We deal with many serial litigants. One of those is Higbee and Associates. They issue hundreds, if not thousands, of letters a year. They demand thousands of dollars for - typically - innocent and mistaken use of a photograph on a website. If you received a letter from Higbee & Associates, you are probably wondering “What is going on?,” “Am I being shaken down?,” or “Should I just ignore this?” Briefly, you are being accused of copyright infringement by Higbee & Associates, you should never ignore such a letter. Do not worry, please read on and lets chat to see what the best plan for you is.
What are copyrights and did I infringe?
The moment a photographer takes a picture and that image is saved on film or a card, the photographer has a copyright in the original and creative elements of that photograph. So, if you simply snatched a picture from Google to put on your website or social media page, you may have infringed that copyright by copying and publicly displaying the photograph. But that is not the whole story.
Who is Higbee & Associates?
Higbee & Associates does not take pictures. They represent photographers. And they send out demands. A LOT of demands. Rather than trying to take pictures down cheaply, Higbee & Associates sends demand letters to extract settlements.
Are they legit? Well, Higbee & Associates does appear to represent photographers. But, their business model—send a ton of demands and collect money—is somewhat suspect. Their letters are pretty thin. Is there a registration (which is necessary to file a suit)? What is the registration number? Who took the photograph? Who owns the copyright and is there an adequate chain of ownership of the right? Without all of this information—their unwarranted demands are suspect.
Now, you cannot ignore their letters. If you did infringe and the photographer had a registration in place, the minimum a court can award the photographer is $750. Yes, it can go up to $150,000, but that is unlikely. And if the photographer wins, you might have to pay her attorneys’ fees.
Thanks for scaring me, but what do I do?
Well, every case is different. That is why it is imperative you speak with an attorney rather than wing it or go with something you saw or heard someone else did. You may have defenses. And if you don’t, you can still negotiate better terms.
Some defenses to Higbee & Associates’ claims:
You run a website where users can post images and you did not post it. You may have a DMCA Safe Harbor defense.
The photo is not registered with the Copyright Office.
Higbee & Associates, in their rush to send out as many demands as possible, cannot prove they represent the owner of the copyright.
You paid for the photograph.
Your use of the image was covered by fair use. Note: everyone thinks they are engaging in fair use, but fair use is a legal defense based on four factors and most applicable to commentary, parody, and other transformative uses. Shouting that its fair use without developing an argument is not going to get you far.
So I don’t have a defense. Now what?
Do not fret. Their demand is likely absurdly high. And, even if you chose to litigate the matter, you can work with counsel to develop a strategy to keep damages low.
In the end, every case is different. But, if you fill out this form below, we can have a half-hour case evaluation and triage. Typically at the end of the call, my clients know what path they want to take forward. The reduced fee cost for this consultation is $250. This must be paid, by credit card, prior to the consultation. Phillips & Bathke, P.C. will issue an invoice for the consultation after scheduling the same with you.