Photo infringement overview with important helpful tips – Using a Copyrighted Image on your website or blog without a license can be COSTLY!
2020 Photo Infringement Highlights
IP NEWS: We are still seeing a good number of calls from people who have received photo infringement demand letters from companies like PicRights, AP, Reuters, Agence-France-Presse, Higbee & Associates and the Gafni law firm. A few common things we are seeing:
- Clients posting photos on old blogs (and forgetting about them)
- People finding images on Google "licensed for reuse" and think that is okay to use (it isn't)
- Companies hiring out-of-country web designers (ex. on Fiverr) and not getting copyright free images (make sure and insist on it)
- Using photos marked as "creative commons" and forgetting to provide the attribution or following the instructions of the photographer
- Using stock photos of a website (ex. Wix) and when you migrate over to another platform you use the same photos (yet, now you are not licensed to use them per Pix own license)
These are some of the typical scenarios we handle at our photo infringement defense practice.
2019 Updates on Higbee Photo Infringement Letters
IP NEWS: The Santa Ana based law firm of Higbee & Associates claims it is not expanding internationally to other countries outside the United States. Their website notes:
"The firm will be partnering with law firms and copyright enforcement agencies in other countries. The firm's clients will be able to use the firm's online software to see detailed, up to the minute notes and have interaction on every case, regardless of what country it is in or what international firm is handling it."
They claim they have recovered over 25 million dollars for their client and state that the expansion will include:
"Austria, Belgium, Brazil, Denmark,, Finland, France, Germany, India, Ireland, Luxembourg, Netherlands, Norway, South Africa, Sweden, United Arab Emirates and the United Kingdom of Great Britain."
CALL US IF YOU GET A HIGBEE PHOTO INFRINGEMENT LETTER at (877) 276-5084. Click the image above to follow us on Facebook.
Potential Defenses to Accusations of Photo Infringement
There are some recognizable defenses and mitigating factors such as:
3. No commercial use (usually considered a defense due to statements Plaintiff attorneys have made indicating they do not want to pursue non-commercial uses).
4. Public domain images were being used (ex. a photo from the 1800s where the image copyright has expired)
5. Creative commons images were being used properly
We have helped many companies (including third-party webmasters, real estate companies, and others) review the letter, advise on the rights and negotiate settlements in many cases. In some cases, a company may want to look at cyber insurance policies or seek indemnification from a webmaster that failed to clear rights to the images used on corporate digital property.
If you received a photo infringement letter from companies such as Artist Defense, Masterfile, Getty Images, BWP Media, Sanders Law PLLC, or Higbee & Associates (or other company) this blog will hopefully prove helpful. We can help individuals who receive cease and desist letters, subpoena notices, legal demand letters seeking monetary settlements, and federal copyright infringement matters.
This post deals with infringement letters from Higbee & Associates and what I have learned of their business practices. This is not to disparage them in any manner for pursuing copyright photo infringement claims.
Copyright Photo Infringement Defenses that are Not Likely to Succeed
Click here to listen to our podcast on weak excuses to copyright photo infringement.
Overview the IP enforcement process it appears Higbee & Associates uses
Higbee appears to be a “technology-driven” company. They handle criminal expungement cases through a “recordgone” name and their website indicates they handle immigration, family law, and other legal matters including photo enforcement claims. They claim to be a “National Law Firm” (I am not totally sure what that means) but they appear to claim they have offices in more than 10 states. At any rate, as to the copyright infringement services here is the way it appears to work:
- Photographers, graphic designers, and others can log in to their website and upload their photos
- It appears they can upload several thousand, perhaps as many as 10,000
- Higbee then appears to run these photos through one or more sites that perform a reverse image search (aka reverse photo lookup)
- It appears they are able to generate a report that sets forth a list of where the copyright holder's image, jpeg, or gif shows up
- They can then discuss with the copyright owner which of the alleged infringements they might want to pursue
- Then, a demand letter and/or cease and desist letter is sent to the alleged infringer often demanding that a settlement sum be paid (let's just pick a number $1,000). Click here for a thread on Reddit where someone thought the Higbee letter was a scam. Photos or links to the alleged infringement may be provided.
