Higbee Emails for supposed Stockfood America Image

[Karma]

Hi all - as a newbie, I want to thank Matthew and all for this forum. I recently received emails from the Higbee operation that are exactly like the ones that everyone else received, in the same order. I was wigged out enough at first to find this site, but now I feel totally comfortable ignoring them. I'll set up a folder to store them in as suggested, and continue on with life. Here are the sordid details:

Background: I have a tiny food business, which ceased operations in February.  I am dissolving that LLC - needless to say, all the assets have been sold and there is no money in the business.

• In February 2018 I received a physical letter at my soon-to-be defunct shop from a law firm for Stockfood America about a blog post that was posted in September 2015 and contained an image of some mushrooms. I immediately removed the photo but didn't realize it was on my server. The letter was ignored and was returned to sender stating "business closed."
• The firm couldn't be bothered to search for the actual LLC's name - they sent it to the title of the web site instead of the actual company
• I received the following email from "Copyright Claims [email protected]" on 5/30/18 for a claim of $1500. There is no registration number for the image on the email or in their "portal" which I logged into.  I also never received the physical copy of the letter they reference, though that may be difficult as the store was closed in February.
  Dear Sir or Madam :
  
  This email is a follow up to the letter dated May 23, 2018 that our law firm sent to you via US Mail.  If you have not received it, please let me now.    If you have an attorney assisting you with this matter, please forward this communication to him or her.   If you do not have an attorney representing you, you may wish to hire one. You may also with to provide a copy of this email to your business insurance carrier.
  Copyright images owned by my client were discovered on the [REDACTED] website(s) as the exhibits attached to the letter show.  If you have a license for the images, please provide me information and accept my apology for the intrusion.
  
   
  
  If [REDACTED]  does not have a license, our client is willing to settle this matter out of court in a fair and efficient manner.   If forced to go to court, my client will ask for the maximum relief possible, which may include statutory damages under 17 U.S.C. §504 for up to $150,000 for intentional infringement or $30,000 for unintentional infringement.  My client would also ask the court to have [REDACTED]  pay court costs and attorneys fees.
  
   To resolve this matter efficiently and amicably, please follow these steps:
  
  (1) Immediately after receipt of this email, remove all occurrences of the image from your website(s), cease using it in any way, and confirm in writing that you have done so.
  
  (2) Immediately after receipt of this email, return to our firm the attached Release License, along with your payment in the form of a valid cashier’s check or money order for $1500 payable to ''Higbee & Associates Client Trust Account''.  This can be returned to us via US Mail. You can also pay online at https://copyright.higbeeassociates.com/resolution. If you choose to make your payment online, you can return the Release License via email to [email protected]. The email must include the case number 512343 in the subject line.
  
  A copy of the letter plus all of the exhibits and evidence in this case can be obtained at the online resolution portal.
  
  Your login info is shown below:
  
  Website: https://copyright.higbeeassociates.com/resolution
  
  Username: [REDACTED]
  
  Password: [REDACTED]
  
  You can also all us at (800) 716-1245.  We will be glad to talk with you about this issue.
  
  Learn more about Higbee & Associates at the following sites:
  
  • A+ Rated With the Better Business Bureau - http://www.bbb.org/sdoc/business-reviews/attorneys-and-lawyers/higbee-associates-in-santa-ana-ca-100071532/
  
  • California Corporation ID C2972583
  
  
  
  Best Regards,
  
  Mathew K. Higbee
  Attorney at Law
  
  Law Firm of Higbee & Associates  (http://www.higbeeassociates.com)
  1504 Brookhollow Dr., Suite 112, Santa Ana, CA 92705
  Phone: (800) 716-1245
• Then on 6/1/18 I received the following from "Copyright Claims [email protected]" (there is a bug in the software so it actually says copyright_holder_first_name instead of the name of the company):
  This is a follow-up to the letter and email that we sent you regarding the unauthorized use of copyrighted materials owned by our client, copyright_holder_first_name}{copyright_holder_last_name}{copyright_holder_suffix}, {copyright_holder_company_title}, {copyright_holder_company_name}  We want to work with you to resolve this in an efficient and fair manner.
  
  Our client's livelihood depends on people properly licensing images.  Allowing people to use work without a license threatens his livelihood. Our client would prefer to resolve this issue without forcing you to incur additional costs associated with hiring a lawyer and defending a lawsuit.
  
  Please call us or go to our secure online resolution center and either make a payment or let us know why you believe you do not owe money for using our client’s work.
  
