Investigating the Higbee & Associates Copyright Trolling Operation

from the exposing-the-trolling dept

Yesterday, we wrote about web developer Daniel Quinn’s harrowing experience receiving a $20,000 payment demand from copyright troll Higbee & Associaties. That post ended with Quinn explaining how he found lawyer Carolyn Homer to represent him. Today, we have a companion post by Homer to talk about her experience investigating and dealing with Higbee, and calling out some of his questionable legal practices.

The moment I saw Higbee’s demand letter to Daniel Quinn I knew I was dealing with a troll. Although I’ve recently joined the #resistance, I spent the first five years of my career defending Silicon Valley companies against mass copyright trolls. Higbee is new to me, but I know this game.

I immediately scanned his demand letter for problems. There were many — Michael Grecco’s power of attorney authorization isn’t even signed! — but I’ll focus on three major ones.

Major Defect # 1: Pricing Unmoored From Market Reality

As Daniel quoted yesterday, Higbee’s November letter threatens litigation, statutory damages up to $150,000 and attorney fees. Supposedly to avoid this terror of litigation, Higbee demands payment of $20,000 within seven days, accompanied by a non-disclosure agreement.

Daniel Quinn did not pay the $20K. So Higbee sent a December follow-up letter which escalates the demand: “[P]lease do not make the mistake of ignoring this. If this matter is litigated, the demand amount will likely quadruple or more, and then you will also likely have to pay attorneys fees.”

Higbee’s message is clear: pay $20,000 now or risk litigation and $80,000—maybe even $150,000—later.

None of those numbers make sense. The market rate for a license to publish most individual photos on the internet ranges between $0-$1000. Similarly in my experience, typical litigation damages for adjudged infringement of individual photos on the internet range between $200-$2000. At this exact moment in time, a photograph from Michael Grecco’s same X-Files photoset is available to license for $1800. And that is itself insanely high—there’s a multitude of other professional X-Files stills available from stock photo agencies Alamy and Getty for $49-$499.

Higbee’s settlement demand price for a single Grecco photo is facially absurd.

Major Defect # 2: Ineligibility for Statutory Damages

Higbee’s utter divorce from market reality aside, the firm might have an arguable basis for demanding $20,000 if Grecco was eligible to recover statutory damages. Due to the insanity of copyright law, $150,000 is the maximum statutory recovery for willful infringement. See 17 U.S.C. § 504(c)(2). Numerous commentators and courts have rejected that top-line figure as insanely out of proportion to the actual damages caused from publication of a single photograph on the internet. Most thoughtful people consider the $200-$750 minimum statutory damages numbers to be more fair. Nevertheless, the max-$150,000 provision exists.

But it was immediately apparent to me that Higbee and Grecco have no claim to either statutory damages or attorneys’ fees. Daniel Quinn posted his X-Files review on May 24, 2016. Higbee’s demand letter includes a Michael Grecco copyright application (not an issued registration) dated January 22, 2017. Absent an issued registration, Grecco is not eligible to even file a lawsuit. See 17 U.S.C. § 411(a).

Moreover, the Grecco application discloses the X-Files image’s first publication date as October 25, 1993. The X-Files image was published 23 years prior to Quinn’s use on his personal blog—which itself occurred 8 months prior to Grecco even bothering to apply to register it. The Copyright Act does not permit recovery of statutory damages or attorneys’ fees for “any infringement of copyright commenced after first publication of the work and before the effective date of its registration.” 17 U.S.C. § 412.

Higbee / Grecco is threatening a lawsuit seeking $80,000 dollars in statutory damages plus attorneys fees for’s use of an unregistered thumbnail image Quinn found on Flickr. It took me two minutes to line up the dates and realize statutory damages did not apply. Higbee couldn’t bother to expend the same two minutes of effort before his firm spent two months chasing Quinn with threatening emails, letters, and phone calls demanding tens of thousands of dollars?

I wrote a letter to Higbee & Associates on January 18, 2019, detailing this and other problems with their demand. I called them out for demanding statutory damages and attorneys fees for which Michael Grecco is plainly ineligible. A couple days later I received a response from one of their copyright associates, Theodore Sell. His email read like he had rush-typed it with his thumbs on his iPhone while stuck in L.A. rush-hour traffic.

