Photo used with no copyright registration

[yummy1951]

I recently received a demand letter from Higbee & Associates. I called to ask if the photo we had posted on our company website has a copyright registration. The "attorney" handling my claim told me that the photo does not have a copyright registration but I still had to pay the $1500. The attorney also stated that if I didn't pay the fee that the picture could be registered after the fact and then I could be responsible for more $$$$.  Can they demand fees for an non copyrighted/registered photo?? 

[UnfairlyTargeted]

They actually told you the photo had no registration?!  They could have at least lied to you or made up some sort of BS story.  I hope the idiot "photographer" sucks down a whole bunch of Higbee fees for this stupidity.  Personally, I would waste as much of Higbee's time as possible so the moron who decided you should be sent a letter for his worthless photo thinks twice about ever doing that sh*t again!  Sadly, I don't think the "photographer" will have to pay anything.  What a shame.

Please, whatever you do, don't pay anything to them!

[kingkendall]

The only way Higbee can file a suit for statutory damages is if the photo was registered with the copyright office within 3 months of publication.  Otherwise they would have to prove actual damages which is a bigger pain in the ass for them.  Making contact with them was you first mistake.  Giving them nomoney would be your biggest. 

[A Lawyer]

I recently received a demand letter from Higbee & Associates. I called to ask if the photo we had posted on our company website has a copyright registration. The "attorney" handling my claim told me that the photo does not have a copyright registration but I still had to pay the $1500. The attorney also stated that if I didn't pay the fee that the picture could be registered after the fact and then I could be responsible for more $$$$.  Can they demand fees for an non copyrighted/registered photo??

The answer is that it depends. Generally, you cannot sue unless the copyright is registered. The only exception is that if the photograph was created by a foreign citizen outside the United States, then it does not need to be registered prior to filing a lawsuit. It's not that difficult to get a registration so if they want to get one and sue they will, but it costs money and usually takes a few months to get issued.

The real question is the damages. That will probably be the motivating factor for them to decide whether or not it is worth the trouble of registering the copyright and filing a lawsuit. The copyright right laws allow for a copyright owner to choose between actual damages plus the defendant's profits OR statutory damages, which is a fixed amount set by the copyright law ($750 to $30,000 per infringement). If the photo is not registered right now they probably can't get statutory damages. Depending on how you used the photo will determine the actual damages and profits.

For actual damages, it is usually the licensing fee plus maybe a little extra for diminution of value of the photo. The real wild card in these cases is the profits. You said you used it on a "company" website. If you are using it to sell products or advertise your company then they could ask for the profits that were generated, although it may or may not be hard for them to prove. The point is, you need to look at how you used the photo. If it is a commercial use to advertise a business or product then there is probably a higher likelihood they think they can prove profits.

For some people, the right answer is to ignore their calls and emails and hope they don't sue. For others, it's worth the peace of mind just to settle and move on. There really is no right answer.

[UnfairlyTargeted]

My understanding is the trolls can't get fees and costs without it being registered.  Which makes me wonder why the hell any lawyer would even touch this case.  It should be fairly easy for you to prove their damages are equivalent to a $10 istock photo.  So I'd say, let them sue and spend 1000's to get $10 from you!

[A Lawyer]

My understanding is the trolls can't get fees and costs without it being registered.  Which makes me wonder why the hell any lawyer would even touch this case.  It should be fairly easy for you to prove their damages are equivalent to a $10 istock photo.  So I'd say, let them sue and spend 1000's to get $10 from you!

You are correct about attorneys' fees. If the photo is not registered before the infringement began or within 3 months of first publication, then they will not be entitled to an award of attorneys' fees. However, they would be entitled to costs. So that would be a filing fee ($400) and other court costs plus probably process server fees etc. So while they would certainly spend lots of time in a lawsuit, theoretically they would break even on out of pocket expenses. But that is only if the case goes to a judgment.

As far as damages, I agree that in some cases Higbee would have a hard time proving high amounts of damages. It completely depends on what the photo is, who took it, and how it was used. If the photographer has invoices or depending on how it was used, then it probably doesn't matter what you can get on iStock since you didn't use the iStock photo, although it would certainly be worth making that argument.

