One Person's Unsettling Experience With A $20k Higbee Copyright Troll Demand Letter

from the calling-out-the-trolls dept

Last week we wrote about the questionable practices of copyright troll Mathew Higbee, based on thorough research from lawyer Paul Levy. As we noted in the post, we’ve heard from a few recipients of Higbee’s questionable letters, and one has agreed to share his experience. This will be a two part series, with the first part, below, written by the recipient of the threat, web developer Daniel Quinn, and tomorrow, more information from the perspective of his lawyer, Carolyn Homer. Update: Here is the second post.

Hi. My name’s Daniel Quinn. Off the bat, there’s a few things you should know about me:

  1. I’m a self-taught web designer.
  2. I have a background in English literature, creative writing, and publishing.
  3. I’m a huge scifi nerd.

I probably value those three things from most important to least important in reverse order.

One of my favorite fandoms of all time is The X-Files. As a kid, I wanted to grow up to be as dreamy and mysterious as Fox Mulder himself. Of course I now have a lifelong affection for conspiracy theories, cerebral redheads, and aliens. I just finished writing a science fiction novel that features all three elements.

Back when dial-up modems were a thing, I loved The X-Files so much I used to list my physical address on social media as Fox Mulder’s fictional apartment in The X-Files: 2360 Hegal Place Apt #42 in Alexandria, VA 23242. To this day, my physical address on Facebook is listed as Mulder’s address—something I do intentionally to confuse Facebook’s greedy algorithm. (This will all become relevant later.)

I never expected that the show which brought me so much happiness in my youth would become responsible for grief and terror at age thirty-four.

In 2016, Fox released The X-Files season 10 and broke my heart with its retconning of the series’ central mystery. I wrote a fraught review about it on my personal blog, as I am wont to do whenever a fandom lets me down. Writing stuffy, literary critiques of pop culture on my blog, usually about science fiction movies or TV shows (e.g., “A Feminist Reading of Grindhouse” or “Mr. Robot is Cyberpunk for the Masses”), is about the only hobby I have time for outside of freelancing.

In both my web design work and scifi review-writing hobby, I’m rather meticulous about my IP research. I always source photography that accompanies my articles via Creative Commons-licensed or license-free photography on Flickr. I even check the “commercial use allowed” option just to be safe. That’s thanks to interesting coursework on intellectual property I took during my Masters in Writing & Publishing from Emerson College. There I learned about the copyleft movement. Larry Lessig is someone I admire. In fact, all of my website’s original content, including my blog posts, are licensed Creative Commons because I believe in its mission. As a web developer I work frequently with open source software. My very own WordPress boilerplate—for which my livelihood depends on as a web developer—is licensed open source.

This is all to say I’m not some lazy pirate who copy-pastes from Google Image Search to source photography. As a creative, I care about copyright. And as a freelance web designer, I’m managing intellectual rights all the time, whether it’s by signing over the copyright to websites that I create as a work-for-hire contractor, or by selecting stock assets for my clients to buy, be that photography or software.

This winter I got a phone call out of the blue from one “Tuesday Maudlin” at the law firm Higbee & Associates claiming I was infringing on the copyright of a photographer Michael Grecco. I was more mortified than I was scared. How could that even be possible, given that I’ve been so careful to attribute everything I use? The photo in question was a thumbnail on my X-Files Season 10 review, a picture of Mulder and Scully I’d found listed as “Creative Commons” on Flickr over two years ago.

Over the phone, I explained to Tuesday how I source photos, and asked her whether this image had been mistakenly uploaded or mislabeled. Tuesday said her client doesn’t provide Creative Commons licenses. While I had her on the phone, I clicked madly through the Flickr archive to see if I could still find the photo there … but of course, two years on the web is an eternity, and I couldn’t find that particular one. When I offered to take the photo down right then and there (which I did), Tuesday said her client “also wants to recover the license fee that should have been paid prior to the usage.” I asked her what his license fee might be for this image, thinking that I could pay Mr. Grecco a few hundred bucks for my (albeit accidental!) usage. After all, he seemed like a legit professional, and as a freelancer myself, I have respect for honest contract work.

Tuesday said that Grecco’s license fee was $20,000.

