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

[Ethan Seven]

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?

You raise an interesting factor that I have not previously considered in the calculation; that is, the longterm impact or “what impact will this have on future copyright claims?”

However, I would weigh the factor differently.   If someone resolves the claim prior to a lawsuit, which is a public document, being filed with the court, there is very little chance that any other copyright troll would find out about the claim.  Conversely, if the lawsuit is filed, the lawsuit is available for anyone to see online, this seems much more likely to draw more copyright demand letters.  If I represented plaintiffs, I might be inclined to build a list of people/businesses who were sued for copyright infringement and have my clients search those websites. 

Also, in general, a person/business becomes a more attractive target for copyright lawsuits after they have been sued once.  It makes it much more difficult for a defendant to claim that they were unaware of copyright law or the duty to make sure pictures are properly licensed after that person has been sued for copyright infringement.   Plus, a judge is more likely to punish a defendant that the judge believes is a repeat offender. 

I think this factor weighs in favor of resolving the claim in the pre-litigation stage.  The weight of the factor would probably increase if the alleged infringer has a lot of web content and uncertainty about the licensing history of some of the images on the website.   This should be a non-factor if the person/business is absolutely sure there are no other infringements on their website.

I am curious as to how you think other copyright trolls would become aware of a claim that is resolved in the pre-litigation stage, especially considering how these claims probably all involvem confidentiality as part of the settlement.  I suppose theoretically that the lawyers could be sharing information with each other, but this seems very unlikely as it would pose several serious risks and could seriously harm their clients by violating their settlement agreements.   Am I missing something?

[A Lawyer]

@ 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?

Just curious, how do you think other trolls would find out about these settlements? Or, for that matter, how would they even find out that a letter is being sent by Higbee to a particular person in the first place. The letters and settlements are not public record and Higbee certainly doesn't gain anything by telling his competition. I also disagree with your "piggyback" theory. Assuming other trolls could find that information out, I doubt anyone would suddenly be inundated with letters from other lawyers. I think I read on some other thread that these guys use reverse image searches and other stuff, so you only get a letter if the photo appears on your website. I don't think any lawyer would be stupid enough to send a letter and risk their license for a few hundred bucks, just because some other lawyer sent a letter and got a settlement. What would they even say? Unless a person's website is chock full of unlicensed photos, I highly doubt any other trolls would come out of the woodwork all of the sudden.

[Matthew Chan]

I am late to the party and a lot of good discussion has occurred. While I don't necessarily agree with everything Ethan Seven has written and concluded, I admit he has done what I would have if I was inclined to dig in further. I probably won't because of my time constraints.  I also know things are not what they seem so I don't buy into your headline so easily without conditions.

Some quick comments I would like to make to Joan X.

The points Ethan Seven make that there is more to the story of the $48K judgment is entirely spot on and he has taken the time to outline some of the issues he saw which led to the $48K. It didn't just happen without some cause. Michael Grecco is an unusual plaintiff who I am familiar with his prior lawsuits.  Most plaintiffs are not of his kind or his reputation.  Also most people are not infringing upon celebrity photos.  And most people take down photos once informed to avoid the "willful infringement" accusation.

Default judgments can sometimes be reversed and the case be re-opened. I have seen it before. They are not as final as you might thing. But the defendant has to be willing to re-appear. It may not be worth it because it might be uncollectible. Regardless, you can bet that Higbee or anyone else representing Grecco will be leveraging this judgment to irrationally scaring others into settling.

You have also helped Higbee & Associates by posting the "captivating" headline title you did. Most casual readers will read the title and not go any further. Their fears will be triggered by the title of your headline.

I have been in this business long enough so I don't really try hard to "convince" people to change their feelings or fears. You clearly are rattled by this and no one is going to guarantee you will not get hit with a lawsuit at some point however the small the odds are.  Given your ongoing concern about a lawsuit, you either need to negotiate a settlement yourself or go hire Oscar Michelen and get on his legal representation program which is very reasonable priced.

If you go to a random IP lawyer, chances are they will not be aware of the players as we do and how they operate. And chances are they will be pretty expensive.

[Matthew Chan]

I totally agree.

Higbee and others will play this up for all the attention they can get. It is an excellent propaganda tool to use. Hence, we tell people to get educated. The uneducated and uninformed will continue to be victimized with their simplistic views and understanding of this phenomena.

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.

[Matthew Chan]

That was my thought exactly.  "Willful infringement" accusations tend to be leveled at those who do not remove the image(s) in question upon notification. Taking down an image down goes a long way to scaling down the situation.

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]

Did anyone ever confirm if this real or not???

[Robert Krausankas (BuddhaPi)]

Did anyone ever confirm if this real or not???

it's real...

[Matthew Chan]

The paper judgment is "real" as any piece of paper is "real" but it may not be collectible and it is negotiable after the fact.  It ain't like that $48K is actually set in stone if someone is determined to not pay. In many cases, you can't squeeze blood from a rock. Judgments are settled quietly all the time by people who are knowledgeable.  But most average folks don't know it.

Did anyone ever confirm if this real or not???

