Messages

76

Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup

« on: June 18, 2018, 01:39:45 PM »

It's THEIR problem to figure out where my assets are.  And good luck with that.  Life goes on, no problem.

What awards have you seen?  Do tell.

I do not know if Higbee is doing his own collections or outsourcing them, but someone is.  Federal judgments are valuable.   Plus, logic would suggest that they are only filing lawsuits against people who they believe have assets.  (Which goes back to my suggestion that those who do not have assets or won’t have collectible assets shouldn’t worry too much about this stuff).

Federal judgments last a minimum of 20 years and accrue interest, usually at around 10%.   20 years is a longtime to try to lay low and hide assets. 

77

Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup

« on: June 18, 2018, 01:27:43 PM »

In hopes of preventing people from being misled and at risk of getting accused of spreading doom and gloom again, I need to point out that KingKendall’s welling meaning advice appears to be based on a complete lack of understanding of copyright litigation.   

Copyright litigation is pretty unique.   Cases not going all the way to trial is more likely a sign that attorneys, like Higbee & Associates and Liebowitz Law Firm, who file hundreds of cases a year, are winning big.  By winning, I meaning getting settlements that make their clients happy and wanting to file more cases.

Less than 1 percent of copyright lawsuits go to trial because defendants settle fast or plaintiffs win on a summary judgment or default judgment.   

I don’t have the time or inclination to go through hundreds of the lawsuits that Higbee & Associates files, but I have read the docket on about 25 of their cases and read the pleadings on about 10. 

Higbee & Associates is consistently winning its motions.  I saw wins on motions to strike defenses and in opposition of motions to dismiss for various causes.  I saw them lose a motion for lack of personal jurisdiction over one party on a multi-party litigation.   

Higbee and Liebowitz are also going deep on some cases.  Some of their cases have been going on for more than a year.  This shows that they have the resources and incentives to fight.  I read an article that said Higbee is getting a whopping 50% of the recovery.

It is impossible for non-parities to know what the outcome is on cases that settle, which is what happens on 99% of copyright cases, but fact that the law firms keeping filing more cases and that they are consistently winning their motions is a good indication that they are consistently getting outcomes their clients like.

@KingKendall, are you seeing something I am not?  Can you point to a case where Higbee lost on a motion to dismiss, was sanctioned for frivolous filing or anything else to suggest they are not consistently winning/getting good outcomes for their clients?

78

Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup

« on: June 15, 2018, 06:35:04 PM »

Whatever failures those businesses had does not change the fact that 99% of the time judgments are quite easy to collect on when a person has assets.    Federal judgments last for 20 years and can be easily extended.  Those are facts.   

I am not helping anyone’s cause but people who are looking for help.  If a person has assets worth protecting, they need to speak to a lawyer who handles copyright law.   That lawyer can properly advise them on whether they should fight, settle or lay low.    That is not caving or giving in, that is getting educated and in position to make the best possible decision. 

79

Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup

« on: June 15, 2018, 03:22:50 PM »

Just to be clear.  Being uncollectible is not something someone with assets just decides to do once they get a judgment. If you have assets, judgments are usually a very bad thing, especially ones from a federal court.   Being unwilling to pay or deciding to be “uncollectible” is not an option for 99% of the people who have one of the following things (to name just a few):

1. House with equity
2. Business with assets
3. Bank accounts with money in them
4. Receive a W-2 paycheck
5. A vehicle that is owned or worth more than is owed
6. Web sites with valuable domain names or traffic

A judgment can also screw a person’s credit for a longtime.  Some credit lines and loans can become payable if a person gets a judgment against them.

“A Lawyer” has previously posted some good information about judgments at

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

And  https://www.extortionletterinfo.com/forum/higbee-letter-lawsuits-forum/higbee-continues-to-make-demands!/

My advise, unless you have previously engaged in some very significant and often costly assets protection strategies, don’t get a judgment against you or your business.   

If you have assets worth preservering, hire a lawyer who handles copyright claims (preferably one with history of photo cases).   You may not need longterm representation, but you need a professional to review your case.

80

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

« on: June 08, 2018, 02:45:58 PM »

I would like to think this forum could impact large scale change.  I am sure it can help on an individual basis.  However, are you sure you are not confusing cause with corollation or coincidence?

Attorney Timothy McCormack has no public record of discipline from the Washington State Bar, neither does Higbee (admittedly,  I only checked CA Andy he is admitted in about 10 states).