Regarding statutory damages, Sell wrote:

Contrary to your claims, our client may still claim both Statutory Damages and Attorneys Fees. The infringement continued past the registration of the copyright of the image, for at least eight months following the registration. Thus, as the courts employ the Discovery Rule in matters of Copyright Law, there was an infringement of the copyright following the registration for at least eight months and both Statutory Damages and Attorney’s Fees are applicable.

I responded:

I note you cited no authority for your off-the-cuff argument about the discovery rule and statutory damages. That is probably because it has been rejected by every circuit to consider it. See generally Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 701 (9th Cir. 2008) (collecting cases). Mr. Grecco is categorically not eligible for either statutory damages or attorneys’ fees, and federal courts regularly dismiss claims legally identical to yours on that basis. See, e.g., McGucken v. Chive Media Grp., LLC, No. 18-CV-01612, 2018 WL 5880751, at *5 (C.D. Cal. Nov. 8, 2018).

Theodore Sell wrote back with a paragraph that doesn’t make any grammatical or logical sense.

As for my citation to Andrews, since the Supreme Court acknowledged that most circuits have applied the Discovery Rule, I find it hard to believe that it was “rejected by every circuit to consider it.” Nevertheless, I admit that I may have misapplied it in this matter; I apologize and will speak of Statutory Damages or Attorneys Fees no further. Our client’s offer to settle remains $20,000[.]

The gall of those sentences irked me. Higbee & Associates just flat-out admitted they are entitled to neither statutory damages nor attorneys fees—and then demanded $20,000 anyway. Once again, for’s non-commercial, innocent use on a personal review blog of a thumbnail image which is the sibling of an image available to license right now for $1800.

Major Defect # 3: Does Michael Grecco Even Own The X-Files Image Rights?

The X-Files launched in 1993. Michael Grecco’s photos are from a 1993 promotional photo shoot. The X-Files series and trademarks are Twentieth Century Fox Film Corporation properties. By default, any “work made for hire” should be Fox property. 17 U.S.C. § 201(b). I would be shocked if Fox commissioned Michael Grecco to take promotional X-Files photos in 1993, but their lawyers failed to ensure that Fox owned the copyrights or exclusive rights.

My suspicions have deepened through research. In poking around the Copyright Office’s public catalog, I discovered multiple Grecco / X-Files copyright registrations of photographs from the same publication day.

This looks and feels odd. Grecco has registered seven separate sets of photographs from the same 1993 X-Files promotional photoshoot. Yet Grecco filed no registrations until 10 years later. The first four registrations expressly name “Fox.” The last two, both in 2017, omit the “Fox” name, but their Copyright Office records note “Transfer: by assignment.”

Meanwhile, Fox itself registered oodles of X-Files publicity photos during the 1990s. For one 1998 piece of merchandise, an X-Files postcard book (Registration # VA0000937875), Fox identified itself as the “employer for hire” of Michael Grecco alongside other X-Files photographers. To this day, other online publications credit Fox for the same set of 1993 Grecco photos.

Adding to my suspicions, in 2008 a federal court in New York indicated that Fox may own the rights. In that case, Michael Grecco sued the Everett Collection, an archive of historical publicity stills for Hollywood productions. Some of the images at issue were publicity stills from the “X-Files/Fox 4” collection listed above. The Court expressed skepticism that Grecco owned the rights at all: it noted that Grecco’s standard arrangement appeared to give all rights to Fox, except for a limited sublicense back to Grecco for his own personal portfolio and marketing. In short: “If Grecco had to ask Fox for consent [before Grecco used Grecco’s own photos], it implies that he granted Fox an exclusive license.” Michael Grecco Photography, Inc. v. Everett Collection, Inc., 589 F. Supp. 2d 375, 384 (S.D.N.Y. 2008).

Even more suspicious? A reverse-Google-image-search revealed that Google has delisted links to the 1993 Michael Grecco X-Files photoset. Google did so in response to a DMCA takedown notice sent by Fox Group Legal on May 30, 2016. That’s one week after Quinn published his review. If Fox owned the exclusive rights as of that week, they should be the ones contesting Quinn’s potential infringement. See 17 U.S.C. § 501(b).

