition. It is a fact specific determination that will be largely based on NY state law. The consumer claim essentially says that defendant’s demands are deceptive and violate section 349 of NY business code. I doubt these claims will fly, and I also suspect that someone else, like Oscar Michelin, would have tried this approach if there was decent chance they would fly.
The outcome will not necessarily disrupt RM Media’s use of Creative Commons or enforcing their rights against those who do not meet the terms of the license. If the judge rules in favor of the plaintiff, it may impact some of the pending claims in New York, but RM Media will likely be able to fix the problem going forward by tweaking the language on its page to make clear that attribution is a condition.
The complaint seems hastily prepared. The case may be more about saying FU to RM Media and Higbee than it is about winning.
Regardless, it will be interesting to see how RM Media handles being on the defense and what defenses they raise, assuming that they ever get served. While it looks like RM Media has sued several infringers in the US, they have not been sued as far a as I can see.
I hope this goes a few rounds. More to follow. I will post the pleadings online as soon as I figure out how to do that.
Anyway.
A New York based law firm is representing itself in a lawsuit against RM Media, Nick Youngson, Higbee & Associates and Matthew Higbee. The case is Federal court in the Southern District of New York. The Plaintiff is asking for declaratory relief stating that the use of one of RM Media’s photos does not constitute copyright infringement and for damages under a New York State consumer protection statute. A license to use the photo was made available for sale or via a Creative Commons license.
Higbee Associates has filed a motion to dismiss on behalf of themselves and Higbee, not RM Media or Youngson. There is no indication that RM Media or Youngson, who are in the UK, have been served.
While it will be fun to watch and it is impossible to predict what a judge will do, I do not think this will be a problem for Higbee or RM Media.
Higbee’s motion to dismiss raises several solid defenses, including that they are not a party of interest to the copyright claim, that their communication was protected by New York’s litigation privilege, plaintiff did not incur damages, and that the plaintiff, who is a law firm, could not reasonably argue that they did not understand the contract, which is a Creative Commons contract. Defendants just need to prevail on one defenses to win the motion to dismiss. Plaintiff’s opposition is due in about 12 days.
Plaintiff is arguing that the language on RM Media’s site conveys a license for free and that the user’s failure to provide attribution is a violation of a contract, not a violation of copyright law. In lawyer’s terms, they are saying the attribution is a violation of a convenant, not a condition. It is a fact specific determination that will be largely based on NY state law. The consumer claim essentially says that defendant’s demands are deceptive and violate section 349 of NY business code. I doubt these claims will fly, and I also suspect that someone else, like Oscar Michelin, would have tried this approach if there was decent chance they would fly.
The outcome will not necessarily disrupt RM Media’s use of Creative Commons or enforcing their rights against those who do not meet the terms of the license. If the judge rules in favor of the plaintiff, it may impact some of the pending claims in New York, but RM Media will likely be able to fix the problem going forward by tweaking the language on its page to make clear that attribution is a condition.
The complaint seems hastily prepared. The case may be more about saying FU to RM Media and Higbee than it is about winning.
Regardless, it will be interesting to see how RM Media handles being on the defense and what defenses they raise, assuming that they ever get served. While it looks like RM Media has sued several infringers in the US, they have not been sued as far a as I can see.
I hope this goes a few rounds. More to follow. I will post the pleadings online as soon as I figure out how to do that.
74
Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup
« on: June 21, 2018, 07:24:40 PM »He cannot answer because Oscar Michelin and his law firm Cuomo LLC Law Firm are only licensed to practice law in New York. See for yourself at http://cuomollc.com. Oscar Michelin has been engaging in unauthorized practice of law when he undertakes representation of people when the claim has no connection to New York. He and Chan are scam artists.
What basis do you have to think he takes claims that do not involve a party in NY? Did you look to see if any other attorneys in his law firm are admitted in other states?
All he would need is for the client or for the copyright holder to be in a state where he is admitted or, if the contract is with his law firm, any state where one of his associates is admitted. Keep in mind that a couple federal courts do not require an attorney to be a member of the state bar.
Some of the content on this site could, emphasis on could, be construed as attorney advertising. I would have lots of disclaimers on it if I were Mr. Michelin, but that is different than unauthorized practice of law.
75
Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup
« on: June 18, 2018, 05:54:23 PM »And since these federal judgments are such a sure and easy thing, anyone who owns any assets should just bend over and pay whatever anyone demands and sends via email, right?
Is this your attempt to misconstrue my comments or am I becoming defensive? Eitherway, let me reiterate, anyone who has assets, plans to have assets or cares about their credit should hire an attorney to evaluate their case. Relying exclusively on posts in any online forum, including mine, is a very bad idea.
Once a person gets competent legal advise, they they can decide what approach to take.
Oscar Michelen sounds like a good starting point.
Any idea how much he charges? In what states is he licensed to practice?
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