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Messages - A Lawyer

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1
Many of the principals/owners of those legal entities will likely abandon their legal entity. It ends up being a paper judgment against a paper legal entity. Whether it becomes anything more remains to be seen.

Ok, I'll bite. I clicked on each of the judgments listed on Higbee's website and this is what I found:

Alex Wild $15,000 judgment - Against a corporation.

Chris Sadowski $30,000 judgment - Against an individual.

Michael Grecco $45,000 judgment - Against an individual.

Michael Grecco $60,000 judgment - Against an LLC. I posted about this earlier this year but now that I look into what Higbee posted on his website, it is a lot more interesting. Higbee didn't actually post a judgment, but he posted a court order denying defendant's motion to set aside the default judgment which had already been entered. Looks like after the default judgment was entered, the defendant tried to challenge it and get it set aside. The judge really chided the defendant and its attorney:

Quote
Defendant concedes it received actual notice of the filing of the action, and the record indicates that Defendant intentionally failed to answer. Defendant offers no reason, much less good cause, why Defendant did not answer or respond to a motion for default judgment when it knew such a motion was pending. In light of the Defendant’s silence on these key issues, the record indicates that Defendant waited to see how the Court would rule on Plaintiff’s motion for default judgment before Defendant decided to appear in this action. Then, only because the Court’s judgment was not in Defendant’s favor, Defendant decided to respond to Plaintiff and appear in this action months after its answer was due. In doing so, Defendant undermined the adversarial process and has attempted to take advantage of Plaintiff.

I posted a while ago on this one, but it appears that the Defendant ponied up the money and paid off the judgment after Higbee attempted to collect.

Sadowski $50,000 judgement - Against a corporation

So of the five judgments, two are against corporations, two are against individuals, and one was against an LLC and was apparently collected after a failed attempt to get it set aside.

My point in making these posts is that I feel like a lot of the opinions on here promote a laissez-faire attitude toward getting sued or having a default judgment entered. The best course of action is always to deal with it (whether that means to fight or pay) rather than sit back and assume that you can just deal with it after the fact. You can't just "walk away" from a judgment against you individually. You would have to file bankruptcy (and nuke your credit), and liquidate most of your assets to pay your creditors (including the judgment you are attempting to avoid by filing bankruptcy in the first place).

2
If Higbee is touting winning default judgement then things might not be going well for that law firm.  Getting a default judgment takes no work on their part besides filing a complaint and letting the clock run out.  There's also a strong possibility they never could collect a dime because if the defendant never responded to the complaint, as an entity they may cease to exist.  It's a win on paper only but is worth crowing about?  However, it does scare and impress the legally ignorant.

While I generally agree that defaults are nothing to crow about, I don't think the tactic here is no just to tout "wins on paper" but rather to show people that judges are more than willing to award high amounts of damages for the types of claims Higbee and his cohorts pursue. In my jurisdiction even if you get a default judgment you are still required to "prove up" the damages that you are asking for by submitting evidence to the judge. That could explain why the various amounts of the awards Ethan Seven posted about are so different for each photographer. Just because a defendant chooses not to participate in a lawsuit does not give the judge free rein to award whatever amount they want.

Now would Higbee get that much if a case were to be litigated to judgment with a competent lawyer on the other side? Maybe, maybe not.  The point is, it's completely possible that he could achieve a substantial judgment. For most people, it's probably not worth the time and expense to find out.

Regarding collectability, I have posted a lot about that on these boards in the past. A company can go bust, but if it goes through bankruptcy the assets get divided amongst the creditors in bankruptcy court anyway. That course of action only makes sense if the company has nothing. Otherwise, you are sacrificing the company and they still get paid something anyway. If the company has assets it probably makes sense to fight or try and settle at a reduced amount to make it go away rather than sacrifice the business and go through the liquidation process of a bankruptcy. I remember a discussion on these boards a few months ago about Michael Greco collecting a default judgment against a company for $65K I think (somebody source me), so it's not like Higbee isn't making an active effort to collect on these.

If the judgments are against individuals (as opposed to companies) then there is a higher likelihood of collectability because you can't just "walk away" without doing some serious damage to your personal credit. If you have any assets they will just be liquidated to pay off creditors in bankruptcy, so it might make more sense to scrape up the money and try and settle it rather than nuking your credit for the foreseeable future. Judgments resulting from intentional torts generally cannot be discharged in bankruptcy anyway, and I am willing to bet that Higbee argues that these are "intentional" infringements when applying for the default judgment.

My point is, if you are going to fight then fight, if you are going to settle then settle. If you do get sued, then ignoring the problem and getting hit with a default judgment is usually the worst thing you can do.