- The letter may attach a certificate of copyright registration (if there is one) they claim to take cases whether the copyright is registered or not.
- The letter alleges copyright infringement and implicitly or may explicitly reference litigation (see video below – Does Higbee file lawsuits?). You can see a sample copy of one of Higbee's legal letters here.
- The letter may contain a pre-signed settlement release (release of copyright infringement claims) and “license” for past alleged infringing use.
- Alleged infringers can pay online (log in with a user name and password they send you) or possibly in other ways (ex. by credit card)
- The cases are usually negotiable and you may be dealing with either a state-licensed lawyer or perhaps a “copyright case manager” or “Claims Resolution Specialist” from the “Copyright Enforcement Division:” (you can check their Facebook page and see them hiring these types of people)
- Higbee's clients then, can apparently login and see the status of their cases through an online management system (like a customer portal) and Higbee advertises that they will get them paid!
This appears to be the general process that happens over and over. Some reports I have read indicate that the firm has over 10,000 clients but I have no way of verifying this, and it is not clear if this is limited to its copyright law practice or some other area of law.
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Overview of demand letter you may receive
In one case I reviewed, here is what I found to be the general structure of their letters (Click on the link above to see the sample letter I found online):
- The letter may feature their logo and represent that they are a “National Law Firm” (Note: I don't know what it takes to qualify as a “National” firm).
- There may be a claim that you upload or use a copyrighted photo on your website or blog (without paying a proper license fee) and the letter asks if you have a license then you should show it.
- There may be a copyright registration proof attached**
- You may be given a “claim number” and a correspondence email address (I suppose their is a claim number because they are likely dealing with many clients and have a lot of infringement business – we'll get to that below.
- The letter may indicate they represent the rights holder as “attorney in fact” or that they just represent a party (ex. RM Media Ltd.)
- A copy of the infringing photo(s) may be included, along with a list of URLs where the unlicensed image may have appeared
- The letter may ask you to remove all instances of the infringing image within a certain amount of days (ex. 5 days)
- The letter may ask you to agree to a settlement for a certain amount of money (ex. $1,000 to $5,000 or more) and may offer to grant you a retroactive license for past use of the image (but may not be offering you the rights to use the image past the “effective date” of the settlement).
- You may be given the option to mail in a payment or submit payment online as noted above
- The United States copyright law may be referenced suggesting that your legal liability could reach as high as $30,000 to $150,000. See our important video on Copyright Infringement Damages and Penalties.
- The letter may offer terms of a liability release or “release license” (with attached “Rapid Conditional Release License Agreement.“).
- A credit card authorization form may be included or payment options and instructions provided
- The contract may already be signed by a Higbee attorney (yes, before you have even agreed to the terms). Making it such that all you would have to do is to sign and accept and you would have in theory a binding contract (NOTE: I would make sure you are getting a complete copyright release for all officers, directors, etc. and that all potential Defendants have agreed and signed off). Usually, it makes sense to ensure that an actual party to the dispute has signed off on the settlement so they cannot later claim “my lawyer signed that without me approving” but the Power of Attorney form may cover that issue. But again, these are things that are worth closely examining before you sign and send in money to Higbee and this can be worth retaining us as legal counsel to review the settlement amount and the settlement. We do this for a flat-rate fee.
**NOTES: Make sure to check the dates of copyright registration (if any). When was the work first published? Also, if there is a copyright registration who is the real owner of the rights? Is it the same company as listed in the demand letter? If not, are you dealing with the right party? Can they prove a power of attorney or that there was an assignment of ownership rights? The demand letter might include a power of attorney representation and that should be checked if so.
COMMON COMPANIES WE TYPICALLY SEE: Agence-France-Presse, AP, Grecco Productions, Nicholas Youngsen / R.M. Media Ltd., ImageRights, PicRights, Reuters.
What if the use of the photo was NON-COMMERCIAL? Listen to this podcast
PODCAST: Say you received a letter from some type of photo rights agency (but thought it was a "scam" as many people have told me) alleging they represent Agence-France-Presse and you did not settle the case because you thought your use was NON-COMMERCIAL in nature and did not think the letter was real. Then, you get a letter from a real PHOTO INFRINGEMENT law firm, Higbee and Associates and now the monetary demand has increased. There may be hope if your use was non-commercial as they define in their letter. Listen in.