[Joan X]

I made my final payment on this matter and received a release of all claims from Higbee & Associates.  While I cannot discuss the terms, I am happy that it is over and was not as bad as I thought.   Mainly, I am writing to say thank you for the help and guidance.  This site was helpful.  Thank you. 

[Robert Krausankas (BuddhaPi)]

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/

where in south florida are you located if I may ask? perhaps we could do lunch sometime?

[Ethan Seven]

That is very kind of you to offer.  While I am sure I would enjoy your company and the conversation, I must regretfully decline. I have privacy concerns that are heightened by the nature of this forum.  My caution aside, I also spend most of my evenings as a caregiver and my days are usually spent sleeping/recovering or tending to my affairs.   It was generous of you to offer. 

[Ethan Seven]

It looks like Higbee & Associates is using their results on default judgments as part of their sales pitch.

https://www.higbeeassociates.com/practices/copyright-law/

Some of our notable recent court successes:

Summary judgement denied to BackChina in infringement case

Alex Wild wins $15,000 copyright infringement judgement

Chris Sadowski wins $30,000 copyright infringement judgement

Michael Grecco wins $45,000 default copyright infringement judgement

Michael Grecco wins $60,000 copyright infringement judgement

Sadowski wins $50,000 copyright infringement judgement

[kingkendall]

If Higbee is touting winning default judgement then things might not be going well for that law firm.  Getting a default judgment takes no work on their part besides filing a complaint and letting the clock run out.  There's also a strong possibility they never could collect a dime because if the defendant never responded to the complaint, as an entity they may cease to exist.  It's a win on paper only but is worth crowing about?  However, it does scare and impress the legally ignorant. 

[A Lawyer]

If Higbee is touting winning default judgement then things might not be going well for that law firm.  Getting a default judgment takes no work on their part besides filing a complaint and letting the clock run out.  There's also a strong possibility they never could collect a dime because if the defendant never responded to the complaint, as an entity they may cease to exist.  It's a win on paper only but is worth crowing about?  However, it does scare and impress the legally ignorant.

While I generally agree that defaults are nothing to crow about, I don't think the tactic here is no just to tout "wins on paper" but rather to show people that judges are more than willing to award high amounts of damages for the types of claims Higbee and his cohorts pursue. In my jurisdiction even if you get a default judgment you are still required to "prove up" the damages that you are asking for by submitting evidence to the judge. That could explain why the various amounts of the awards Ethan Seven posted about are so different for each photographer. Just because a defendant chooses not to participate in a lawsuit does not give the judge free rein to award whatever amount they want.

Now would Higbee get that much if a case were to be litigated to judgment with a competent lawyer on the other side? Maybe, maybe not.  The point is, it's completely possible that he could achieve a substantial judgment. For most people, it's probably not worth the time and expense to find out.

Regarding collectability, I have posted a lot about that on these boards in the past. A company can go bust, but if it goes through bankruptcy the assets get divided amongst the creditors in bankruptcy court anyway. That course of action only makes sense if the company has nothing. Otherwise, you are sacrificing the company and they still get paid something anyway. If the company has assets it probably makes sense to fight or try and settle at a reduced amount to make it go away rather than sacrifice the business and go through the liquidation process of a bankruptcy. I remember a discussion on these boards a few months ago about Michael Greco collecting a default judgment against a company for $65K I think (somebody source me), so it's not like Higbee isn't making an active effort to collect on these.

If the judgments are against individuals (as opposed to companies) then there is a higher likelihood of collectability because you can't just "walk away" without doing some serious damage to your personal credit. If you have any assets they will just be liquidated to pay off creditors in bankruptcy, so it might make more sense to scrape up the money and try and settle it rather than nuking your credit for the foreseeable future. Judgments resulting from intentional torts generally cannot be discharged in bankruptcy anyway, and I am willing to bet that Higbee argues that these are "intentional" infringements when applying for the default judgment.

My point is, if you are going to fight then fight, if you are going to settle then settle. If you do get sued, then ignoring the problem and getting hit with a default judgment is usually the worst thing you can do.

[Matthew Chan]

Very nice catch.  Nice little collection of questionable judgments against some interesting legal entities.  I call them questionable since no one bothered to show up and the judge could pick any dollar amount based on his mood. Further, it always comes down to collectability.  Those judgments are so absurdly high, it is almost pointless to make any effort to pay them unless someone is willing to expend the time, resources, and energy to pursue them.

Many of the principals/owners of those legal entities will likely abandon their legal entity. It ends up being a paper judgment against a paper legal entity. Whether it becomes anything more remains to be seen.

The plaintiff will now learn how much that paper is worth. It is worth "something", just not what is published or printed, I can you that!

It looks like Higbee & Associates is using their results on default judgments as part of their sales pitch.

https://www.higbeeassociates.com/practices/copyright-law/

Some of our notable recent court successes:

Summary judgement denied to BackChina in infringement case

Alex Wild wins $15,000 copyright infringement judgement

Chris Sadowski wins $30,000 copyright infringement judgement

Michael Grecco wins $45,000 default copyright infringement judgement

Michael Grecco wins $60,000 copyright infringement judgement

Sadowski wins $50,000 copyright infringement judgement