3

Can a person or organization represent herself/himself/themselves in a civil court case without having a lawyer?

It depends on the jurisdiction that you are litigating in, but in general, a person can represent themselves but an organization must retain an attorney. I have been involved in cases where an organization tried to self-represent, and the court struck all of their pleadings, ordered them to retain counsel by a certain date, and entered default against them when they did not retain an attorney.

With that said, it sounds like you have not been sued yet. Are you certain that they are actually going to sue you?

4
@ A Lawyer

You don't know what you're talking about because pointing out a plaintiff's scheme to extort money from people using the inadequacies of copyright law in internet age is very relevant information.  Using the Federal courts as collection agencies in the scheme is something judges frown upon as well.

Just voicing my perspective based on my experience. You are perfectly free to disagree with my opinion. Readers can decide for themselves which advice is more pertinent to their own particular situation. Part of the reason that I started posting on these boards is because I have found a lot well-meaning, but seriously misguided advice. I wanted to offer an alternate perspective in the hopes that people who are targeted by these photographers get the best information possible so they can make the right decision for their own situation.

5
This is a very interesting case, and I am surprised it hasn't settled yet. If you look at the defendant's website it looks like it is all reposted content and a ton of photographs, which I am guessing are taken from other souces without a license like the Sadowski photograph. Technically, since their motion was merely denied, they could still prevail at trial, however, they would likely be precluded from arguing fair use to the jury. If Sadowski were to move for summary judgment and win or win at trial that would essentially destroy BackChina's business model. Then there would be a public record of a court ruling that BackChina's business model is not protected by fair use and is an actionable copyright infringement. If I am them, I would probably want to settle as quickly as possible to avoid that possibility. Outside of fair use, I am not sure they have any other defenses. As it stands, even on the denial of their fair use MSJ, they are probably going to be facing a host of new infringement suits now from potential copyright holders who do some research and find that ruling.

I think you give Sadowski too much credit.  He's a troll who has filed over 70 cases in the past three years.  No doubt he's making more money on demand letters and lawsuit settlements than he's getting licensing his photos to the NY Post.  I would've made that as part of discovery.  He's using the Federal court as his collection agency.  That's pertinent information the judge needs to know.

I highly doubt any of that would be admissible evidence. Unless one of those 70 lawsuits involves this photograph or this defendant it would be irrelevant. I am not familiar with the nature or merits of all of Sadowski's lawsuits, but if they are legitimate infringements (as it appears this one is) then he has every right to pursue the legal remedies available to him. A judge may or may not find that distasteful but will most likely disregard that information anyway. In my experience, when litigants attempt to make personal attacks against the other side that have little or nothing to do with the ultimate merits of the case, all it does is piss off the judge and reflect poorly on the party bringing it up in the first place. Judges hate personal attacks and generally view them as a waste of time. It's also seen as a pretty obvious sign that you aren't confident in your case and don't have a very strong argument on the merits.

6
That's a very interesting find! My guess is that Miller and Sadowski run in the same photography circles, which probably lead to the Higbee connection. Based on your post, it sounds like Sadowski is only doing the registration certificates for Miller. I highly doubt Sadowski is directly participating in any of the litigation efforts beyond referring Miller to Higbee. Still very interesting though. It's these types of details that make this forum a valuable resource for people.

7
Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup
« on: June 18, 2018, 11:42:43 PM »
Higbee does win a lot of those motions concerning pleadings but when I was researching his case filings in multiple states the trend I saw is he loses on his motion for summary judgment. Shortly after he loses his summary judgment probably 90% or more of cases (the ones with serial small time images, not the established photogs) settled. Once he loses summary judgment that forces his hand to leave his California desk or pay out of pocket for local counsel to attend hearings etc and I wager those settlements are more favorable to defendants than to Higbee.


Would you mind posting the names of the cases where he lost on summary judgment? I would love to see if I can get his moving papers from Lexis/pacer to see what arguments he made and why the judge denied the motion. I'll try and post them here if I can find them (and they don't cost an arm and a leg in pacer fees!).

8
Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup
« on: June 18, 2018, 12:43:31 PM »
I've tracked over 50 cases involving Higbee.  Not one has gone to trial.  Not one!  So why are we talking about judgements?
 
 That's the key folks.  Don't let a copy troll intimidate with legal threats because when you punch a bully in the nose they run away.

You can get a judgment without ever going to trial. The Higbee cases that I have seen seem to mostly seem to be someone using photos on a website, a screenshot attached to the complaint, and Higbee claiming they never purchased a license. Barring some type of fair use defense, in most cases that would probably be enough for a court to eventually grant summary judgment. So those types of cases would likely never go to trial anyway.