I have so many questions. What does Fox’s contractual paperwork with Michael Grecco say? Did Fox own the rights to Higbee’s challenged X-Files image in May 2016? If so, then Fox should have been the one complaining both about the X-Files image’s presence on both Flickr, where Daniel Quinn found the image designated as “creative commons,” and on

Maybe Fox doesn’t care? 1993 promotional stills are likely near-worthless. I can imagine a corporation making the business decision to let the images percolate as free internet marketing and meme material more than 20 years after the X-Files series premier.

What led Grecco to submit two belated registrations in 2017? Is it possible Grecco submitted registrations for near-identical photos to ones Fox still owns, in order to confuse the public, send threats, and generate revenue? Or at some point, did Grecco buy the copyrights back from Fox? Is it possible the images were in the creative commons, and Grecco / Higbee clawed them back just to flood the internet with exorbitant demands?

I’ve ordered the complete “Grecco / X-Files 5” electronic file from the U.S. Copyright Office to try and unpack this mystery. I’ve also reached out to copyright counsel for Fox, but so far I haven’t heard back.

As for Higbee & Associates? I’ve now asked them, four separate times, for the following information:

  • A copy of the final, issued copyright registration for the X-Files Image, and not just the application.

  • A copy of the deposit materials for that registration, in order to confirm the X-Files Image is encompassed within it.

  • A chain-of-title history of any transfer or licensing agreements surrounding the X-Files Image, particularly with respect to who held any exclusive rights throughout 2016.

  • A copy of any DMCA notice(s) sent on behalf of Mr. Grecco to Flickr regarding the X-Files Image, between 2016-2018.

They’ve refused to answer my questions, responding only that “[we] will not be conducting the pre-litigation discovery you want.”

There’s only so much our ongoing investigation can accomplish short of litigation, discovery, and the power to issue third-party subpoenas to Fox and Yahoo/Flickr. But at the moment, based only on the information I have, I’m severely concerned that Higbee & Associates is failing to exercise due diligence and conduct reasonable investigations before issuing its boilerplate demand letters.

Theodore Sell’s belated admission that they cannot seek statutory damages and attorneys fees supports their lack of diligence; so does Mathew Higbee’s contention last Thursday that “We never intentionally pursue private non-commercial infringements.” Daniel Quinn runs a private, non-commercial, hobbyist scifi review blog; Higbee & Associates has been chasing him with threats of litigation and demands for $20,000 – $80,000 in damages and attorneys fees for months.

I thus echo Paul Levy’s warning: Higbee & Associates appears to be threatening claims unwarranted by either the facts or the law. This is copyright trolling.

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Companies: fox, higbee and associates

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Comments on “Investigating the Higbee & Associates Copyright Trolling Operation”

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Anonymous Coward says:

I’m severely concerned that Higbee & Associates is failing to exercise due diligence and conduct reasonable investigations before issuing its boilerplate demand letters.

Of course they aren’t. It’s very likely that an actual person never even looked at the image in question before the demand letter was sent. I say that based on several years of handling DMCA notices for a website hosting company.

wshuff (profile) says:

Re: Re:

If Higbee does file a lawsuit, do you have grounds for a Rule 11 motion or whatever is comparable in the jurisdiction where they file? It seems that you’ve put them on notice of severe problems with plaintiff’s legal theories. If they plow ahead and pursue them, then clearly they haven’t undertaken the reasonable investigation of law and facts required.

That One Guy (profile) says:

Re: Re:

If they follow SOP of similar parasites I’d expect that now that they’ve run into someone who can and will fight back they’ll tuck tail and run, in the hopes that their next mark will be too scared to fight back and will just pay up the ‘generous settlement offer’ they present post-threats.

Going to court is the last thing scum like this want, as it presents the possibility of a legal record of both their claims and the evidence(or lack thereof) supporting them, not to mention actually costing them money, rather than the cost being nothing more than having someone send an email and/or make a call/threat.

Mason Wheeler (profile) says:

Re: Re:

Not exactly. What it says is that you have three months of "grace period" after publication to register as an exception to the rule cited above that:

The Copyright Act does not permit recovery of statutory damages or attorneys’ fees for “any infringement of copyright commenced after first publication of the work and before the effective date of its registration.”