Honestly, my heart leapt into my throat. I freaked out. Winter is my slow season. It was the middle of December, the month I take off to recoup for new business in the new year. Like most working Americans, I didn’t have $20k lying around. I had major end-of-year expenses coming up. I didn’t have any assets, except my millennial-sized retirement fund. Would I have to dip into that in order to pay what seemed like an absolutely crazy license fee?

I mean, I’ve bought stock from Getty in the past for clients. Getty can get pretty expensive, but honestly I’d never even seen a license for a single image that was more than $500. And that’s for 8,000+ pixel photos with global usage rights and unlimited print runs / digital impressions. I have some experience working in the publishing industry: $20k is what a midlist author would earn as an advance on an entire book, or what a photographer might earn for the exclusive rights to a photo that might appear on the cover of Rolling Stone, which has a paid circulation of like 1.5 million! My usage amounted to a single, 558-by-263 pixel-wide image that, according to my own analytics, reached a total worldwide audience of 98 visitors in the two years it’s been published on my personal blog. How the heck was I going to prove to Tuesday Maudlin that I innocently got the X-Files image from Flickr two years ago? And (just my luck), I couldn’t find the damned thing in Flickr’s ever changing archive.

I also had a lingering suspicion in my head that Tuesday might not be a real person. Who has a name like Tuesday Maudlin? Her name sounds like a character from a Wes Anderson movie. Or maybe Higbee & Associates might not be a real law firm. While she was on the phone, I Googled “Higbee and Associates.” What I found was not comforting. Today, when I do the same search I get two links from the website of the supposed “National Law Firm,” and the third from a website called ExtortionLetter.info. The fourth is from /r/legaladvice with the title “Copyright Image: $1,000 payable to firm?” The fifth, from Techdirt with the excerpt “Back in June I was begrudged with a large piece of mail that I soon found out was from a National Law Firm, known as Higbee & Associates.” (I expect Paul Levy’s and Mike Masnick’s posts from last week will soon be indexed and rise up in the rankings.) Something seemed fishy.

Tuesday then told me she’d emailed me several times about the claim. Now, I’m not one to overlook emails. I practice Inbox Zero every day. As a web designer, every missed email is a potential missed lead. It wasn’t until I was off the phone that I found the Higbee emails: they had all been captured by my junk filter in Postbox. At a glance, I could see why my junk filter classified them as spam: the message headers were not DMARC compliant. Two of the three emails lacked SPF authentication and all of them lacked DKIM signatures. Tuesday’s email in particular was the spammiest looking, given the all-caps subject line “517865 / IMPORTANT LEGAL MATTER” and the scrunched together paragraphs of text with mismatched fonts. The original email links to an “online portal” and provides login credentials—all things which were, in my opinion as someone who’s created HTML emails for clients in the past, tell-tale signs of a phishing attack.

Honestly, even if I had seen them prior to the phone call, I probably would’ve dismissed them as elements of an automated scam. But Tuesday also claimed she’d mailed a physical letter to me; the earliest-dated email that I recovered from my junk folder also mentioned a physical letter. Where to, I asked? After all, in the past two years, I had moved to three different apartments, so I wouldn’t have been surprised if a letter wasn’t forwarded.

She gave an address: 2360 Hegal Place Apt #42 in Alexandria, VA 23242.

I was too sick to laugh. Higbee & Associates must have found Fox Mulder’s fictional address from my Facebook, and mailed it there. I told her to mail me the paperwork to my actual address, and we could go from there.

I told my wife the news when she got home. I felt helpless and ashamed. How could I, of all people, make this sort of mistake? My wife reassured me that whatever happened, we’d survive. I became less optimistic the more I learned about Higbee & Associates. I worked up the courage to download the Higbee emails into a virtual machine so I could safely open the files they’d attached to the emails. Sure enough, there was the supposedly infringing X-Files photo staring back at me, and in Higbee’s letter, the scary demand:

“If forced to go to court, my client will ask for the maximum relief possible, which may include statutory damages under 17 U.S.C. §504 for up to $150,000 for intentional infringement or $30,000 for unintentional infringement. My client would also ask the court to have you pay court costs and attorneys fees. Copyright lawsuits can result in judgments, wage garnishments and liens on property. In some instances, the business owner can be held individually liable.”