What are the potential penalties for infringing a photo or digital image?
We have discussed copyright infringement damages in this video. Your initial demand letter may inform you that you can be hit with damages as high as $150,000 if willful copyright infringement can be shown.
Don't forget the “Fair Use” doctrine
When you receive a cease and desist or legal demand letter from an IP law firm, you need to ask whether or not your conduct is protected by the first amendment or the “fair use doctrine.” Here is one video that can explain it a little bit better and help you find cases in your jurisdiction that may help you oppose the demand letter:
It is important to point out that in some cases your use of the photo on your website, blog, twitter, Facebook, or youtube, for example, maybe deemed “fair use.” We have talked about this in many different blogs. It would seem that following the Prince “Let's Go Crazy” case* (involving the dance video) that the photographers should be considering FAIR USE BEFORE issuing their legal demand letters, but we cannot confirm or deny that this is the case. For me, it would be great if they included a statement of the fair use factors and explained why the use is NOT DEEMED fair use, but I have not seen such an assessment like that.
Being a “fair use advocate” I would hope for this kind of analysis before sending legal DMCA “takedown” letters or sending monetary demand letters. However, that is not specifically required. Where this comes up can be cases where you have a non-profit business using a photo commenting on a matter of public importance or public affairs (news, weather sports kind of thing), and where the website makes no attempt to commercialize the photo or monetize the website. In these cases, a fair use defense could be viable and before any lawsuit is filed alleging copyright infringement, one would hope these factors were considered. If not, as a litigation point, a Rule 11 motion for sanctions may be appropriate, and there is case law indicating that Defendants can recover their attorney fees for any bad faith filing of copyright infringement claims. So again, as copyright counsel we can take a look at this potential defense.
See Lenz v. Universal Music Corp which noted per Wikipedia:
Lenz v. Universal Music Corp. 01 F.3d 1126 (2015) holding Copyright holders must consider fair use in good faith before issuing takedown notices for content posted on the internet. This a decision by the United States Court of Appeals for the Ninth Circuit.
VIDEO – how to respond to a photo infringement letter (listen to this if you are TIRED of all this READING)!!!
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Does Higbee & Associates file lawsuits for photo infringement?
Yes. It is possible.
Here are some sample allegations in one case I viewed on Federal Court Pacer Search: Case 2:17-cv-07098-R-JEM Document 1 Filed 09/26/17 filed in the Central District of California:
MICHAEL GRECCO PRODUCTIONS, INC. d/b/a MICHAEL GRECCO PHOTOGRAPHY, INC., Plaintiff,
CREATIVE CARE, INC. d/b/a www.creativecareinc.com; and DOES 1 through 10 inclusive, Defendant.
“Michael Grecco Productions, Inc. d/b/a Michael Grecco Photography Inc. (hereinafter “Plaintiff”), by counsel, brings this action against Creative Care, Inc. d/b/a www.creativecareinc.com, and DOES 1 through 10 inclusive, (hereinafter “Defendants”), with regard to the unlawful use of a copyrighted image owned by Plaintiff.”
“Plaintiff's principle, 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 for such companies such as NBC/Universal, GE, Pfizer, HBO, Kodak, ABC, IBM, Yahoo!, ESPN, Wired, Time, Entertainment Weekly, Esquire, Premier, and MAXIM. His work is regularly featured in prestigious galleries around the world.”
“Plaintiff is informed and believes that Defendants used Plaintiff's copyrighted Image without permission and that Defendants published, communicated, posted, publicized and otherwise held out to the public for commercial benefit, the original and unique Image of Plaintiff without Plaintiff's consent or authority, and acquired monetary gain and market benefit as a result”
“PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment against Defendants as follows:
• For statutory damages against each Defendant in an amount of $150,000.00 for each infringement pursuant to 17 U.S.C. § 504(c);
• For general and special damages against Defendant according to proof together with interest thereon at the maximum legal rate;
• For costs of litigation and reasonable attorney's fees against each Defendant pursuant to 17 U.S.C. § 505;
• For an injunction preventing each Defendant from further infringement of all copyrighted works of the Plaintiff pursuant to 17 U.S.C. § 502; and
• For any other relief, the Court deems just and proper.”