In other words, if I publish something today, and tomorrow Bob infringes on it before I’ve had time to register, I still have three months to register and be able to bust him for it. But if he waits three months and then infringes, and I still haven’t registered by that point, then I can’t seek damages. But if I register after three months and then Bob infringes on my work, I still have a valid case.

That Anonymous Coward (profile) says:

If my avatar could move, you would be seeing my shocked face.
Lawyers seeking a payday by fudging the facts?!?!
Say it isn’t so!


Better lawyers than this idiot have tried this scam & failed, but this idiot is sure he can succeed where others have failed.
insert my standard rant about the system failing to police itself
The downside to even attempting this scam isn’t even a consideration, the outcomes far to often are less than a slap on the wrist & telling them to do it in a different jurisdiction.

Drive them into the ground, put a stake through the heart, & salt the earth. None of the powers that be that should be aware of & stopping this continuing criminal enterprise have done anything to frighten those who would abuse the system in this way so large swaths of scorched earth might be the hint that something is wrong here.

Tanner Andrews (profile) says:

Declaratory Judgment

outcomes far to[o] often are less than a slap on the wrist

Often a good idea: you impose costs on the troll and get a public record that his claims are no good. Also, you get to pick the venue.

The problems, however, are standard. You have to find and hire a lawyer, which is expensive. Litigation itself is expensive, with court costs and discovery costs designed to astound the unaware. Litigation takes a long time, and the appeals may drag it out longer.

Also, some judges are not as enthusiastic about fees for someone defeating a bogus claim as they are about fees for claimants.

So, yes, it would be nice to see the troll stomped. But no one wants to pay for it, and the revenues from a free blog are unlikely to feed the lawyers.

Glenn Reiser says:

Higbee Trolls

These trolls tried extorting me for $150,000 for using a "license free" photograph without providing attribution. They sent me a draft complaint signed by Higbee and captioned uder the federal district court in my state, however no one in Higbee’s firm was licensed to practice law in my state. I responded by sending Higbee a draft ethics complaint that I was prepared to file against him with the California Bar for engaging in the unauthorized practice of law. He immediately backed off, and I never heard from his firm again.

IRoque (profile) says:

Re: Higbee Trolls

Would you kindly share your draft ethics complain for engaging in the unauthorized practice of law? I also received a draft lawsuit from Higbee, and I do not think they are licensed to practice in the state where I live. Besides they can’t claim statutory damages in this case either, but kept threatening me. I appreciate it.

Darren (profile) says:

Please Please Help

I am hoping for some guidance.

I received one of these Higbee demand letters. Originally from Alisa Smith to handle the matter without the litigation team to save me money and then from an attorney, Ted Sell ,when I pushed back.

I used to write a blog for single dads that focused on staying fit and healthy. I never profited from it. I used a service to host the blog that included free recipe posts under a separate tab. I never looked at it or thought about it. Apparently, one of the images they used for a baked yam recipe is owned by Adlife, a client of Higbee. The image was removed by the service I used before I ever got the demand letter. They confirmed it was there.

When I got the demand letter, I requested proof of copyright. Mr. Sell sent me the copyright. It is for 250 images published between Jan and Dec 1995. The copyright is dated March 2017, 22 years later. The recipe was posted in December 2017. He says that makes me liable for statutory damages of up to $150,000 plus attorney fees.

I know hiring an attorney will be expensive. I can’t see how I can be liable for tens of thousands of dollars for something I had no knowledge was posted, didn’t host and was removed before the demand letter ever arrived. The service has not been helpful and
is obviously looking to cover itself.

Even if I posted the image, I can find similar stock photos for $12, how can I be liable for $100,000 or more? Doesn’t fair market value matter?

Mr. Sell is now threatening to file suit against me and that I am facing severe consequences. I would really appreciate any guidance. This makes me nervous.

bap9210 (profile) says:

Re: Please Please Help

After you pushed back to the demands from Alisa Smith, how long was it before you heard from the attorney, Ted Sell? I too am in a similar position and just sent my letter back to the "claims rep". I am wondering how long I might have to talk to a lawyer and do some research on their claim before the attorney comes calling.