  
  
  Website: https://copyright.higbeeassociates.com/resolution
  
  Username: [REDACTED]
  
  Password: [REDACTED]
  
  
  
  Sincerely,
  
  Mathew K. Higbee
  Attorney at Law
  
  
  
  Law Firm of Higbee & Associates  (http://www.higbeeassociates.com)
  1504 Brookhollow Dr., Suite 112, Santa Ana, CA 92705
  Phone: (800) 716-1245
  
  Higbee & Associates is a national law with an A+ rating with the Better Business Bureau (click here to verify ). Our lead attorney, Mathew Higbee, has been licensed to practice law since 2006 (click here to verify ). We have 21 offices across the country. Our headquarters is in Santa Ana, California (click here to verify with the California Secretary of State. Select Corporation and search “Higbee & Associates").
• On 6/4/18 I received this email from "Cheryl Supek" with the same email address [email protected]
  My name is Cheryl.  I am a Claim Resolution Specialist at the Law Firm of Higbee & Associates.   My job is to help resolve copyright claims without them having to go to court.  I will be calling you soon to talk about a letter the law firm sent you involving a potential copyright claim by StockFood America, Inc.   If you have not received it, I can provide you an electronic copy.
  
  
  
  I am not one of the attorneys.  I have about 14 days to try and resolve this claim before the claim gets escalated to the attorneys.  The claim gets more stressful and expensive when it gets moved to the attorneys— my goals is to not let that happen to you.
  
  
  Here are a couple of things that can help solve this potential problem:
  
  
  First, if you have a license for the image that was purchased prior to the image being used, please let me know and provide it to me via email.
  
  
  Second, most business liability insurance policies covers this type of claim.  Please contact your insurance provider.  If they say they do not cover this type of claim, I will be glad to have one of our attorneys review your policy to see if they are wrongfully denying you coverage.  It is in both of our interests to make sure your insurance provider is not denying you coverage that you paid for.
  
  
  If you did not have a license or proper business insurance, we can talk about how to come to a reasonable resolution.  I will call you soon.
  
  
  In the meantime, feel free to email me or call me on my direct line at (714) 597-8996.
  
  
  Thank you,
  
  
  Cheryl Supek
  Claims Resolution Specialist

Since reading this forum today, I looked up the number of unique users that have viewed the post.  13 unique users from the date of posting in September 2015 through yesterday, June 4, 2018. I could not find the image on usa.stockfood.com, but I did take screenshots of what similar pictures of mushrooms would cost. $29 for a digital image.

Thank you for being here, I feel comfortable ignoring Higbee at this point.

[clist]

You may want to proofread this post one more time.

Your business name is listed. 

[Karma]

Thanks @clist! Though the funny thing is that isn't our correct business name - they couldn't even bother to find our business name on our home page LOL

[icepick]

It's been a while since I looked at Higbee letters, but this part right here:  If you have an attorney assisting you with this matter, please forward this communication to him or her.   If you do not have an attorney representing you, you may wish to hire one. does not sound familiar with what I've seen.

Can anyone with older letters confirm if this is a new addition to his letters? I'm intrigued at what likely forced its inclusion if it is new.

[Matthew Chan]

I need to go back and look for what you spotted.  In the absence of reading it myself, I will offer a speculation.

MOST lawyers are unfamiliar with the players in the business and the minutia and mechanisms being used to execute on these copyright extortion letters. Hence, lawyers will assume the worst and give not-so-good advice.  I have communicated with many folks who attempted to use a family lawyer, a friend lawyer, vanilla IP lawyer, and the horrific LegalShield/Prepaid Legal lawyers.  Most give bad advice not because of the legal interpretation. These unfamiliar lawyers (which clearly does NOT include Oscar Michelen) lack the background and knowledgebase we have on how the copyright extortion characters carry out their mission.

Non-lawyers are not expected nor are they required to follow professional legal conventions.  Many strategies we discuss on ELI make lawyers cringe. But I would challenge any lawyer to tell me that topics we discuss encourage criminal behavior.

Not all infringements are deserving of compensation even those with filed copyright registrations. It is an entitlement mentality adopted by the other side. There is a such thing as a "de minimus" infringement.  You know how I know? Because the big boys like Disney, movie studios, big publishers, don't issue extortion letters and demand money. All their works are trademarked, copyright registered, etc.  They have serious money and invest it to protect their IP.  They send cease and desist letters with a threat of possible litigation. They don't demand money. They just want you to stop using the image, video, etc.

Most of the parties demanding money are small timers.  They have Higbee and the like sell their narrative that all infringements require money to resolve. It is all bullshit. They might snow people who don't do their own research. But they don't snow me or other long time ELI loyalists. But lawyers who don't follow how copyright is enforced fall for the Higbee argument/propaganda.

