Judge Awarded Higbee & Associates $48,000 for Use of 1 Photo!!!

[Joan X]

According to Higbee & Associates twitter account, they just got awarded $48,000 for the use of a single picture.  Is this real???  Can someone who knows how, verify if this is real?  I just went from fretting a little to freaking out.  I am not going to sleep.

Here is the link:  https://twitter.com/higbeecopyright

The document is at https://www.higbeeassociates.com/wp-content/uploads/2018/05/Grecco-45K-Default-Judgment.pdf

I have been ignoring Higbee’s emails and calls, but am now having serious second thoughts.  I could afford to pay one or two thousand dollars, but $48,000 would require me to refinance my house and take money out.   The thought of it makes we want to puke.   Have I screwed myself???  Politicians need to fix this law.

[Ethan Seven]

I am 99.9999 percent sure that is a real court order.  I am working off of my iPad and cannot access Pacer, the court web site, to get all of the details.  I will check when I get in the office on Tuesday morning.  Higbee & Associates is a reputable law firm who has too much to lose by posting a fake or altered court order. 

There is no need to puke or lose sleep.  It does not sound like anything has happened to you yet.  You have not “screwed yourself.”

I am  curious about the underlying facts of the case.  I will go through court documents on Tuesday.  But, even without going through them, there are several important things to take away from this:

First, this should remove any doubt that these cases, even involving a single image, can result in significant liability.  There is serious risk in ignoring copyright claims.

Second, do not take advice from anyone who does not know all of the relevant facts of your case, such as how the image was used, who is the copyright holder, what state/circuit the case can be filed in, who the attorney is, what defenses are available or what you have to lose.   It is easy for people to boldly say ignore the claims when it is not their money that is on the line.

Third, even though this is a default judgment, a federal judge evaluated this claim and awarded the copyright holder a lot of money and ordered that the infringer pay Higbee’s attorneys fees.

Fourth, Higbee can use this judgment to support claims for damages in future cases.  This is a good outcome for him and his client, which is probably why it is on Higbee’s Twitter.

Okay, a couple things to keep in mind:

1, this is a default judgment, meaning the defendant did not fight back.  This means the judge only gets one side of the story.  The outcome may have been different if there was an attorney fighting it.

2, the copyright holder was Michael Grecco, who apparently is a very legitimate photographer.  It is easier for Higbee to get a bigger award of damages when the photographer is well established.  He might not be able to get as large of an award of damages with a different copyright holder. 

3, Higbee has a judgment, but he still has to collect the money.   The defendant may never have the ability to pay. The defendant can also negotiate with Higbee to voluntarily pay a reduced amount, instead of making Higbee go through all the work involved in collecting.

Things I wish I knew and might find out when I review the pleadings:

What was the original pre- litigation demand amount, if any?  Based on what I have read on here about Higbee demands, my guess is this case could have been settled for a couple thousand dollars or less.

How was the photo used?

What was the licensing history of the photo? Though, this might not be too relevant as the award of damages was statutory.

Why did the defendant not answer the complaint?

Will the defendant file a motion to set aside the default?

You probably don’t have anything to worry about during the next few days as it is a three day weekend for the courts and most attorneys.  Higbee could theoretically electronically file a lawsuit while th court is closed, but  i imagine that is very unlikely.  You should sleep.  Focus on the fact that you have options and nothing bad has happened yet.  Also, the outcome in this case is not typical.  If it were, Higbee would have a lots of stories about them on his twittter.

[Joan X]

I was hoping to hear that it was fake..... but Ihad a feeling it was real.  I appreciate the reply. 

My understanding is that they are less likely to sue people who do not have a lot of money.   Is there a way for Higbee & Associates to tell if I have money???

If I do send them an offer to settle the claim, is it better to do it by phone or email?  My friend’s husband is a lawyer.  Or if i do, would it be smart to have him send it?

[icepick]

I haven't looked at the case history but one thing that jumped out at me is it is for 'willful infringement' so they probably left the images up or something equally careless. I don't see it as anything to be alarmed about for people that have facts refuting any willful infringement claim Higbee might make, but that's just my opinion.

[Joan X]

Thank you.  That helps. I am pretty sure we removed it the from the page within a few days.  I dont want to go into too much detail.   The definitions i see about unitentional and wilful copyrigth infringement seem to overlap.  Can someone provide some clarity on what these terms mean???

[kingkendall]

Getting a default judgement is nothing Higbee can crow about.  It just means the defendant didn't respond to getting served court papers in the lawsuit.  Notice how Higbee didn't say it was a default judgment in he tweet.  He does mention $48,000 though and that is meant to scare the timid into paying up.  It's all part of his scare tactics. 

[kingkendall]

First, this should remove any doubt that these cases, even involving a single image, can result in significant liability.  There is serious risk in ignoring copyright claims.   