So yes, when you get a legal demand letter or copyright infringement notice from a law firm, it is important to look them up on the Federal Pacer, and in this case yes, federal court lawsuits are possible.
Don't forget the settlement language.
There are many different ways to tell Higbee and their photographer clients to "get lost and don't come back" but you have to make sure you are getting a good release of all copyright claims. Here is a sample clause, but each case is different and may require a different customized settlement language.
"Photographer (Releasor) and its parent companies, successors and assigns and subsidiaries, hereby release and waive and dismiss all claims and rights against Releasee, and all its employees, officers, directors, parent companies, subsidiaries, representatives, and agents from any and all claims, whether known or unknown, up until the effective date of this settlement agreement. No further legal action will be taken or pursued against the Releasor in any kind or manner, for any claims known, or unknown, and all things learned during the course of the investigation and pursuit of the claims herein that are subject to this agreement shall be held strictly private and confidential and shall not be shared with any third party or court except as to the extent such may be required by law. Signing this agreement is not an admission of fault or liability but rather, a settlement of a disputed claim."
Online Resources & Final Tips
- Here is a blog thread that talks about experiences people have had with Higbee & Associates filing lawsuits when they are not paid.
- Two defenses that people seem to elude to online (that may or may not actually be viable – but when your back is up against the wall you have to look for all possible defenses to copyright infringement) is UNCLEAN HANDS. One person pointed out that some of these photographers are really good at SEO search techniques and are good at getting their photos indexed in websites like Google or Yahoo or Bing. One person pointed out that this is akin to walking into the middle of the road trying to get hit back a car so you can file a personal injury lawsuit. Unclean Hands basically dictates that you cannot come into court as a Plaintiff when your hands are “unclean” as a matter of general equity.
- Another concept that this makes me think about as a copyright attorney is whether or not this is COPYRIGHT MISUSE? Again, not to say these defenses will work, but at the very least should be considered depending upon the facts of the case.
- Don't forget to look to make sure there is no statute of limitations issues (generally speaking three years in copyright infringement matters)
- What amount should you settle for? Well, that can be the tough part. Watch this video I did. It may not apply 100 percent but may give you some things to think about. Generally, these collection lawyers want to get every last penny they think they can get. In the past, I have pointed out “you sure your client wants to be known as a bully” and sometimes that will help in what I call the “law of the press.”
- If you absolutely have no money to afford a legal defense, one other option is that parties to a dispute are allowed to talk directly to each other. This may or may not help, but this is an option and perhaps if you had a good explanation the photographer or designer may “cut you some slack” or even possibly dismiss the matter. However, I also say this is a risky approach because you would in many cases end up admitting to the infringement (even if you immediately took the picture down off your website), and/or it could be easily misconstrued that you are admitting fault or liability when perhaps you were arguing fair use for example.
- One final tip would be to read this blog on GOING ON THE OFFENSIVE by filing for Declaratory Judgment where you feel strongly there is not a valid infringement of copyright (ex. fair use does not equal infringement).
Contact an Online Photo Infringement Law Firm
So that is a look at one law firm's version of copyright infringement collection.
DEFENDANTS: We can help you evaluate your options if you received a demand letter from a copyright holder or a law firm representing them. We can evaluate potential defenses such as fair use, unclean hands, copyright misuse, (and see if the photo was actually copyrighted – if not the damages may be significantly reduced) and/or help you negotiate a fair and reasonable settlement and ensure that the case is properly disposed of. Call us at (877) 276-5084.
We offer low flat rate fees for most (non-litigation) infringement matters. We offer a 1/2 hour case review and phone consultation for clients receiving a legal demand letter for $450 (we accept credit cards).
RIGHTS HOLDERS: If you are involved in IP arbitration, mediation, or litigation, we can also help and have extensive federal court experience. We have appeared in over 60 federal cases. We can represent Plaintiffs and rights holders and we offer contingency-based photo infringement services in many cases.
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