The copyleft movement suddenly felt like a trap. What if other images I’d acquired from the Creative Commons were misattributed like this one? I took down ALL the posts on my blog and stayed up all night, going back to see which ones I could find again on Flickr, making a log of the attributions and screenshotting the links. If I had any doubt at all, I replaced images with better-sourced ones and live links. I couldn’t afford to be ruined financially for any fandom, let alone my favorite.

Higbee & Associates brags about their high success rate and the money they’re generating for their clients. That scares me. If Higbee & Associates is in fact using automated technology to search for infringements and then issuing these demands en masse, most people will not have the resources at their disposal to defend themselves or pay the mind-boggling settlements. How many thousands of other people are in a position similar to mine, right now? Unable to afford an exorbitant fee, believing the threat is real, and terrified to lose their home over a single photo?

One of wife’s close friends suggested I get in touch with an attorney specializing in IP law. She said the demand letter looked suspect, but she was in no position to advise because her area of expertise wasn’t in intellectual property rights. My wife reached out to a women’s networking group for referrals—which led to my meeting Carolyn Homer.

Needless to say, I am so glad I did. Not only is Carolyn a nerd like me, but she lives and breathes IP. The depth of her generosity in taking on my case was matched only by her confidence and knowledge of copyright law. I started to breathe again. There were serious problems with Higbee’s demand. I could contest them, not roll over and cough up $20k.

The second post, by Carolyn Homer is now available here.

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Comments on “One Person's Unsettling Experience With A $20k Higbee Copyright Troll Demand Letter”

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79 Comments
Mason Wheeler (profile) says:

I took down ALL the posts on my blog and stayed up all night, going back to see which ones I could find again on Flickr, making a log of the attributions and screenshotting the links. If I had any doubt at all, I replaced images with better-sourced ones and live links.

This is the one part I don’t get.

By this point, you had done enough research to understand that you’re dealing with a sketchy trolling and extortion operation acting in bad faith. When you found the stuff shared as Creative Commons, you’re good at that point. The burden of proof is on the accuser, not the accused. You don’t have to demonstrate that you weren’t doing anything wrong; they have to prove that you were. So why put so much effort and stress into this?

How many thousands of other people are in a position similar to mine, right now? Unable to afford an exorbitant fee, believing the threat is real, and terrified to lose their home over a single photo?

Yeah, this is confusing. By this point, that "position similar to mine" is not the position you were in, as you had enough information to no longer believe the threat is real. Two pages before this, you did some research and found out who it was you were dealing with.

Maybe it’s just me, but if I had some scammer try and come after me, and I became aware that it was a scam, I’d be proverbially licking my lips as I prepared to tear their entire world apart in court.

Gary (profile) says:

Re: Re:

This guy was worried because there is no intrinsic difference between an infringing and non-infringing image. He couldn’t prove that it was CC based on his word – the lawyers could easily drag him into court based on their claim of copyright.
Of course none of this makes sense. You can’t claim "ownership" on a picture that has been copied and reused millions of times. This process just highlights the absurdity of current copyright law.

TFG says:

Re: Re: Re:3 Re:

What happened to Daniel is a common result of these official sounding things. An understandable emotional response, along with fear, that results in giving too much credit to the claims of the other party.

The burden of proof is on the accuser, yes, but the fear keeps telling you that they already have that proof. Without knowledge and confidence to realize that they have nothing instead, the assumption becomes that if it goes to court, you’ll lose.

It takes an infusion of confidence, usually provided a second party with knowledge and enough of an outside stance to not be subject to the emotional toll, to come to that realization.

The scams like this work because they rely on people going with that emotional gut response – far too often, it works, because people don’t know enough to have certainty, and/or are too scared of the process itself and the prospect of financial ruination even if they win to go ahead and fight it.

It’s sickening, but it’s reality.

James Burkhardt (profile) says:

Re: Re: Re:3 Re:

In copyright, (and in similar circumstances much of contract law) they don’t need to prove that it was never licenced under a CC licence (in fact, you can’t). They claim they have the copyright. Show proof. They state they did not licence this work. They have established their claim. They can not prove the negative (it was never licenced under creative commons). As the rights holder they assert their rights, and by showing he was using it and claiming a lack of legal right to do so they establish their claim. It is then burden of the defendant to show that he had the legal right to use it. the lack of proof of a CC licence serves to show that he had no licence in this imagery.