Usually state bar associations let the complaintant know the outcome of the complaint.    My guess is that if the complaintants were getting good results, they would be posting on this forum. Do you have any evidence or feedback that shows any adverse action was taken on a complaint to a state bar?

If a state bar reviews a complaint and finds no violation of the rules, my guess is that all similar letters received in the future go nowhere; the attorney probably does not even get made aware of them. 

I know nothing about what drive Getty’s business decisions.

81

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

« on: June 08, 2018, 02:07:51 PM »

 

In my view, it is applicable to situations where there is no copyright registration.  It is a fact that many infringements do not result in money demands because of the "de minimus" argument. "It ain't worth it".



And this whole notion that because someone has assets needs to bend over and take it up the rear is something I don't accept. It is a factor for consideration, not a determining factor. People who have assets can definitely fight back too. If you don't believe it, you are not looking hard enough. You and I will have to agree to disagree.

I agree that arguing de minus is always appropriate as to limit damages.  Readers just need to know that it is not a defense to copyright infringement.

I am not sure if you are trying to infer that I said those with assets should not fight, but that is clearly NOT my position.  I think those with assets should produce a license or assert a valid defense if they have one. If they have neither, they should hire an attorney who can explain the risks and help them fight.

82

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

« on: June 08, 2018, 01:47:44 PM »

You could be right IcePick, but my guess is that the change in language is a psychological ploy.  The language projects confidence and infers a seriousness to the matter.   If they send a lot of letters, my guess is that they test the language and that the language of letters reflect the test results.  Do they use the exact same language for different clients?  It is also possible that the client exercises some control.

Also, I am not aware of any state having a rule of professional conduct that requires a prelitigation letter to state the obvious fact that a person may wish to hire an attorney.   Do you know of any that do?    My guess might be colored by the fact that I also am very skeptical about complaints to regulatory agencies having any impact on situations like this, other than making the attorney focus more on the claim. 

83

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

« on: June 08, 2018, 12:35:10 AM »

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.

I am a bit confused.  Are you saying there is a de minimum defense to copyright infringement?  I have heard of the extent of the infringement being used to calculate damages, but never as a defense to liability.

Some of your listed strategies would make me cringe too if the risks associated with them are not properly explained to someone considering them.  I am not sure what they all mean, but they are all 100 percent fine for someone who has nothing to lose, but to someone who has assets, a few of those tactics come with serious risk of making things worse by either inviting litigation and or increasing the chance a judge would award attorneys fees to the copyright holder and increase the award of damages.   

Sure, consider being creative or unconventional.  Options are good.  Just make sure you know that it if you have assets, it is possible to make things worse... heck, even much worse.   

84

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

« on: June 02, 2018, 05:21:09 PM »

Zeke is correct.  From what I can see, a person can obtain a license for a price or free of charge if they provide a link to one of RM Media’s websites.  I am not an expert on SEO, but I believe links can have considerable promotional value. A person who takes the image and fails to do one of those two options creates a cause of action under 17 US 504. 

There simply is no merit to the idea that a winning class action lawsuit can be created by a class of people who violated a license and then voluntarily settled the claim. 

As far as jurisdiction, if the claim is brought under 17 US 504, a federal court would have subject matter jurisdiction, regardless of where the copyright owner resides.  RM Media has been filing its lawsuits in the state where the defendant resides.

I don’t think there is any harm in writing those letters.  Do it if it is therapeutic, but I don’t think the state bar associations or attorney generals will care about someone making copyright claims that you believe are spurious, especially when you can solve the problem by ignoring them or seeking a judicial remedy if sued.

How is Image Rights associated with this?  I read their website, http:// www.ImageRights.com and do not see a connection.  Are they affiliated with RM Media LTD or Higbee? 

85

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

« on: May 30, 2018, 02:11:03 PM »

A nondischargeable $48,000 federal judgment is definitely worth something.  The judgment is also accruing interest at 7 percent.  Unless the debtor is financially broke and on their deathbed, I imagine that there would be plenty of debt buyers who would buy it from Higbee or Grecco.

86

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

« on: May 30, 2018, 01:16:01 PM »

If you do settle without getting a summons and complaint filed against you in a federal court, you don't think other copyright trolls won't notice and send other demand letters your way?

You raise an interesting factor that I have not previously considered in the calculation; that is, the longterm impact or “what impact will this have on future copyright claims?”

However, I would weigh the factor differently.   If someone resolves the claim prior to a lawsuit, which is a public document, being filed with the court, there is very little chance that any other copyright troll would find out about the claim.  Conversely, if the lawsuit is filed, the lawsuit is available for anyone to see online, this seems much more likely to draw more copyright demand letters.  If I represented plaintiffs, I might be inclined to build a list of people/businesses who were sued for copyright infringement and have my clients search those websites. 

