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Higbee Associates Letter & Lawsuits Forum / Photo not registered with Copyright division

« on: January 23, 2019, 03:20:25 PM »

Higbee responded to my request for additional information by providing an email that states the allegedly infringed photo has not been registered with the US Copyright Office. I reached out to a lawyer who provided the following information -

If the copyright owner is a foreign national then it does not need to register its copyright before filing an infringement lawsuit against you.

Registration of the copyright before your infringement was required, however, for the copyright owner (U.S. or foreign) to qualify for statutory damages or an award of its attorneys' fees to enforce the copyright. So ... your own attorney needs to determine whether the copyright was registered before you displayed it on your website. If so, the copyright owner has significant leverage against you. If not, it doesn't because it would not only have to prove its "actual damages" it would also have to pay all of its attorney fees to prosecute the case against you (though you would have to pay yours as well).

I have confirmed this elsewhere, though I would appreciate professionals chiming in on this point. What I get from this is that any settlement would fall under Davis v. Gap, Inc., 246 F.3d 152 (2d Cir. N.Y. 2001)-

“[C]ourts have construed “actual damages” by examining the fair market value of a license fee that the copyright owner would have obtained for the infringer’s use of the copyrighted material” . . . . “The question is not what the owner would have charged, but rather what is the fair market value.”

I used the URL Higbee provided and found the alleged photo would cost less than $200 to purchase through Getty. Higbee used the same tool to provide produce an estimated license fee of around 10 times that. They chose the large photo format and all digital media option to inflate the price rather than the small photo and commercial blog use they are alleging.

They did, however, drop their demand amount by about $50.

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Higbee Associates Letter & Lawsuits Forum / Re: Who really owns the claimed image?

« on: December 27, 2018, 07:04:07 PM »

Short answer is that I reached out to Getty to clarify who owns the rights here in the U.S. for a photo a demand letter is requesting. I used an email that has this screen name in it. I didn't want Getty to forward any info along. That and I'd be fairly certain Higbee monitors this site.

That being said, if Getty has exclusive U.S. rights to manage an AFP license, can AFP go outside of their partnership agreement for collections? The Getty EULA states that "You may not assert any right to revenue from a collecting society in respect of photocopying, digital copying or other secondary uses of the licensed content". I would assume Getty would want to have their hand in the pot for any image it licenses based on this language. Getty's email response to me inferred that they were in control of the image rights.

Of course, I'm also curious as to how AFP would verify if their partner licensed an image. Can PicRights/Higbee even access Getty records? Based on my experience with large corporations acquiring ones I've worked for, I'd be surprised to see Getty and AFP so transparent with each other. I'll keep reviewing the site here and let you know how things turn up.

Acoording to Wikipedia, AFP is the third largest news agency in the world.  My guess is that Getty is well aware of what they are doing and that there is coordination between them with regards to checking for or verifying license history.   Though, I am not sure why it is relevant to anyone who does not have a license.   You previously said you do not have money or assets.   AFP and Higbee won’t sue you if you convince them you are not worth suing.

I would assume that it would be relevant to a class of people if Higbee was simply sending out demand letters without proof. Getty may be aware, but that would imply there is some sort of agreement between AFP and Getty for collections. Here's the problem with that though... Getty got out of doing stuff like this after it got a lot of bad press. Why then would they open themselves back up to this? Also, if Getty is responsible for licensing, why would they sidestep the collections process?

Higbee provides far more information than it realizes about their business model. The company has structured itself in a way that does the bare minumum of work in order to generate revenue. I would hazard a guess that he company is relying on Picrights to verify claims so that it can be held harmless if it came out that they were not verifying ownership prior to making a demand.

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Higbee Associates Letter & Lawsuits Forum / Re: Who really owns the claimed image?

« on: December 26, 2018, 09:08:06 PM »

Sorry Matthew tried to send a PM to explain but I couldn't.

Short answer is that I reached out to Getty to clarify who owns the rights here in the U.S. for a photo a demand letter is requesting. I used an email that has this screen name in it. I didn't want Getty to forward any info along. That and I'd be fairly certain Higbee monitors this site.

That being said, if Getty has exclusive U.S. rights to manage an AFP license, can AFP go outside of their partnership agreement for collections? The Getty EULA states that "You may not assert any right to revenue from a collecting society in respect of photocopying, digital copying or other secondary uses of the licensed content". I would assume Getty would want to have their hand in the pot for any image it licenses based on this language. Getty's email response to me inferred that they were in control of the image rights.

Of course, I'm also curious as to how AFP would verify if their partner licensed an image. Can PicRights/Higbee even access Getty records? Based on my experience with large corporations acquiring ones I've worked for, I'd be surprised to see Getty and AFP so transparent with each other. I'll keep reviewing the site here and let you know how things turn up.

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Higbee Associates Letter & Lawsuits Forum / Who really owns the claimed image?

« on: December 17, 2018, 07:25:22 PM »

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