My guess is that Higbee is smart enough to only choose the best cases to file on, which is why they all seem to settle eventually. Going to trial is expensive, and if you are on the defense side (and paying your lawyer hourly) it probably isn't worth the expense, especially when there is a good chance of losing. That's the unfortunate reality of these cases.

9
Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup
« on: June 15, 2018, 08:20:33 PM »
Of course, judgments are a bad thing and it is certainly preferred to not get one.  I never said it wasn't a bad thing but it ain't the end of the world. When I say "uncollectible", it should be obvious, I don't mean it in a literal or legal sense. It is an attitude with some street-attitude brain power behind it.  It is my hyperbolic term to mean "very difficult and expensive to collect that is not worth it".

This idea is premised on the assumption that the judgment debtor has to somehow give permission for the judgment creditor to be able to collect. If I had a judgment against you, I could just fill out a simple form, file it with the court to get a writ of execution and then walk into your bank (or have the sheriff do it) and the bank will immediately levy your account. If I know where you work, I can fill out a form and get your wages garnished. If I know that you own property, I can just go to the county recorder's office and fill out a simple form and put a lien on your property. etc etc etc.

Believe it or not, most of this stuff is pretty easily searchable on LexisNexis or other public records databases that most lawyers usually have access to. At that point, simply being uncooperative would not be as effective as a strategy as in the pre-litigation phase. Don't get me wrong, it still takes time and effort to do all of that, but if someone is going to go through all the trouble to get a judgment (which is usually the hard time-consuming part) I doubt they will just suddenly tap out and decide its "not worth it" to collect. Especially since they can easily turn it over to a professional collections firm who will take it on contingency.

10
I agree with you.  I am routinely skeptical of copyright registration claims especially a group registration. There is no easy or inexpensive way for anyone to verify the validity of a copyright registration of an image.  The US Copyright Office online system is badly antiquated and widely criticized.

A registration certificate and the registration database online prove NOTHING.  I could make up a whole song and dance about how I registered some photo and that registration certificate covers the photo, but unless you get something directly from the copyright office I wouldn't believe anything I'm told.  How often do people tell fibs about what is covered by their group registration of photos?  Probably all the time, and the only real way to find out is in court.

You are correct that you cannot view the deposit copy (i.e. the photos that were registered under that certificate number) without paying a fee. But with that said, it would be an exceedingly dangerous game for Higbee to be sending out registration certificates for photos not registered under that certificate number. All it would take would be one person to call his bluff and then he would likely be severely reprimanded or even disbarred for fraud. My guess is that his clients have enough stuff that is legitimately registered that it would be pointless for him to take such an incredible risk by putting it in writing and sending it out by the hundreds. My point is, there are a lot of ways to legitimately mitigate or even beat these guys in the negotiation phase. Best not to waste time on something that will likely bear no fruit like challenging the registration. Or I guess you can wait to find out if it's legit when they sue you.

11
so ...what if they file a lawsuit, and what if they are awarded 48,000...if you don't have the funds they can't collect... I bet Higbee never collects a dime on his big win...it's only a win on paper, and a default judgement at that..

There is lots of good information and advice on this forum, but I have seen multiple people say something similar to this and I shudder every single time.

I would never advise someone who is sued in an individual capacity to allow a default judgment to be taken against them. Federal judgments are valid for 20 years, and they can be renewed. If you have a large judgment against you, good luck ever trying to get credit again. Most people assume that you can just declare bankruptcy and discharge all your debt, but section 523(a)(6) of the Bankruptcy Code provides that an individual debtor may not discharge a debt "for willful and malicious injury by the debtor to another entity or to the property of another entity." If you allow a default judgment to be taken for a copyright claim, 9 times out of 10 the court will find that the infringement was "willful."

As for collecting on the judgment, in most jurisdictions, they can put a lien on any assets you own (house, car, etc.) or possibly have the sheriff seize them and sell them at an auction. They can levy your bank accounts and they can garnish your wages. They can also do what is called a "judgment debtor's exam" which is basically a court-ordered deposition where they are allowed to question you about your assets. In my jurisdiction, if you fail to appear for a judgment debtor's exam, the court will issue a warrant for your arrest.

You might assume that they wouldn't go through the time and effort to do all this stuff, but there are professional debt collection agencies that do this stuff full-time for a small percentage of the recovery.

I am not saying that anyone should just automatically pay up whenever they receive a strongly worded letter or email. What I am saying though, is that if they decide to sue it's probably best to either fight or settle. Allowing a default judgment is basically giving them a free pass to argue whatever they want in front of the judge. Once they get a judgment, then the problem potentially becomes much worse.

