Settled with PicRights, now getting harassed by Higbee for the same image

[themichaelhanna]

I work for a church (a non-profit 501(c)(3) organization) called The Sanctuary Downtown.

On July 17, 2018, our Senior Pastor received an email (on his personal email account) from PicRights about infringement on our website with an image by photographer Jill Greenberg. I researched the matter (including a lot of time spent on this excellent site; thank you Matthew Chan and ELI!) and decided our best course of action was to go ahead and settle with them. I responded using my work email account and the reference number from their original email. They sent us the signed settlement agreement and request for payment on July 27, 2018, giving us until August 15th to get them a check. We signed the agreement and mailed them a check on August 1st.

Situation resolved. Right?

Then, on September 5, 2018, on my work account, I receive an email with the ominous subject line: Follow-Up from the Law Firm of Higbee & Associates

Dear Sir or Madam :

This email is a follow up to the letter dated August 31, 2018 that our law firm sent to you via US Mail.  If you have not received it, please let me now [sic].    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 [sic] to provide a copy of this email to your business insurance carrier.

Copyright images owned by my client were discovered on the The Sanctuary Downtown 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.

Then they went on to tell us how much their client could sue for in court and made a settlement demand twice the size of the initial PicRights demand.

The email didn't name his client, didn't identify the infringing image, didn't provide a screenshot or url to say where the image was found...it just referred me to an attachment to a letter I hadn't received, or told me to click a link and input a random password to see all the details. It went against all of my spam instincts to do a thing like that. I came here to ELI and did more research, and expected Higbee would probably follow up, but decided to wait.

So, on September 11, 2018, they did follow up with two emails: Ignoring this Problem Will Only Make It Worse, and Case Manager Introduction. From these two emails, I learned the name of their injured client (Jill Greenberg) and my friendly case manager (Cody Donnell).

This time I logged in to their resolution portal and discovered that it was the same infringing image, had the same image name ID, and same screenshot example—the same desktop, Firefox browser, Windows date and time in the lower right-hand corner—we had received from PicRights. This suggests that, at the very least, PicRights and Higbee have access to the same database of infringing images and example screenshots.

But I think their data sharing goes beyond that. Unlike the initial PicRights email that somehow came to our pastor's personal account, this Higbee email came directly to my work email—and only my work email. It didn't go to anyone else on staff. I just checked the PicRights paperwork and on the page that confirms our payment was received and we are all settled up, it lists my work email as the contact.

I've read elsewhere on ELI that PicRights sometimes hands cases over to Higbee, so their data sharing is probably unsurprising. But why would they share all that information and NOT the fact that we have already settled with Jill Greenberg through PicRights? Is that a legitimate "error" in their system, or something they haven't gotten around to fixing because every now and then a sucker will pay up again?

I'm sorry, this post is far too long. Please forgive a first-time poster...

I just want to make sure I respond the right way. I'm inclined to tell them that their client already settled this matter with us on July 27, 2018 through PicRights Ltd. and give them the reference number. That should be enough for them to confirm it, either with Greenberg or PicRights. I'd rather not send them a copy of the settlement agreement, since that would make their lives unnecessarily easy...but if any of y'all think that's childish or somehow dangerous, I suppose I can attach the settlement agreement to my reply, too.

[Matthew Chan]

It appears there was a clerical mistake and probably slipped through the cracks. Keep it simple. Email them that the matter was signed, settled, and paid. Give them enough info so they can go look it up.  I have never heard of anyone double-dipping on a claim.

[DavidVGoliath]

I'm with Matthew on this; you've settled this claim and it's most likely a system glitch that saw you receive this fresh letter.

With that said, if you get *any* push-back from Higbee as to the veracity of your settlement, do follow up with that information here. I might have a pro-copyright, pro-creator stance around here but, above all that, I am very much against abuse of process.

[icepick]

I love seeing the language changes in Higbee letters as time passes. I'd wager he definitely got some blow back on some phrasings from someone. In the 2017 letter I've seen there is nothing about hiring an attorney or forwarding the communication to your lawyer if you already have one.

[btb4219]

The same thing happened to our company recently and a few others identified online.     Has anyone else been asked to participate in a class action on this? 

[Matthew Chan]

Up until yesterday for the last 10 years, our general stance is that class action discussions are a non-starter. A few lawyers have come and gone looking to the matter which resulted in crickets. However, respected DC lawyer Paul Alan Levy wrote this yesterday:

As I see it, Higbee is skating at the ethical edge here. If he does this on a regular basis, as it appears he does, he may will be leaving himself vulnerable to a class action claim from victims to his bullying who have paid him based on such misleading representations.

https://pubcit.typepad.com/clpblog/2019/02/consumer-warning-copyright-trolling-by-higbee-and-associates.html

Mr. Levy seems to be indicating there might be a class action claim possibility from those victims who have actually paid him, not those just being threatened and have not paid. That is the most I have heard from any lawyer.

The same thing happened to our company recently and a few others identified online. Has anyone else been asked to participate in a class action on this?

[daniobb]

I absolutely believe a class action is one way to potentially bring awareness and put a stop to Higbee.  Also, Matthew Chan, are there any risks to filing a complaint against Higbee with the California Bar Association? 

[Matthew Chan]

There is always a some level of risk when you file a written complaint about someone or business. People don't like it, get defensive, and you draw attention to yourself.  As such, your complaint should be grounded and credible, or you come off looking badly. In the case of Higbee's operations, they likely deal with hundreds of cases at any given time.  But if you were to file a complaint, you would certainly draw attention to your case.

And if they attempted to retaliate in an unfounded or inappropriate way, they would subject themselves to yet another potential complaint.

Essentially, I come from the school of thought that file a complaint if you think the situation is valid.  But if you are doing it "just because" or for weak reasons, it might not be a "net positive" result.

The whole class action thing is still unlikely for a variety of reasons. But who knows? There might be some brilliant lawyer that could surprise us one day and take it on.

I absolutely believe a class action is one way to potentially bring awareness and put a stop to Higbee.  Also, Matthew Chan, are there any risks to filing a complaint against Higbee with the California Bar Association?