Some examples of controversial strategies that make most lawyers cringe despite the fact they are legal (not a criminal act):

1. Avoid service
2. Letting a state dissolve your LLC.
3. Go Dark
4. Embark on an aggressive complaint letter campaign (credit to Greg Troy for this one) towards State Attorney General, BBB, State Bar, etc.
5. Don't respond/defend the matter, become uncollectible.
6. Play chicken.
7. Stand your ground.
8. Dox your opponents.
9. Be loud, aggressive, obnoxious, and vexatious.

Now keep in mind, I am not necessarily endorsing any of these strategies in themselves. Some are tools in a toolbox to be used surgically and strategically. I am the only guy I know that openly discuss these controversial strategies. Most lawyers will not generally discuss these options because they are generally against their code of professional conduct and ethics.

Non-lawyers have a lower bar of knowledge and expectations. My general opinion in dealing with these types of matters is that as long as people don't engage in criminal acts (such as threaten physical or bodily harm which is entirely off the table), most strategies are fair game.

By trying to convince defendants to show their letters to unfamiliar lawyers, the idea is to avoid unusual/controversial defense strategies and to turn an opposing lawyer into an unwitting ally.

It's been a while since I looked at Higbee letters, but this part right here:  If you have an attorney assisting you with this matter, please forward this communication to him or her.   If you do not have an attorney representing you, you may wish to hire one. does not sound familiar with what I've seen.

Can anyone with older letters confirm if this is a new addition to his letters? I'm intrigued at what likely forced its inclusion if it is new.

[Karma]

Matt, thanks for the clear answer and the useful toolbox of things we can do. Love the idea that we can use them surgically and strategically.

I received the 5th email from Higbee today. This time they gave "Cheryl Supek" an email address instead of the generic claims - are they monitoring these forums? If so, I'm overjoyed they are taking my observations to heart. {Hi Higbee Swampsuckers! } They seem to be reading the forum fairly closely, because this time they also attached the initial letter they claimed they sent via mail but was never received, and they also provided the image number which they had never done. Sloppy work Swampsuckers! This email came from Cheryl at [email protected]

Hello,

My name is Cheryl Supek,I am a Claim Resolution Specialist at the Law Firm of Higbee & Associates. My job is to help resolve copyright claims without them having to go to court.  I will be calling you soon to talk this claim and the letter that we mailed to you.  I have attached a copy of our initial demand letter for your review.

I am not one of the attorneys. I have about 14 days to try and resolve this claim before the claim gets escalated to the attorneys.  The claim gets more stressful and expensive when it gets moved to the attorneys— my goal is to not let that happen to you.

Here are a couple of things that can help solve this potential problem:

First, if you have a license for the image that was purchased prior to the image being used, please let me know and provide it to me via email.

Second, most business liability insurance policies cover this type of claim. Please contact your insurance provider and ask if they will cover this claim.

If you did not have a license or proper business insurance, we can talk about how to come to a reasonable resolution.  I will call you soon.

In the meantime, feel free to email me or call me on my direct line at 714-597-8996.






https://resolve.picrights.com/Templates/PreviewPdf?caseId=[REDACTED]&fileName=SOAStockFood%20SOA.pdf

https://resolve.picrights.com/Templates/PreviewPdf?caseId=[REDACTED]&fileName=RHFSigned.Stockfood.US



Page URL: [REDACTED]
Image URL: [REDACTED]



Our client is highly motivated to resolve this matter outside of litigation and willing to settle on this case with contingence on payment being made. Please be advise that this demands and warrants your immediate attention concerning this legal matter and resolving this within a timely manner will be suitable to avoid future penalties involved. Please let me know how you want to proceed.

Best Regards,



Cheryl Supek
Claims Resolution Specialist
Copyright Division

[email protected]
Law Offices of Higbee & Associates ( http://www.HigbeeAssociates.com )
1504 Brookhollow Dr. Suite 112, Santa Ana, CA. 92705
DIRECT PHONE: (714) 597-8996
Phone: (800) 716-1245 - Fax: (714) 597-6559







CONFIDENTIALITY NOTICE:
The contents of this email message and any attachments are intended solely for the addressee(s) and may contain confidential and/or privileged information and may be legally protected from disclosure. If you are not the intended recipient of this message or their agent, or if this message has been addressed to you in error, please immediately alert the sender by reply email and then delete this message and any attachments. If you are not the intended recipient, you are hereby notified that any use, dissemination, copying, or storage of this message or its attachments is strictly prohibited.

