A Victory For The Guys That Higbee Targets??

[screwedbyhigbee]

I came across this lawsuit, which went against pretty much everything Higbee continually claims. The ruling was against the use of an image being copyright infringement, and the reasons were VERY interesting for a lot of reasons. Most surprising to me was that damage was evaluated to be non-existent, and the court seemed to take into account intent of use vs. a blanket "you used it, you stole it" philosophy that Higbee's extortion letters indicate. They ruled that the photos' use was "fair use".

Anyway, here's the link to the article which also contains the decision. If Matthew or any others that are in the mix would like to offer thoughts, I'd love to see what you are all thinking.

https://petapixel.com/2018/07/02/court-rules-copying-photos-found-on-internet-is-fair-use/

[Robert Krausankas (BuddhaPi)]

Fair Use needs to meet the 4 criteria, I suspect this case will be appealed, certainly would be a plus if the ruling stood, but i'm not overly optimistic.

[UnfairlyTargeted]

AWESOME news!  Let the trolls suck it down and lose all control over their worthless garbage images.

[Ethan Seven]

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. 

[icepick]

According to this https://www.loeb.com/publications-ipentertainmentcaselawupdates-20180611-brammervviolenthuesproduction they won on summary judgment so appealing, then remand, then trial on this just got a lot more expensive for the photographer and I wonder if he thinks his demands were worth it after having this blow up in his face.

Looking forward to seeing if the attorney gets his client to pony up the money for appeal and trial or leave this really adverse decision against him on the books.

[UnfairlyTargeted]

I just can't get over how awesome it is this blew up in his face and I hope the little twit is bankrupted by this so the decision stands and starts to set precedent across the US courts.

[Ethan Seven]

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. 

[Matthew Chan]

I don't this "win" will hold up very long. It will likely be appealed. Absent that, it will be an outlier case which few people will credibly rely on.

This judge's ruling and rationale shocked me to say the least.

I came across this lawsuit, which went against pretty much everything Higbee continually claims. The ruling was against the use of an image being copyright infringement, and the reasons were VERY interesting for a lot of reasons. Most surprising to me was that damage was evaluated to be non-existent, and the court seemed to take into account intent of use vs. a blanket "you used it, you stole it" philosophy that Higbee's extortion letters indicate. They ruled that the photos' use was "fair use".

Anyway, here's the link to the article which also contains the decision. If Matthew or any others that are in the mix would like to offer thoughts, I'd love to see what you are all thinking.

https://petapixel.com/2018/07/02/court-rules-copying-photos-found-on-internet-is-fair-use/

[Matthew Chan]

This is a big example of what I am talking about.  Even "sure things" are never quite "sure things".  Sure.... the law is so clear.... NOT.  A supposedly smart judge apparently didn't think it was so clear and ruled against the plaintiff.

The plaintiff wanted to push the issue and "go all the way" got their asses handed to them. They now have to decide if they want to go through the hassle of getting it corrected through an appellate court.

My thinking is even if the plaintiffs prevail through appellate court, this was a big waste of time, money, and energy.

For the short term, defendants and victims can quote this lone outlier case to make a fair use argument.

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.

[Matthew Chan]

Well, the photographer apparently believed that it was a "sure thing" he would win or he wouldn't have pursued this.  The best he can hope for is to get an appeal to get rid of this strange outlier ruling.

After the appeal, will he then go file suit again against the defendants?  I think this whole scenario will give pause to most photographers that filing lawsuits can sometimes backfire in a vicious way.

And what about the lawyer who lost this case? It doesn't paint him in a good light either.

According to this https://www.loeb.com/publications-ipentertainmentcaselawupdates-20180611-brammervviolenthuesproduction they won on summary judgment so appealing, then remand, then trial on this just got a lot more expensive for the photographer and I wonder if he thinks his demands were worth it after having this blow up in his face.

Looking forward to seeing if the attorney gets his client to pony up the money for appeal and trial or leave this really adverse decision against him on the books.

[kingkendall]

This is a huge decision that covers 99% of demand letters sent to people caught up in the copyright troll scam.  And the section of the decision that speaks about "effects on the market" for the use of an image is noteworthy because lawyers like Higbee and others say usage of an image takes away income from a photographer. 

[UnfairlyTargeted]

Everyone is a "photographer" now and thinks that they too can make it rich by selling their precious photos.  About time these trolling pieces of human excrement are put in their place and told by a judge with some common sense that their precious work isn't worth what their overinflated egos tell them their work is worth.

[Matthew Chan]

The majority of images people use on their websites are "low-value" or "very low-value". The fact that digital cameras are available to nearly anyone guarantees a glut of images available.

There is little possibility of making a meaningful amount of money through legitimate sales, hence, copyright trolling is the way to monetize. They are always looking for the next person who made a mistake in using an image.

Everyone is a "photographer" now and thinks that they too can make it rich by selling their precious photos.

[UnfairlyTargeted]

EXACTLY.  Anyone who wishes to contact me with anything more than a takedown request will be told in no uncertain terms to FECK OFF.

Images are NOT worth anything and the whining crybabies (this goes out especially to you Mr POS Tom Schwabel) need to grow up and find and a legitimate job to do instead of funding all of your luxurious vacations on the backs of honest hardworking people.

[Robert Krausankas (BuddhaPi)]

can i fix your typo?!!