Vicki Graff (profile) says:

Thomas Sell

We are a Not-For-Profit 501c3 organization and keep getting harassed by them about a picture we used that was a standard picture from the website company we used for our website. This picture was in their images folder and we used it but according to Sell it was copyright infringement and they have been demanding money for it. It was on our site for maybe 10 days before I changed all our pictures to pictures of the dogs, puppies, cats and kittens we have adopted out. I don’t know how to fix this as we certainly don’t have money for this bull. He’s really starting to be obnoxious about the whole issue and its ridiculous.

LeeLee (profile) says:

Has anyone experienced getting falsely accused by them?

I have a beauty blog and supposedly someone had a similar blog name as mine, but the difference was that THE is in my blog’s name and THIS is in this other persons’ blog’s name. I say supposedly since I’m unable to access the site that they think is mine for some reason.

On September 17th, Higbee & Associates insisted that I posted a flood picture that belonged to Agence France-Presse and demanded $948. I expressed that the image wasn’t mine and pointed out the differences with names as well as well as the platforms that they’re hosted on (judging from the image link they sent, this person posted the infringing image on WordPress). It also wouldn’t make sense to post flood pictures on a BEAUTY blog. I didn’t get any kind of response.

Today, their Claim Resolution Specialist (Eugene McCoy) sends me an email, hoping to resolve the matter amicably without having to go to court. He also goes on to say that they haven’t received a response regarding this claim and he wants me to look at their electronic letter to review this information.

I’m not sure if they didn’t get my previous email or just chose to ignore it. It makes me wonder if this is just an elaborate scam. I emailed him back and explained again that other site isn’t mine. No response yet. What should I do?

Jamie says:

See that others are being extorted by this higabee troll, is there a way to band together and file a class actiion harassment suit against this firm. I to am getting harassed. They are trying to get me for $1755 which we do not have. We have a non-profit organization and we get little to no funding to operate to change lives by helping others. I expalined all I could afford to do was send $100 and apologize out of good faith. We did remove the images once notifed. They sent back another amount of $1500 and I said no, all I will pay is $100, but wanted a copy of the copy right and a letter that says it is resolved before sending any money. I have not heard back yet.
So, I feel this is a scam and if we pursue a class action suit, maybe we the people can shut down corrupt businesses such as the higbee trolls.

Josh (profile) says:

Re: Also being scammed

We received a harassing email as well. I would be interested in a class action lawsuit. The link they claim the infringing image is on does not exist, and never should have existed, but they provide a screenshot in the PDF document of a browser window with the image in the middle of a white page with our "header" at the top. This page does not exist and I’m working with my web host to gather our database logs to see if this wordpress page ever did exist and/or where/when/by whom it was created by.

I am either certain that 1) this screenshot is forged and there will be no database record of it. The timestamp on the desktop is hard to tell from the screenshot they provided, but it does not look like a recent date.

or 2) Given the site in question was a wordpress site a few minor versions behind on updates, that they maliciously hacked the website to upload the image just to take a screenshot and then took the image down.

Either case,

Tony Marciante says:

Re: Troll

We got some letters too, emails, same drill. Without seeming nonchalant, this all seems to be spamming/trolling/bs designed to get someone to be scared and send them a check. Ask your attorney, as I am a Chef…but that being said.
They sent me some kind of bs “court” documents, unregistered, with no case number and no proof. Be careful what you receive unsolicited… too much smoke here to not be fire in my opinion.

NSMC says:

They just tried it again

Nailed them with Doctrine of Unclean hands, intrastate fraud, etc.. seems they went after a company in a different country and came after us by mistake. Clearly not professional outfit at all, so I challenged them to file in USDC Middle District of Florida… they declined stating that we didn’t have any money worth going after…. so much for that.

Janice Doe (profile) says:

Investigating the Higbee & Associates Copyright Trolling

Hi Carolyn – just wondering if there have been any updates on this case since February? I got a very similar letter… Do you know if this law firm has ever actually taken anyone to court? Doesn’t look like it from what the court case locator shows. Not sure if you guys saw but the owner of the firm has a lawsuit against him going in NY.

practicalhelp (profile) says:

Same drill for me. A Higbee demand based on a blog post demanding thousands of dollars for a linked photo to another website.No rational relationship between the demand amount and the alleged infringement. I am looking for pro bono legal representation or to join a class action suit against these trolls. This is intensely stressful and my health is suffering, due to ongoing medical issues.