I understand your frustration that if taken to court this man could be on the hook for statutory damages. But to misrepresent the law is harmful. It seems, like many of your arguments, you have a basic, broad understanding of the standards of proof, but don’t understand or refuse to understand any of the nuance.

Its like that meme about proving a package never arrived. You can’t. Same situation here. And american courts and law do not like forcing a litigant to prove a negative. So by establishing the legal rights to an image, and asserting that no contract exists, they have done all they can to establish a lack of licencing contract, and the burden shifts to the defense. If one exists, the defendant whips out the contract. It then goes back onto the plaintiff to prove the contract is illegitimate.

Any other situation would result in copyright becoming a limp noodle, because the plaintiff must overcome proving they never licenced a work, something that can not be accomplished.

The claim can be made that by using the image, the defendant is claiming the right to use the image, and therefore holds the burden of proof to prove that claim when a claim from the copyright owner is made that the defendant does not have the right. The plaintiff is merely contesting the claim made by the defendant, and only needs reach the bar that the plaintiff has the authoritative standing to do so.

James Burkhardt (profile) says:

Re: Re: Re:4 Re:

Now it is a sketchy troll operation, but if they have a legitimate copyright, his fear would be justified. And even if they don’t, it can cost money to get to the point that the shakedown attempt ends. Taking down his content until he could cover his ass with his other CC content to potentially reduce future claims to a letter in which he shows his content was presented with a licence to deflect trolls is a smart move. I don’t understand why you seem to think that ‘its a sketchy troll’ somehow means "this threat can’t cost lots of money and potentially ruin this person"

Scary Devil Monastery (profile) says:

Re: Re: Re:3 Re:

"That’s not proof that it was never licensed under Creative Commons. (Especially coming from a notorious troll and extortionist!)"

It’s at this point the case of presumed innocence turns into one of presumed guilt. They have a copyrighted photo. You now need to prove that photo was, at one point, under a CC license.

Either way the OP is one bad judge away from owing disproportionate amounts of money, and no matter how that goes it’s pretty clear he’s already lost a lot in form f effort and mental health in defending himself from an unwarranted accusation.

This is how the chilling effect works. And why being "legal" online is actually so hard in the background of the existence of copyright law that you are better off to act as if your legal and open acts were continually persecuted by a horde of malignant lawyers.

Mike Masnick (profile) says:

Re: Re: Re: Re:

That’s my point: he doesn’t have to. Burden of proof is on the accuser. They have to prove it was an unlicensed photo.

That’s incorrect. The burden on the plaintiff is to show they have a legitimate copyright in the photo (and on that, stay tuned for tomorrow’s post… ). Then they need to show it was infringed. Then the burden would shift and Daniel would have to show it was CC licensed… It is simply incorrect to state that the copyright holder has to prove it was "unlicensed." The proof on the licensing side would fall on the defendant.

Anonymous Coward says:

Re: Re: Re:2 Re:

The burden on the plaintiff is to show they have a legitimate copyright in the photo … then they need to show it was infringed.

Isn’t that the point that was made, though? "Infringed" doesn’t just mean "used;" it means "used illicitly." To show that it was infringed, don’t they necessarily have to show that no licence existed? Otherwise the entire concept of the burden of proof becomes meaningless.

Scary Devil Monastery (profile) says:

Re: Re: Re:3 Re:

"To show that it was infringed, don’t they necessarily have to show that no licence existed? "

No. Welcome to of the more direct lunacies of copyright law.

The plaintiff has shown a work which is copyrighted.
The plaintiff has shown this work has been used.

Unless the defendant can show a license to use said copyrighted work the default conclusion will be that the defendant is guilty of infringement.

And this is a problem since a "CC" label rarely comes with a signed certificate, and the person in the OP was naíve enough to believe that simply acting in good faith was enough to fend off legislation expressly built by a horde of protectionist trolls.

Scary Devil Monastery (profile) says:

Re: Re: Re:2 Re:

"The Burden of paying a shitload of legal fees to fight a lawsuit in court, on the other hand, is on the defendant until a court says otherwise."