That's just my perspective.

12
@ Joan X

It sure sounds to my like your leaning toward coughing up some cash to a copyright troll.  If it helps you sleep at night, that's fine and up to you.  But, if you go that route in light of the fact the chances of you actually getting sued is extremely small, the you become exactly what Higbee and other trolls are in business for, snatching up the "low hanging fruit."  Also consider this.  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?

Just curious, how do you think other trolls would find out about these settlements? Or, for that matter, how would they even find out that a letter is being sent by Higbee to a particular person in the first place. The letters and settlements are not public record and Higbee certainly doesn't gain anything by telling his competition. I also disagree with your "piggyback" theory. Assuming other trolls could find that information out, I doubt anyone would suddenly be inundated with letters from other lawyers. I think I read on some other thread that these guys use reverse image searches and other stuff, so you only get a letter if the photo appears on your website. I don't think any lawyer would be stupid enough to send a letter and risk their license for a few hundred bucks, just because some other lawyer sent a letter and got a settlement. What would they even say? Unless a person's website is chock full of unlicensed photos, I highly doubt any other trolls would come out of the woodwork all of the sudden.

13
Quote
First, this should remove any doubt that these cases, even involving a single image, can result in significant liability.  There is serious risk in ignoring copyright claims.   

If this doesn't sound like it was written by a lawyer for Higbbe and Assocs, I don't know what does.

HA! Nice observation. Not sure Higbee would be bold enough to post, but who knows. He probably does reads these threads though. I think Ethan Seven's point was that it is incredibly risky to avoid a lawsuit once it's been filed. As was pointed out, it was a default judgment, which certainly makes this situation a bit different than a typical letter or phone call, but still something to consider when deciding how to respond.

14
If there was something to sue for, wouldn't somebody have figured it out by now?

Think about it this way. Guys like Higbee, Getty, etc. probably send out thousands and thousands of letters and probably file hundreds of lawsuits. I know not everyone hires a lawyer, but a lot probably do, and of those who get sued, I would bet that most do. Some of those letters and lawsuits are probably going to big companies with lots of resources and who probably have full-time salaried lawyers, so it would not cost them much money to litigate. Even if a fraction of those who receive letters hire a lawyer, that's still probably hundreds of different lawyers who have dealt with these cases. So despite the fact that hundreds and hundreds of smart sophisticated lawyers have gone up against these people, some of whom represent large companies with enough cash to fight hard if they wanted to, not one has ever sued or even so much as alleged a counterclaim after being sued as far as I can tell.

One more thing to think about. Youngson and RM Media are in England right? In order to sue, the court you sue in has to have jurisdiction over the person or entity you are suing. You would run the risk of them challenging jurisdiction and getting the lawsuit immediately dismissed. That's not to say that no court has jurisdiction, but you can't just run down to the local courthouse and file a lawsuit and expect it to automatically stick. Additionally, if you sued them you would have to serve them with the complaint and summons. I have never had to serve someone in England, but I have dealt with service in other foreign countries, and it can be complicated, to say the least.

On a final note, it costs $400 to file a lawsuit in Federal court. I suppose you could always go self-represented if no lawyer wants to take your case. I would caution against it mostly because class actions are very complicated procedurally, and lots of judges hate self-represented litigants because they generally don't follow the court rules and don't know what they are doing.

I know it all seems unfair, but the law allows it to be that way. Even if you were to fight and win, as we have seen on these boards, some new player will inevitably enter the fray and take their place. In my opinion, you would be better served writing your congressman about changing the law than you would by filing an expensive time-consuming lawsuit that you have little chance of winning.

15
Thanks for all the replies.

Is it not a little strange that someone has gone to the effort of registering the copyright on this image when that image is over 20 years old?

What's the point of making that registration in the context of this alleged infringement that clearly pre-dates that registration?

That's the part I don't understand.  Isn't it a big waste of money and resources to do the registration filing?

There are a few of reasons. First, they can still get statutory damages so long as the registration pre-dates the infringement. So even if the photo was taken in 1990 and wasn't registered until 2017, if the infringement began after the date of registration (let's say 2018) then they could claim statutory damages. So even if they are limited on what they could claim for the pre-registration infringements, it would be worth it for them to shell out $70 to register to be able to claim more damages for future infringements by other people. Surely, they are going after other people. Second, you generally cannot bring a lawsuit for copyright infringement without a registration, so by registering they are making it easier for them to sue if that's what they want to do. Third, most smart people would demand proof of ownership after being contacted by these people and a registration certificate provides a convenient way for them to show that.

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