If this doesn't sound like it was written by a lawyer for Higbbe and Assocs, I don't know what does.

[Ethan Seven]

I downloaded the complaint that Higbee & Associates filed in the case that resulted in $48,000 judgment.  It was Michael Grecco v. Monica Dodge d/b/a Fashion Illuminati.  I will write about it later today after I read it.

To your question about the definitions you mentioned that speak to the intent of someone accused of violating copyright law:    There are three levels of intent and each come with a very wide range of damages and different burdens of proof.  The federal law that governs it sets it forth at 17 U.S. 504

The typical infringement is usually referred to as unintentional.  The statutory damages on these claims range from $750 to $35,000.

Section 504(c)(2) describes willful Infringement.  The courts typically define it as “the defendant knew or should have known it infringed Plaintiff’s copyrights.  Willful copyright infringement does not require a showing of actual knowledge.  To prove willfulness, the plaintiffs may show that the infringer had actual or constructive knowledge that it was infringing the plaintiff’s copyright or that the infringer acted in reckless disregard of the ugh probability that it was infringing plaintiff’s copyrights.”  Arclightz and Films Pvt. Ltd. v. Video Palace Inc., 303 F. Sup. 2d 356, 361-62. 

This site has some good information about the different types of infringement, including innocent infringement, the burdens and available damages:

http://vondranlegal.com/what-is-the-legal-definition-of-willful-copyright-infringement/

[A Lawyer]

First, this should remove any doubt that these cases, even involving a single image, can result in significant liability.  There is serious risk in ignoring copyright claims.   

If this doesn't sound like it was written by a lawyer for Higbbe and Assocs, I don't know what does.

HA! Nice observation. Not sure Higbee would be bold enough to post, but who knows. He probably does reads these threads though. I think Ethan Seven's point was that it is incredibly risky to avoid a lawsuit once it's been filed. As was pointed out, it was a default judgment, which certainly makes this situation a bit different than a typical letter or phone call, but still something to consider when deciding how to respond.

[Ethan Seven]

Sometimes the obvious needs to be stated.  That is what three decades of being in the legal practice will do to you.   I do have free time on my hands if Higbee is hiring in south Florida.   Though, I may be a little too defendant friendly and old for their crew.   

https://www.higbeeassociates.com/about/attorneys/

[clist]

Sometimes the obvious needs to be stated.  That is what three decades of being in the legal practice will do to you.   I do have free time on my hands if Higbee is hiring in south Florida.   Though, I may be a little too defendant friendly and old for their crew.   

Agreed.

Everyone who receives a demand letter should definitely take it seriously and get educated.

[Ethan Seven]

I read the complaint and it was pretty vanilla, insofar as nothing jumped out as to why the judge awarded $48,000 for the use of one image, other than the copyright holder and plaintiff was an established photographer and Higbee claimed the use constituted willful infringement for commercial benefit.

The picture was a photo of Cher.  It was used for editorial purposes on the web site www.fashionilluminati.com

From Higbee & Associate’s 8 page complaint, which was electronically signed by Mathew Higbee:

“10. ... Michael Grecco is an award-winning commercial photographer and film director noted for his iconic celebrity portraits, innovative magazine covers, editorial images and advertising spreads...”

“19. Plaintiff is informed and believes that Defendant used Plaintiff’s copyrighted image without permission... for commercial benefit...”

“20. On information and belief, Defendant’s use of the image was deliberate and willful.”

A couple more things stood out:

1. They named the business and the business owner personally.
2. They filed it in Nevada and not in California or New York, where the plaintiff has studios.  Nevada and California are both 9th Circuit courts, so there might not be too much to this; especially since according to Higbee’s twitter and web site, they have offices in both states.

I will go through the motion for default judgment when I get a chance. 

[Joan X]

Thank you for the very thoughtful and detailed responses.  I am very grateful for the encouragement and different point of views... you helped me get through a very stressful few days!!!

I made an appointment for a phone consultation with an attorney who does intellectual property law.  I emailed him copies of the information I received from The Law Firm of Higbee & Associates.  I also sent him some exerts from this forum.   So far, I am $175 into it.  But I feel better just knowing I have a course of action. 

I am looking forward to not having to think about copyright law, demand letters or law suits.  Again, thank you!!!

[kingkendall]

@ Joan X

It sure sounds to my like your leaning toward coughing up some cash to a copyright troll.  If it helps you sleep at night, that's fine and up to you.  But, if you go that route in light of the fact the chances of you actually getting sued is extremely small, the you become exactly what Higbee and other trolls are in business for, snatching up the "low hanging fruit."  Also consider this.  If you do settle without getting a summons and complaint filed against you in a federal court, you don't think other copyright trolls won't notice and send other demand letters your way?

[Robert Krausankas (BuddhaPi)]

not to mention, most lawyers will suggest you pay them to avoid a lawsuit.