Also, in the US civil litigation doesn’t give very many f*cks at all about "burden of proof" unless the abusive loophole exploitation is blatant enough for a judge to simply toss the case out of court unheard.

JMT (profile) says:

Re: Re:

"The burden of proof is on the accuser, not the accused. You don’t have to demonstrate that you weren’t doing anything wrong; they have to prove that you were."

Yeah, in court, as you rack up thousands in legal fees.

"Maybe it’s just me, but if I had some scammer try and come after me, and I became aware that it was a scam, I’d be proverbially licking my lips as I prepared to tear their entire world apart in court."

Well, I’m really impressed that you’re ostensibly rich enough to be able to have that derring-do attitude to legal combat, but also disappointed you’re apparently so out of touch with how most people live that you don’t realise how financially damaging it could be. Or you’re just an internet big-talker.

Scary Devil Monastery (profile) says:

Re: Re: Re:

"The "Geiger" standard of intentionally causing the injury (rather than causing the injury with an intentional act) must be met for a debt not to be discharged."

Not in practice, no.

All thanks to the DMCA and assorted other copyright-specific statutes the criteria for meeting the "good faith" requirement is far, FAR higher than it is in real life.

All the copyright troll needs to do is to spin it as the OP pulling off an act of willful negligence and statutory damages may apply.

Scary Devil Monastery (profile) says:

Re: Re:

" The burden of proof is on the accuser, not the accused. You don’t have to demonstrate that you weren’t doing anything wrong; they have to prove that you were. So why put so much effort and stress into this?"

Because by copyright law the practice is rather the reverse; What you have is a claimant with a copyright and a case where said copyrighted data appeared on a site, placed there by you.

After that it’s essentially just the summary word of a judge away from you having to pay unrealistic and disproportinate amounts of money simply because you can’t prove you acted in good faith, nor will much of copyright law precedence even care about good faith.

On that background anyone – absolutely anyone intending to portray any sort of work online is well served to first of all ensure that work, legitimate or not, can not be traced to you.

Where "copyright" is concerned, the legitimate users are the ones who get hit. The low-hanging fruit who naívely believe that just because they act legally and in good faith they are safe from copyright trolls.

This is part of why I predict that the future online will be one where the deep net will become the default.

Anonymous Coward says:

Re: Re: Narrator's voice [was ]

You realize that is part of tomorrow’s article, right?

Article could have benefited from a second narrative blurb from Mike — placed just after Daniel Quinn’s main body — then with just a bit of clear white space plainly separating it before the supporting embedded document.

Comments have always been interesting to me ’cause you have to fit everything on a postcard. You get no more than half-a-screenful in a comment.

But anywhere else, never forget: a) intro b) body c) conclusion.

In a two-part series, replace c) conclusion with a transition promising tomorrow’s installment.

Nate P Cilver says:

copyrightMinimalists

These attempts to reduce the enforcement of copyright is just a racist, misogynist, and homophobic alt-right dog whistle. This is really just an attempt to not pay the people, who are primarily minorities such as women, who create beautiful art. You slavishly defend this pirate who is stealing food out of the mouths of these creatives.

It is your attitude towards copyright that has allowed this hate to grow to the point where Justin Smollett cannot leave his house without two racists in red hats trying to lynch him. This is what empowered that racist Covington student to charge the brave Native American and get in his face while screaming racists taunts.

Rico R. (profile) says:

Re: copyrightMinimalists

I’m a progressive liberal that’s all for common-sense copyright reform (if not abolishing copyright altogether). Considering you likely believe the Di$ney view on intellectual property, keep in mind that Walt Disney built his company using a once robust and fairly-recent public domain, had rumored ties to anti-semitism, and his family has lobbied to extend copyright so many times just to keep the first Mickey Mouse cartoon (which itself was a ripoff of Steamboat Bill) outside of the public domain. Calling this anti-copyright movement a part of the “alt-right” is so low a blow that it makes you and the rest of the trolls more desparate than our treasonist President. And considering Smollett is likely to be found guilty of faking his attack, there is more to the Covington story than we were first led to believe, and the general fact that copying is not theft, that should be enough to discredit you altogether. Get your facts straight and make a logical argument, or get a new hobby.