In my opinion, I think it is only worth fighting if you have an exceptionally strong fair use or other complete defense. The law allows the prevailing party to get attorneys' fees, so that includes the defendants if they prevail. Unfortunately, the way the law is structured, if you used the photo it is very hard to prove a complete defense to infringement. So even if you prove a low amount of damages, you still have to waste time and money getting to that point. Unless you think you can win and get fees then fighting off a lawsuit is only going to cost money and suck away your time.

That doesn't mean you should just acquiesce and pay their settlement amount. Maybe they never sue and you get away with paying nothing. For some people, that's a gamble they are willing to take.

[Ethan Seven]

A Lawyer is correct for the most part.    There is a circuit split on when a plaintiff can file their copyright claim.  Some, like the 9th Circuit, hold that it is as soon the plaintiff files their request for registration.  Others, like the 2nd Circuit, hold that the plaintiff must wait until the US Copyright Office issues the registration certificate.  So, they could file a lawsuit today if they are in a some circuits; otherwise, it would be weeks or months, depending on how fast the USCRO is at issuing the registration certificate.   

Question for UnfairlyTargeted, what makes you think the photo is a “worthless” photo that has a $10 iStock equivalent?    I am not saying it is not, I am just curious if I am missing something.   

[UnfairlyTargeted]

Here's an image of a very active extortionist who I unfortunately came into contact with.  His "treasure", which he's seeded all over the internet to entice extortion is this: https://www.flickr.com/photos/schwabel/2984073568/

But how unique and special is this work?
https://www.google.com/search?q=portland+japanese+garden+maple&source=lnms&tbm=isch&sa=X&ved=0ahUKEwjo3o_Vz_naAhUI1WMKHW8mAy8Q_AUICigB&biw=1920&bih=1094

Not at all.  Many of these images are the same or better and some of them are available for free as creative commons or on istock.  Yet this guy goes around asking people for hundreds of dollars for blog posts.

Do more research and then you find most of the people extorting people are "photographers" who haven't found success, so in order to make money from their new hobby or side job, they resort to extortion.

A successful photographer like Annie Leibovitz isn't out extorting people because she doesn't need to.

[Ethan Seven]

Your logic reminds me of a scene from Black Sails:

https://youtube.com/watch?v=OjAyw80RjjQ

While I get where you are coming from, the case law does not support your argument that money damages should be lowered because there are lower priced alternatives.  Think of it this way, let’s say you own a white Mercedes that sells for $75,000.  What would do you think the judge should do if a defendant who stole it and demolished it said your white Mercedes does the same thing as a $10,000 white Honda Civic, and therefore he should only pay restitution of $10,000?

Hopefully, that helps explain why if there is licensing history that supports the plaintiff’s price, the fact that you do not appreciate the difference between the plaintiff’s image and a lesser priced image will not cause a judge to reduce the award of damages. 

As far as the example you chose, I do not know Tom Schwabel, but it is pretty easy to see that he is a legitimate professional photographer and not a hack or an “extortionist,” especially if he is only asking for a couple hundred dollars for someone using his work without a license.    The guy’s photos are amazing and he travels the world to capture impressive subjects.   He is represented by three different agencies.  He also puts copyright notices his images.  Frankly, I am surprised he is only asking for a couple hundred bucks when he finds someone using them without a license.

My guess is there are unsuccessful photographers who make more on enforcement than they do on actual sales, but I disagree with the conclusion that any photographer who demands compensation for use of their images is a hobbyist or part-timer.    Many big name photographers and agencies are aggressive and even over aggressive in their efforts to collect from those who use their work without a license.   