[Robert Krausankas (BuddhaPi)]

This is great, that she has her own email address, social media can be a beautiful thing, or it can be ugly if you are on the wrong side... now that I have a name, maybe some doxxing is in order..

[Ethan Seven]

Not all infringements are deserving of compensation even those with filed copyright registrations. It is an entitlement mentality adopted by the other side. There is a such thing as a "de minimus" infringement.  You know how I know? Because the big boys like Disney, movie studios, big publishers, don't issue extortion letters and demand money. All their works are trademarked, copyright registered, etc.  They have serious money and invest it to protect their IP.  They send cease and desist letters with a threat of possible litigation. They don't demand money. They just want you to stop using the image, video, etc.

I am a bit confused.  Are you saying there is a de minimum defense to copyright infringement?  I have heard of the extent of the infringement being used to calculate damages, but never as a defense to liability.

Some of your listed strategies would make me cringe too if the risks associated with them are not properly explained to someone considering them.  I am not sure what they all mean, but they are all 100 percent fine for someone who has nothing to lose, but to someone who has assets, a few of those tactics come with serious risk of making things worse by either inviting litigation and or increasing the chance a judge would award attorneys fees to the copyright holder and increase the award of damages.   

Sure, consider being creative or unconventional.  Options are good.  Just make sure you know that it if you have assets, it is possible to make things worse... heck, even much worse.   

[icepick]

I did go back and look at the letters I have access to from 2017 and that 'hire an attorney' paragraph was different. This is pure speculation on my part, but I don't see Higbee's operation rewriting that section voluntarily to suggest people get a legal opinion before paying him off. My best guess is someone with oversight authority took a look at his letters and told him he had to add something to that effect in it to avoid some kind of rule violation. Maybe a bar complaint or AG complaint somewhere made some progress and hopefully he gets to critical mass soon.

[Matthew Chan]

NO, I do not believe there is a "formal defense" per se but as you say it is an argument to make when someone tries false inflate a value of an infringement. And it is also a perfectly legitimate settlement discussion point and defense. Making an argument does not require an agreement.

 In my view, it is applicable to situations where there is no copyright registration.  It is a fact that many infringements do not result in money demands because of the "de minimus" argument. "It ain't worth it".

And my "list of strategies" was meant to give some specificity of what I consider controversial and cringe-inducing. I did write a disclaimer.  ... keep in mind, I am not necessarily endorsing any of these strategies in themselves. Some are tools in a toolbox to be used surgically and strategically.

I am not going to get into all the ins and outs of what I think and how certain controversial tactics should be used. I don't get paid enough to write freely in detail and how and what I think. I keep threatening to write a book on the subject and maybe I will one day. Meanwhile, people who really want to know what I think either has to be a good friend in business or they will have to pay for my consulting time. But I stand by my assertions. I don't limit myself to "traditional" tactics. If I did, ELI would not have been born nearly 10 years ago.  ELI is living proof that unconventional tactics work in fighting back. Oscar Michelen supports ELI and continues to be a legal advisor because he saw early on how effective unconventional tactics worked.

And this whole notion that because someone has assets needs to bend over and take it up the rear is something I don't accept. It is a factor for consideration, not a determining factor. People who have assets can definitely fight back too. If you don't believe it, you are not looking hard enough. You and I will have to agree to disagree. The limiting factor is generally the person in the driver's seat.

Sometimes it isn't about the money. Sometimes it is about the principle, punchback, and not letting someone fleece you. For some people, fighting back, it is all about the money. For me, sometimes it is about the principle.

I am a bit confused.  Are you saying there is a de minimum defense to copyright infringement?  I have heard of the extent of the infringement being used to calculate damages, but never as a defense to liability.

Some of your listed strategies would make me cringe too if the risks associated with them are not properly explained to someone considering them.  I am not sure what they all mean, but they are all 100 percent fine for someone who has nothing to lose, but to someone who has assets, a few of those tactics come with serious risk of making things worse by either inviting litigation and or increasing the chance a judge would award attorneys fees to the copyright holder and increase the award of damages.   

Sure, consider being creative or unconventional.  Options are good.  Just make sure you know that it if you have assets, it is possible to make things worse... heck, even much worse.

[Ethan Seven]

You could be right IcePick, but my guess is that the change in language is a psychological ploy.  The language projects confidence and infers a seriousness to the matter.   If they send a lot of letters, my guess is that they test the language and that the language of letters reflect the test results.  Do they use the exact same language for different clients?  It is also possible that the client exercises some control.