That Anonymous Coward (profile) says:

HI DANIEL!!!!!!!!!
Welcome to the festivities of extortion with a dead sheepskin.

I am looking forward to your lawyers half of the article, because I dearly love seeing trolls panic when faced with people able to sense the bullshit and shove it back on them.

I know it felt like your life was flashing before your eyes, and as myself and others have had to explain thousands of time, stop, take a breath. They want to terrified & reacting without thinking. If I had read you posting about this asking a question if it was legit, even with no knowledge of this particular troll I would have pointed out 1 very simple fact.

They claim to be pulling tens of thousands of dollars for clients & are completely unable to google or do the most basic due dilegance on where they were sending their ‘threat’. Always a hallmark of a quality firm, do no research on who you claim cost your client millions of dollars & send the demand letter to the first address you find… because even the shitty background information websites that pop up on google cut into their bottom line.

Completely from left field, if you were to still have access to the image one might suggest the multiple reverse image search tools available online where you might be able to locate the original source where it was credited as CC… but then I like puzzles.

Anonymous Coward says:

It’s not that difficult to beat them to the punch and sue for declaratory relief, or to get a case dismissed. This sounds like implied-license, i.e., finding it on the internet as you did puts the burden on them to revoke that license (same logic the search engines use with robots.txt). They also didn’t note that minimum statutory damages are $200, and that attorney fees are rarely awarded.

Anyone who uses the work of others should learn how to defend that use, since it can provoke stuff like this. The last thing they want to do is waste attorney time and resources on a losing court case, and a threat like that puts them in position to lose.

Anonymous Coward says:

The disturbing part of this, for me, is the fact that Flickr does not show and may not even retain the license history for images. An image with a CC license (which is supposed to be irrevocable) can later be set to have a more restrictive license, or the image can just be deleted, leaving all the users who were granted the CC license with no way to prove that there ever was a CC license.

s7 says:

Re: Re:

On top of that, Flickr has recently gone from unlimited uploads to only 1000 unless you purchase a "PRO" account. The new owners SmugMug will on March 12th believe begin deleting images over your 1000 image limit beginning with the oldest. Creative Commons or not. They have however set up agreements with Govt., Libraries, Museums, etc.. to keep hosting their CC images over the 1000 image limit.

Soon LOTS of images will be gone from Flickr, and links to them for attribution, etc, will be dead.

This doesn’t help someone like me with a little over 1000 (CC) images and adding more all the time, and another 1000 or so Non-(CC) images. So I pay for the Pro account just so my images will be available for use.

Anonymous Coward says:

I’m curious about a couple of things on the "Registration Application" –

First is that it shows Grecco’s birth year as 1958. His Wiki says 1968. Probably not much of a thing, but interesting.

Second is that the photograph is listed as NOT being a work made for hire. That just seems a bit odd and gives the impression that the studio did not hire Grecco to do the shoot for the studio’s publicity purposes. Maybe I misunderstand "work for hire", but I find it highly unlikely that David and Gillian wandered into the guy’s studio and asked him to take photos of them as Mulder and Scully.

Looking forward to the next installment…

Anonymous Coward says:

Re: Re:

That "work for hire" thing is the first thing that stood out to me… copyright for the photo should have been transferred to Fox. When I heard they were representing an individual regarding a publicly available image from TV promotional material, alarm bells went off.

But even then: if I had received the nastygram, I’d freak out too, even though I’m pretty certain the copyright claim wouldn’t hold up. I’d freak out because, with a lawyer driving this suit, they can afford to string it through the courts and then drop it, whereas I cannot afford the stress, time, or lawyer to fight it.

At least it reinforces my decision to list the North Pole as my address on all the web-related stuff; they’re less likely to attempt an international lawsuit.

Maybe I should switch to the South Pole though; they might still file suit via Canada or Russia.

Ehud Gavron (profile) says:

Re: Due Diligence - troll

No. Nothing of the sort, and thanks for bringing another copyright maximalist attitude to the show.

Anytime someone says "before you make a copy of anything you should ALWAYS…" they have an ax to grind.

