Higbee continues to make demands!

[aurorabeauty]

Here we are 5 months later and Higbee sent his 15-day letter along with a mock complaint. Sent it regular mail.

This is a continuation from my original thread which was posted in the Getty Forum before there was a Higbee forum - https://www.extortionletterinfo.com/forum/getty-images-letter-forum/imageprotect-demands-$1500-for-photo-of-deviled-eggs-from-stockfood/

Plaintiff is listed as Stockfood America. Unless Stockfood America obtained copyright of the image I don't see how they can be the plaintiff since they didn't take the photo.

I've searched and the photo has been published online as early as 2009. Recall that I used the photo because I saw it on a food blog (w/o any attribution to anyone) and asked that blogger there if I could use it. They said yes.

Timeline:

• Published post with photo in October 2012
• Stockfood claims to have obtained registered copyright for "Group Registration for automated database" in June 2013
• Search of copyright.gov does not show registration in name of photographer
• Rec'd demand from Image Protect in Dec. 2017, LLC owner (not me) replied which is why I'm sure we're dealing with this now
• Took down photo immediately upon receipt of demand letter
• Website has private registration but they found LLC owner's personal address (thanks, Google!)
• Website is owned by an LLC
• Complaint names individual personally with d/b/a website name

After reading through the entire Higbee forum here the past few months, I still believe Higbee/Stockfood has no leg to stand on and their initial demand of $AB00 and the "you can settle and avoid litigation" $C000 are both outrageous. When the owner of the LLC contacted ImageProtect she offered to settle for $XXX but ImageProtect never replied.

I know that there are a few on here that also got the 15-day letter but haven't heard anything and it's more than 15 days. However, this is nerve-wracking!

I don't believe Stockfood America has standing. If they do, it seems like this is somewhat of a Righthaven situation - assignment of copyright just to sue - except that Stockfood America is actual a real stock photo company. But even if Stockfood America does own the copyright, they still don't have a registration and requests for the registration only returned the "Group Registration for automated database". Is that even a registration of the underlying photos?

Any suggestions? Is ignoring this still the way to go?

[icepick]

I haven't dealt with your plaintiff but so far ignoring it has worked better than trying to have a substantive discussion with Higbee's goons. As I've said before, I think everything up to that 15 day threat and draft complaint is part of a standard script he has implemented. What happens after that is probably based on the specific facts of each case where they make a judgment call on if it is worth pursuing.

[Ethan Seven]

The copy of the complaint is usually the last step in the pre-litigation process.  If you ignore it, my guess is that the law firm will either file suit or stop pursuing the claim.  If they do file a law suit, it will inevitably look at least slightly different than the “mock” complaint. 

Sending the pre-litigation copy of the law suit is is a tactic that is used in many different practice areas.   It is designed to do a few things. 

1.  It shows the judge that they took every step possible to try to get you to settle the claim before “forcing them” to file the law suit.  This is an important tactical step that they will use to paint you in a bad light and to use to bolster their chances that the judge will order you to their attorneys fees.
2.  It is designed to warn/scare you about what might happen in hopes that you decide to settle prior to them having to file the case.
3.  Depending on the quality of the letter, it should help you better understand the nature of the claims and facts that support it, again with the hopes that it will help you see the merits of settling the matter prior to litigation. 

It sounds like you made an offer to settle.   If it was verbal, resend it via email so that you have documentation that you made a good faith effort to resolve the matter.   It will annoy the judge if you made an offer and they did not respond or counter prior to commencing litigation. 

StockFood America is vastly different that RightsHaven.  RightsHaven was created solely for the purposes of suing people for copyright infringement.  RightsHaven did not create, sell or even own a valid interest in any copyrighted material.      StockFood America on the other hand, looks like a well established licensor of copyrighted images.  There is also a good chance that they own copyrighted material that they purchased or created themselves. 

The title of the registration certificate does not matter.  What matters is what images are listed or referenced on the certificate or what images were made in the deposit that accompanied the registration.  My guess is that StockFood America does a large volume of regristartions and that it is a database export of a large number of photos.   You could request a deposit copy from the US Copyright Office. 

As far as where to go from here, it is a business decision with no perfect, one-size fits all answer.   

[aurorabeauty]

Thanks for your insight, icepick. This is definitely frustrating.

Ethan Seven -

It sounds like you made an offer to settle.   If it was verbal, resend it via email so that you have documentation that you made a good faith effort to resolve the matter.   It will annoy the judge if you made an offer and they did not respond or counter prior to commencing litigation.     

We never got to the point of offering to settle. I was asking questions of ImageProtect and then one day got a response that the matter was turned over to an attorney. Wasn't going to offer anything until they proved they had the right to settle.

Every communication lists the photographer but the settlement demand was on behalf of StockFoods. I was asking for proof of exclusive agency and proof of copyright. The first time they wrote back that they don't have to provide any information until it goes to court. So there was a second request for the information. They provided a copyright registration certificate dated June 2013. The post went up in October 2012.

Once we knew there was no valid registration at the time of posting we were discussing a settlement offer but then got the email they turned the case over.

So, I guess it's a matter of actually talking to someone at Higbee and making a reasonable offer or waiting it out.