Also, I am not aware of any state having a rule of professional conduct that requires a prelitigation letter to state the obvious fact that a person may wish to hire an attorney.   Do you know of any that do?    My guess might be colored by the fact that I also am very skeptical about complaints to regulatory agencies having any impact on situations like this, other than making the attorney focus more on the claim. 

[Ethan Seven]

 

In my view, it is applicable to situations where there is no copyright registration.  It is a fact that many infringements do not result in money demands because of the "de minimus" argument. "It ain't worth it".



And this whole notion that because someone has assets needs to bend over and take it up the rear is something I don't accept. It is a factor for consideration, not a determining factor. People who have assets can definitely fight back too. If you don't believe it, you are not looking hard enough. You and I will have to agree to disagree.

I agree that arguing de minus is always appropriate as to limit damages.  Readers just need to know that it is not a defense to copyright infringement.

I am not sure if you are trying to infer that I said those with assets should not fight, but that is clearly NOT my position.  I think those with assets should produce a license or assert a valid defense if they have one. If they have neither, they should hire an attorney who can explain the risks and help them fight.

[Matthew Chan]

Attorney Tim McCormack (who used to represent Getty Images), and a few other lawyers all left the extortion letter business because of a collective campaign of complaint letters to state bars and Attorney Generals against them over the years. Even Getty Images changed their ways because the Washington State Attorney General forwarded complaints to Getty Images for them to respond. I think it became a very annoying experience for them.

A few lawyers did not like that ELI readers were writing and complaining on this forum that specific lawyers were "extortionists" and that their names even APPEARED in a website named "extortionletterinfo" help motivate them to leave the business. Some lawyers like Higbee in California, Sanders in New York, and California lawyer Leslie Burns appear to have thicker skin and understand what they have to deal with being in the extortion letter industry. So, it doesn't run everyone off.

These actions we discuss cause a great deal of inconvenience and upset (collateral damage) to the would-be "threateners". Even the mighty Getty Images have changed their ways. Getty settlement demands are much lower than they used to be. We hardly hear from people complaining anymore. They didn't just change their ways because they one day decided to become nice guys. They changed because the collateral damage they experienced on several fronts took a toll on them. Again, I am not going to outline every single thing ELI discusses but suffice to say time has shown that a lot of our unconventional discussions have been very effective at pushing back.

Readers who immerse themselves into ELI readings will figure out that adopting a PITA (pain-in-the-ass) attitude in defending themselves as part of larger group will do much better than being a lone obedient follower.

I also am very skeptical about complaints to regulatory agencies having any impact on situations like this, other than making the attorney focus more on the claim.

[Matthew Chan]

People with assets DO have unconventional tools, tactics, and strategies (some cringe worthy) to use but that is something I generally prefer not to discuss publicly because I think it will be taken out of context.  I keep certain things close to the vest.  People with assets typically are not the underdogs in many extortion letter situations so I am not as worried about those folks.

I have the good fortune of having had access to various people in various legal positions over the years. Some people will share things with me things that they would not otherwise discuss with the general public. Part of that is because I have more insights than the average bear on legal matters and procedures. Hence, they are more open with me.  The average non-lawyer with no street experience has low level of understanding which is why they get rolled over and they can only accept simplistic advice.

This is one reason why I keep telling victims to get educated. If they have a low-level understanding, the only information they can ever accept is low-fidelity advice.

 I have seen a bit of the underbelly of the legal system and its VERY HUMAN participants. I also know "how things work on the streets" which is very useful in many circumstance. 

I agree that arguing de minus is always appropriate as to limit damages.  Readers just need to know that it is not a defense to copyright infringement.

I am not sure if you are trying to infer that I said those with assets should not fight, but that is clearly NOT my position.  I think those with assets should produce a license or assert a valid defense if they have one. If they have neither, they should hire an attorney who can explain the risks and help them fight.

[Ethan Seven]

I would like to think this forum could impact large scale change.  I am sure it can help on an individual basis.  However, are you sure you are not confusing cause with corollation or coincidence?

Attorney Timothy McCormack has no public record of discipline from the Washington State Bar, neither does Higbee (admittedly,  I only checked CA Andy he is admitted in about 10 states).

Usually state bar associations let the complaintant know the outcome of the complaint.    My guess is that if the complaintants were getting good results, they would be posting on this forum. Do you have any evidence or feedback that shows any adverse action was taken on a complaint to a state bar?

If a state bar reviews a complaint and finds no violation of the rules, my guess is that all similar letters received in the future go nowhere; the attorney probably does not even get made aware of them. 

I know nothing about what drive Getty’s business decisions.