Go grind your ax. When you’re done you’re not going to be chopping up the Copyright laws or the free speech laws, or the right to fair use laws of this country.

Ehud

Anonymous Coward says:

Re: Re: Re: Due Diligence

You might want to ask one of the many artists who have been sued for infringement over their own work about that.

That has absolutely nothing to do with whether they need to consult a lawyer before copying their own work. The answer is: they don’t. It’s their work they can do with it as they see fit. Unless they sold the rights to some legacy label or studio, in which case it’s not technically their work anymore. They may have created it, but they no longer own it.

This is instead a perfect example of copyright protections gone horribly wrong and legacy labels and studios abusing the system for their own greed. Is that what you are defending, the ability for anyone to sue an artist because said artist copied their own work?

You were saying something about a signature, Moron?

That Anonymous Coward (profile) says:

Re: Due Diligence

Copyright holders first…
We own this bird song!
We own this 3 minutes of silence!
We own this white noise!
We own this pink noise!

They don’t own them, but they can get your account nuked from orbit b/c they said so. They call it a mistake all the time… even when they engage in commercial copyright infringement because oppsie we forgot to pay the artists who’s works we just made millions off of…

They have made IP so dangerous & toxic that its no longer shocking to see someone claiming the rights to your video b/c they own this single frame of black.

Rekrul says:

What we need is a change to copyright law that says non-commercial use of photos, short sound clips and short movie clips as well as excerpts of text are completely legal I know it will never happen, but I can dream.

Also, I’ve seen that image of Mulder and Scully floating around the net since at least the late 90s. It’s been posted to newsgroups, used on web sites, etc.

Anonymous Coward says:

Re: Re:

We (almost, mostly) do have that. It’s called "fair use." Unfortunately, it’s very poorly understood and commonly believed to be far weaker than the law says it is–including by a few judges–and the Creative Commons folks have only contributed to making it worse by spreading around misinformation about how it works.

TFG says:

Re: Re: Re: Re:

What I’d like to see is something on the books that lays out the fair use doctrine not as a defense in court but as an affirmative right. I’ve little in the way of law training, so I’m not about to try and write it out, but I would love something that can be used to slap copyright abusers across the face from frame 1.

Anonymous Coward says:

Re: Re: Re:2 Fair Use [was ]

What I’d like to see is something on the books that lays out the fair use doctrine …

You’re unhappy with 17 USC § 107Limitations on exclusive rights: Fair use” ?

 

I’ve little in the way of law training

Sometimes when we discuss modern U.S. copyright around here — in an introductory fashion — we expect that people will wind up reading and familiarizing themselves with a reasonable chunk of Title 17. If you haven’t ever done so before, you might also want to immediately skim through § 101, just so you get an idea what’s in it.

Scary Devil Monastery (profile) says:

Re: Re: Re:5 Fair Use [was ]

"We need a copyright registry. No registration then no copyright protections, fair to use. Simple"

Except that said registry will be ruinously expensive and require thousands of full-time employees to properly maintain even if every copyright troll on the planet didn’t see it as a priority target.

And it still wouldn’t be usable for DMCA purposes unless it bettered Google’s contentid by orders of magnitude in both scale and accuracy, which is unlikely.

The main issue here is that people keep insisting that there is a good way to prohibit the transfer and copying of selected information without a system in place which makes mandatory registration and analysis of ALL information transferred.

The technology required to back up your demand does not work at that scale. Nor, frankly speaking, do we want to live in a world where it does and is implemented.

Scary Devil Monastery (profile) says:

Re: Re: Re:4 Fair Use [was ]

"So, yes, I’m unhappy with it. It’s great that it’s there, but it’s not strong enough."

Ah, the US Fair Use legislation is strong enough to meet almost any consideration…

…the issue is mainly that thanks to the rest of copyright law anyone claiming "Fair Use" of anything will have to spend a great deal of money and time in court defending that claim against a plaintiff who only has to fill-in-the-blanks on a templated subpoena.

The DMCA made this much, much worse but US copyright law is expressly tailored to enabling the presumptive plaintiff to effortlessly take action – which in practice more or less reverses burden of proof.

In copyright law Russel has to disprove the teapot.

director101 (profile) says:

similar problem

For the last several years, my wife has had a blog where she posts sporadically. I would say she has well south of a 100 readers; it has mainly just been a fun way to communicate with friends.