Thanks for your insight!

[Joan X]

I started getting emails and letters from Higbee & Associates about 6 weeks ago.  I have been ignoring them.  I did immediately take the picture down. 

I just received a copy of the sample law suit and it has me a little freaked out.  I have seen that they do file a lot of law suits. 

I have gotten somewhat comfortable ignoring them and would not mind doing it some more.   My question is this, will the give me one more chance to settle this before they file the law suit an actual law suit, assuming that is what they will do next???

If they do file it, what will it cost me to fight it.  They are asking for around $2,000.  Will that go up a lot if they file the law suit???

[Ethan Seven]

The sample complaint is usually the last pre-litigation attempt to resolve a claim, but that does not necessarily mean they will not call or email you one more time before giving up or filing the lawsuit.  It probably is impossible to know.

They will probably not file the lawsuit if they think you do not have money to pay.  Conversely, if they do file, they will because they believe that you have money or assets.  Therefore, they will certainly be asking for much than $2,000.  My guess is they would at least triple the original demand amount.  But again, it is impossible to know for sure.

If they do file the lawsuit, you will need to hire an attorney to file an answer or settle prior to answering.  My guess is that hiring an attorney to file an answer will cost you at least $2,500.  There is the possibility that a good attorney may spot a defense you have not raised, which might get them to dismiss the case or dramatically reduce their demand.

You also have the option to try to settle it yourself after they file.  This is risky as many defendants throw gas on the fire by making admissions that make things easier for the plaintiff.  If you attempt to negotiate, familiarize yourself with Rule 408.

You can also not fight it and accept a default judgment, and make them collect.  This is very risky if you have assets.

I hope this helps.

[kingkendall]

@Joan X

Stop fretting about what hasn't happened and continue what you're doing.  Don't fall into the "what if" trap because that's exactly how they want you to feel, like a scared rabbit.  DO NOT CONTACT Higbee!  The moment you do that you get put on their "We got'em!" list and the harassment gets worse.  And let's clear up this point.  By not responding doesn't really mean you're ignoring them.  I suggest putting all emails and letters in a folder.  Keep everything.  After doing that move on with your real life and don't give them a second thought.  The chances of getting a suit filed against you I would say are in the single digits.  You're concern is to not fall into the "scared zone".  Read and learn the forum.  Knowledge is power. 

[Joan X]

@kingkendall

Thank you for the advice!   I went back and pulled all of the emails out of my deleted folder and saved them.   I am hoping you are right about the odds of getting sued.  I am having a hard time not thinking about what if after I just read that a judge awarded Higbee $48,000.  I posted about it here

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

[Robert Krausankas (BuddhaPi)]

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..

[A Lawyer]

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.

[Ethan Seven]

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.

[kingkendall]

What I am saying though, is that if they decide to sue it's probably best to either fight or settle.

I totally agree with this statement.  The key word is "if".  Until an actual complaint is filed is when action needs to be taken.  Answer the complaint, counter sue if you can.  I've never suggested not doing these things if a suit comes.  But, to quickly settle just in case they sue.  Hell No!  For what? 

[Matthew Chan]

My comments inline...

I just received a copy of the sample law suit and it has me a little freaked out.  I have seen that they do file a lot of law suits. 

Filing lawsuits for other clients is not a direct indication they will do the same for another client. The client has to be will to incur the cost (most times) and the public and legal exposure for filing. The path is not a walk in the park and not an automatic process. Some clients are more litigious than others.  Other clients don't want the negative publicity or be in court records. You have to research the potential plaintiff, not just the lawyer.

I have gotten somewhat comfortable ignoring them and would not mind doing it some more.   My question is this, will the give me one more chance to settle this before they file the law suit an actual law suit, assuming that is what they will do next???

You will always have a chance to settle the case even after the lawsuit is filed simply because it is pragmatic. If a defendant is willing to cough up the settlement money, the lawsuit will go away very quickly. However, beware that settlement amounts tend to go up the further along the process goes.

If they do file it, what will it cost me to fight it.  They are asking for around $2,000.  Will that go up a lot if they file the law suit???

Everyone pays one way or another. If you represent yourself, it costs time, work, and energy in self-representation.  If you feel that you will end up settling this, your best bet is to simply hire Oscar Michelen and enroll in his legal representation program.  Much less expensive to take that tact. Everything gets more expensive IF you try to hire a lawyer to defend a lawsuit.

[Matthew Chan]

I haven't looked into the specifics of what you are claiming as a $48K judgment. I think there has to be some extenuating circumstances to reach that number. Photographers don't just get 5-figure judgments because someone post a low-resolution image on a blog that is seen by 30 people. It doesn't work that way.

For example, People get killed everyday driving on the streets but that doesn't stop most of us from comfortably getting into the car to drive somewhere. That is because the extreme of people getting killed from driving typically has more detail to the story.

You need to do a lot more reading.  Higbee and crew are very happy you feel the way you do. They are also happy you posted that title on our forum because that is what people will focus on, not the details that matters.

I am hoping you are right about the odds of getting sued.  I am having a hard time not thinking about what if after I just read that a judge awarded Higbee $48,000.  I posted about it here

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