[UnfairlyTargeted]

I disagree with your example.  It differs in who is setting the value.  In the case of that photo, he is setting the price with no relation to market value.  He can ask whatever he wants and maybe he can get some sucker to pay that price once or twice, but the value is what similar photos are being sold for.  And that price is free to $10.  Just because you say your white Mercedes is $75k doesn't mean it's $75k.  Maybe you sold one for $75k once upon a time to some idiot who overpaid, but you need to consider what the average price of a Mercedes is, and if I can find 25 pink ones and 500 black ones available at $10k, then the price of your car is probably very close to $10k.  Fact is, photos are a dime a dozen and everyone in this forum needs to understand that.

People like him are extracting windfalls all over the place, like this hobby photographer getting equipment for photos he'd probably never sell: https://www.dpreview.com/forums/thread/4179226

You speak of ethics?  Is it ethical for someone to get a hundreds or thousands of dollar windfall for a $5 photo?

Speaking of amateurs, Schwabel doesn't have a website or a business license that I could find.  Pretty much no clients or publications either.  In fact, based on my research of him, I reported him to the IRS and the Oregon AG for extortion and tax evasion for not reporting his extortion income.  Makes you wonder what else he's not reporting to support his high-flying lifestyle?

[Ethan Seven]

Maybe I should have specified that the market price for the Mercedes was $75,000.  The point is the same.  The case law is clear.  The actual damages are based on the value of the actual work used, regardless of what value the defendant places on it or what lower price alternatives are available. 

See Oracle America, Inc. v Google, Inc. 2012 WL 44485  “to determine a work’s market value at the time of infringement, the Court should apply a hypothetical approach, i.e., what a willing buyer would have been reasonably required to pay a willing seller for the owner’s work.”    Notice, the court looks at the owner’s work, not a reasonable substitute.

So, if the photographer has sales history to support the demand amount for the photo, a court will use that to calculate damages, regardless how the defendant’s lack of appreciation or under utilization of the photo. 

It is important to note that there must be some sales history for the owner’s image or work, the court will not enforce arbitrary or fabricated prices. 

I am not an expert on Schwabel, but my quick look lead me to believe he is professional photographer.  I don’t have the inclination to dig much further.  I will take your word for it. 

[UnfairlyTargeted]

I doubt Schwabel would be able to produce any invoices, and even if he did I can imagine they'd be falsified or grossly inflated.  How would you even verify the amounts without finding his clients and bringing them into court?  I certainly wouldn't take any invoices or sales records provided to me at face value.

Moving on from that, so since you appear to be versed in US law, then tell me how the courts would view someone who, at best, arbitrarily enforces his copyright to ensure a maximum windfall, or at worse, actually is uploading his works without copyrights to free image and wallpaper sites?

A quick check of his image on Google shows 25,270,000,000 sites with his exact image.  How did that image get there if he hasn't been actively deceiving people into taking his image?  Why isn't he pursuing all of these people?  Schwabel is clearly seeding the internet to make money off this crappy unoriginal Peter Lik knockoff image.

[Ethan Seven]

Owner has to prove sales history. Defendant can challenge or rebut the evidence. 

How I view it does not matter much.  The law does not require that an owner always enforce their rights.  That being said, if the owner gave the image to others with the understanding they would license it for free, that would devalue the sales history and reduce the damages. 

I do think some owners like to set traps off which they can profit through enforcement.  That is just one reason people should get their own images from reputable sources. 

[UnfairlyTargeted]

Bingo.  Fortunately, I get real dirty when people try to trap me.  I hope he's enjoying all of his audits and bad reviews of his "business".  It's unconventional and probably ill advised by any attorney, but it works powerfully.

[Matthew Chan]

Never call them! If you must communicate, use email only.

And you ask if they can demand fees for a non-registered photo?  They are doing it now! They can "demand" anything they want because you can't stop them.  But that doesn't mean you have to blindly comply with their "demands".

And if it was so easy to get more money out of people, they wouldn't be talking to you. They would have done it already.

I recently received a demand letter from Higbee & Associates. I called to ask if the photo we had posted on our company website has a copyright registration. The "attorney" handling my claim told me that the photo does not have a copyright registration but I still had to pay the $1500. The attorney also stated that if I didn't pay the fee that the picture could be registered after the fact and then I could be responsible for more $$$$.  Can they demand fees for an non copyrighted/registered photo??