About a year ago, she posted a short piece about the Kentucky Derby, and included a photo of a horse race she had retrieved from an Internet search. The photo was a pretty generic-looking shot, and it didn’t have any obvious data about the photographer, so she didn’t realize it was copyrighted.

Last spring she began receiving notices from Pic Rights claiming copyright infringement and demanding payment of $625.

After the first letter, the post was removed, and we sent Pic Rights a letter explaining our position that our usage of the image was covered under the Fair Use Section 107 of the Copyright Act.

Several months later, we began getting demand letters from Higbee, insisting on $1563 to "settle the case."

My instinct is to block and ignore them. I know they are making their living by picking on people who don’t have the resources to fight back, and I don’t want to give them a victory.

If anyone out there has dealt with Higbee successfully and has any advice, please let me know.

I Play a Lawyer on TV says:

No registration? No statutory damages

What is missing from this thread? The fact that Higbee, Picrights, and the other trolls KNOW or SHOULD KNOW that the images in question are NOT subject to massive copyright statutory damages at the time they make the massive demands. They know or should know this but obfuscate the fact by saying “damages up to…” etc…

So, let’s say you use an image that would have cost $100 to license, PicRights and Higbee and the other trolls demand $500-1000, even way, way more… guess what? If they do not have in hand a copyright registration, they can’t even file suit, and they can only collect damages from the point of the registration date forward. And if that registration is not filed within the first three months or prior to infringement, all that scary stuff they say they are going to ask for form the courts is a lie. They know or should know this is the case. They sure don’t volunteer that they don’t have registrations, but you can bet most of the time they do not. They scare you into assuming Reuters, the AP, or other big companies surely must have filed copyrights, but they almost never, ever do.

https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2018-19/july-august/debunking-copyright-myths/

“Unlike the first two debunked myths, there is some element of truth to the third myth, that registration with the Copyright Office is not necessary for a work to be eligible for copyright protection. But not registering the copyright in a work would be shortsighted and not recommended for anyone wanting to be able to enforce his or her copyrights.

Under current law, registration with the Copyright Office is not required for works created after January 1, 1978.9 Provided a work is sufficiently creative and falls into certain enumerated categories, an author’s work is protected by federal copyright law as soon as it is “fixed in a tangible medium of expression.”10 Copyright protection does not cover ideas, only the expression of those ideas. In other words, telling one or more friends about your idea for the next great American novel or of a portrait you wish to paint does not guarantee any rights under U.S. copyright law. But as soon as the idea is expressed tangibly—for example, by writing the novel or painting the portrait—the work is protected by copyright law. Then, if someone copies the novel, painting, or other work of authorship without getting permission, the author can assert infringement.

An author cannot bring a lawsuit for copyright infringement, however, without a certificate of registration from the Copyright Office. The U.S. Supreme Court recently affirmed in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC that a registration of copyrights, and not merely an application filed with the Copyright Office, is required in order to file a lawsuit alleging copyright infringement.11 Similarly, unless the application for registration of copyrights is filed with the Copyright Office within three months of first publication of the work or prior to infringement,12 certain valuable remedies are not available to the copyright holder—including the right to receive statutory damages up to $150,000 per work infringed, attorney fees and costs, injunctions, and impounding and disposition of infringing articles.13

Additional benefits to registering copyrights include that registration “made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.”14 Registration also permits the copyright owner to establish a record with U.S. Customs and Border Protection to protect against the importation of infringing copies of a registered work.15

Furthermore, being able to attach a copy of a certificate of registration to a demand or cease and desist letter sent to an alleged infringer of a registered work will give the letter significant weight and increase the likelihood that the infringer will stop the unauthorized use and perhaps even pay some damages to the copyright holder for the unauthorized use—and prevent the need for a costly litigation.

So, while copyright registration is not technically required, paying the current application fee of $35 (for a single work by an individual author who is also the claimant, with an electronic application) or $55 (for all other electronic applications)16 is a bargain to entitle the copyright holder to all of these benefits. Anyone who posts a work on an Internet website without first registering it (see myth #1) risks unauthorized use for which enforcement options would be limited.”

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