Also, in general, a person/business becomes a more attractive target for copyright lawsuits after they have been sued once.  It makes it much more difficult for a defendant to claim that they were unaware of copyright law or the duty to make sure pictures are properly licensed after that person has been sued for copyright infringement.   Plus, a judge is more likely to punish a defendant that the judge believes is a repeat offender. 

I think this factor weighs in favor of resolving the claim in the pre-litigation stage.  The weight of the factor would probably increase if the alleged infringer has a lot of web content and uncertainty about the licensing history of some of the images on the website.   This should be a non-factor if the person/business is absolutely sure there are no other infringements on their website.

I am curious as to how you think other copyright trolls would become aware of a claim that is resolved in the pre-litigation stage, especially considering how these claims probably all involvem confidentiality as part of the settlement.  I suppose theoretically that the lawyers could be sharing information with each other, but this seems very unlikely as it would pose several serious risks and could seriously harm their clients by violating their settlement agreements.   Am I missing something?

87

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

« on: May 29, 2018, 05:32:54 PM »

I read the complaint and it was pretty vanilla, insofar as nothing jumped out as to why the judge awarded $48,000 for the use of one image, other than the copyright holder and plaintiff was an established photographer and Higbee claimed the use constituted willful infringement for commercial benefit.

The picture was a photo of Cher.  It was used for editorial purposes on the web site www.fashionilluminati.com

From Higbee & Associate’s 8 page complaint, which was electronically signed by Mathew Higbee:

“10. ... Michael Grecco is an award-winning commercial photographer and film director noted for his iconic celebrity portraits, innovative magazine covers, editorial images and advertising spreads...”

“19. Plaintiff is informed and believes that Defendant used Plaintiff’s copyrighted image without permission... for commercial benefit...”

“20. On information and belief, Defendant’s use of the image was deliberate and willful.”

A couple more things stood out:

1. They named the business and the business owner personally.
2. They filed it in Nevada and not in California or New York, where the plaintiff has studios.  Nevada and California are both 9th Circuit courts, so there might not be too much to this; especially since according to Higbee’s twitter and web site, they have offices in both states.

I will go through the motion for default judgment when I get a chance. 

88

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

« on: May 29, 2018, 03:44:21 PM »

Sometimes the obvious needs to be stated.  That is what three decades of being in the legal practice will do to you.   I do have free time on my hands if Higbee is hiring in south Florida.   Though, I may be a little too defendant friendly and old for their crew.   

https://www.higbeeassociates.com/about/attorneys/

89

Getty Images Letter Forum / Re: Pixsy demand email

« on: May 29, 2018, 02:55:49 PM »

I am not sure what you mean by make them accountable for their actions.   The actions you describe sound like incompetency which manifests itself in the inability to draft or present licenses.   However, their duty to do that is owed to their clients, not you.   If they were intentionallly misrepresenting facts to you in effort to extract money from you, there may be a cause of action under state law.   Seeing that you were smart enough not to pay them, my guess is that your chances of recovering damages are reduced. 

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

« on: May 29, 2018, 02:48:30 PM »

I downloaded the complaint that Higbee & Associates filed in the case that resulted in $48,000 judgment.  It was Michael Grecco v. Monica Dodge d/b/a Fashion Illuminati.  I will write about it later today after I read it.

To your question about the definitions you mentioned that speak to the intent of someone accused of violating copyright law:    There are three levels of intent and each come with a very wide range of damages and different burdens of proof.  The federal law that governs it sets it forth at 17 U.S. 504

The typical infringement is usually referred to as unintentional.  The statutory damages on these claims range from $750 to $35,000.

Section 504(c)(2) describes willful Infringement.  The courts typically define it as “the defendant knew or should have known it infringed Plaintiff’s copyrights.  Willful copyright infringement does not require a showing of actual knowledge.  To prove willfulness, the plaintiffs may show that the infringer had actual or constructive knowledge that it was infringing the plaintiff’s copyright or that the infringer acted in reckless disregard of the ugh probability that it was infringing plaintiff’s copyrights.”  Arclightz and Films Pvt. Ltd. v. Video Palace Inc., 303 F. Sup. 2d 356, 361-62. 

This site has some good information about the different types of infringement, including innocent infringement, the burdens and available damages:

http://vondranlegal.com/what-is-the-legal-definition-of-willful-copyright-infringement/