We've been dealing with this very same issue on an image from Nicholas (Nick) Youngson of NYPhotographic.com since the Fall of 2016. Exact same problem as others (accidental problem on the image's attribution under CC 3.0), dealing with Higbee and Ass.
I immediately deleted the image from our server and took down the page it was on (where it got a whopping 11 pageviews). We offered to settle out of court for a small but very reasonable sum of money. They refused it, and went from asking for $5,000 to $2,000. Then I asked for further proof Youngson owns the image as it's supposedly part of a group of images with a copyright and (as mentioned by another poster here) the proof of registration doesn't directly reference the image itself.
In addition to asking a specialist at Higbee for sales info on the image and an explanation of how Youngson calculated $2,000 in (out-of court) compensation, I (at Higbee's suggestion) made a few inquiries to the US Copyright Office about getting a deposit of registration, but the process has been very slow, and I've yet to hear back from the Copyright Office.
All communication with Higbee has been via email, with "Daniela Lupean, Claims Resolution Specialist - Copyright Enforcement Division."
The case sat as-is for months, with the occasional email and voicemail from Higbee, wondering how things are going with the copyright proof.
Then, in early April, they escalated things and threatened to go to court if they didn't hear back in 24 hours. I sent an email and after some more back and forth, I set up a phone call with the specialist for today (April 14). But after finding this thread a few days ago, I canceled the phone call and offered another reasonable amount of money, though much lower than $2,000. I also said that if Youngson refuses the offer, we'll need to see the info I requested before considering a greater sum. I also told the specialist that if they need to talk to me they can do so via email or leave me a voicemail message.
Today, my employer got the following email (I've deleted some info) ...
From: Mathew Higbee <[email protected]>
Subject: Copyright Claim -
Date: April 14, 2017 11:44:13 AM CDT
Mr. XX-
This case has been moved to the litigation team. I am now your point of contact on this case. Ms. Lupean forwarded your last email to me.
The documentation that we have provided is more than sufficient to demonstrate the validity of the claim. A quick search of the internet will provide you with an abundance of evidence that supports the validity of who we are, who are client is and the ownership of the image that you used. If that facts were other that what we represent, we would be committing fraud and we would be liable under civil and criminal law. If you want me to provide more supporting documentation, I can, but it will end up making this case more expensive for you as the client will pass on the cost to you.
As this is a timely registered image, i you were to prove to the court that your infringement was unintentional, the mimum amount you would have to pay would be $750 plus court costs and our client’s attorneys fees. If the court does not believe your unintentional defense and finds that the infringement was willful, the mimunim amount a judge could award would be $35,000 plus court costs and our client’s attorneys fees.
Our client has already incurred substantial costs tracking down the infringement and documenting it, and our law firm has already spent considerable time communicating with you regarding the case. As a last chance offer to avoid litigation, I will give you a one-time offer of $1,250 ($750 statutory damages + $500 for our time) to settle this case. This offer expires Monday morning, at which time we will prepare the case for litigation. We will also present this offer as evidence to the court that we made earnest efforts and reasonable offers to resolve this case, and ask the court increase award to our client as a result of your forcing this claim to be resolved in the courts.
My review of the Wisconsin Secretary of State records leads me to believe that this is a single owner or closely help LLC and, based on the chronology showing multiple times that the corporation has lost its standing (which leads me to believe that corporate formalities are not well maintained and piercing the corporate veil would be easy), I would recommend that my client name you personally on the law suit.
An offer of $1250 is a dramatic reduction by my client. I hope you make the smart business decision and accept this offer. If you have additional questions or wish to accept the offer, please contact me by email or phone at 714-617-8352 (my direct line).
-Mat
Mathew K. Higbee
Attorney at Law
TL;DR
"As a last chance offer to avoid litigation, I will give you a one-time offer of $1,250 ($750 statutory damages + $500 for our time) to settle this case. This offer expires Monday morning."
This is the first time Higbee himself has sent a message.
Any thoughts on what to do now? I'm inclined to ignore it or offer an third, small amount of money.
Any thoughts would be much appreciated.
Thanks!
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