Anonymous Coward says:

Many copyright holders find it easier to not clearly mark their photos as copyrighted, like done by Getty and Shutterstock. These folks register their photos and then wait for someone to accidentally download something. They hope to make more money monetizing photos via threatened lawsuit than by selling them. Copyright trolling law firms such as Higbee & Associates then use software to find posting of any mistakenly and in some cases intentional copies of photos. It is call the mass litigation model to monetize infringements, that would under most circumstances be worthless cases. It is a terrible misuse of the legal process. Someone should definitely open a class action on this crowd of bullies.

Curt Archambault (profile) says:

Add me to the list...

Hey there,

I received an email about this a few months back as a result of a small personal fundraiser I did to get Turkeys for Thanksgiving for our low-income neighbors at a non-profit. The personal campaign ran for less than 30 days and netted about $750.00. I explained in a phone call after my initial letter (sent to the nonprofit, not me) that used photos from Creative Commons. I explained that this was not a fundraiser by the nonprofit but me personally. I asked the platform that I used to take down the photos as soon as I found out as a way to appease them. The only reason the site was still up after the fundraiser is that since some donations were made, the site had to stay up. The campaign was for about 30 days but they are claiming that it was up for 2 years and thus, I owe big money. Originally as another way to come to a compromise, I offered to pay for the image for a period of 30 days which I figured to be around $100. The person I talked to said that she would consult the lawyers (as she was not one) and that was the last I heard until today. Then this arrived:
Mr. Morgan,

My name is Lily Garcia. You have previously been in communication with Ms. Quarles regarding this matter. This case has been handed over to me as a last attempt to settle amicably before our litigation team takes over. Our client, Adlife Marketing & Communications Co. Inc., hopes to finalize and close this matter outside of court

We are aware that on March 5th, 2020 you offered to pay for the license of the image to cover the unauthorized use. Let me provide a more detailed explanation for you. Our client has a subscription for their full inventory of images for $999.00 per month with a minimum of a 1 year subscription. This is also public information on

This means, to use our clients image, you would have needed to pay $11,988 for 12 months use. Since we have screenshots dating back to November 14, 2018 and the image still lives its file location today (see below), this means that the image has been in use for 2 years. This means that you would have needed a 2 year subscription which would have been a total of $47,952.00. However, they are only asking to be compensated in the amount of $4525.00 for the unlicensed use.

On top of the 2 year subscription that should have been paid, our client will also be able to seek disgorgement of profits/donations that you made from using their image for 2 years. This means they will be able to seek the actual licensing cost as explained in the subscription pricing above as well as the profits for 2 years. This clearly far exceeds what our client is asking.

Our client is asking the amount of $4525.00 to cover some of the licensing cost. Please advise if we can proceed with this amount or if you have an attorney who will be accepting services on behalf of Immanuel Community Services.

Kind regards,

Funny enough, my name is not Mr. Morgan. No idea who that is. My guess is that the last person who contacted me dropped it but another enterprising legal assistant took up the mantle.

This is very frustrating on so many levels and there has to be some action we can take. This thread makes it clear that they are trolling and have many targets. What is next. Can Ms. Homer offer some suggestions. At this point…I am ready to pay a lawyer just to teach these trolls a lesson.

Glenn Reiser says:

Higbee Trolling

I successfully got these trolls to back off from their demands that I pay $2500 for my innocent use of a Creative Commons license photo where I forgot to attribute the author. They want so far as to send me a draft of a Complaint signed by a Higbee lawyer that was captioned in the United States District Court for the District of New Jersey. Some quick research confirmed that the attorney who signed the Complaint was not presently admitted to practice law in New Jersey – her license was administratively terminated for failure to pay the annual New Jersey attorney registration fee. I responded to Higbee’s draft Complaint by sending him a draft professional ethics complaint charging him and his colleague with the unauthorized practice of law, and told him that I would file the ethics complaint if he proceeded to file the District Court case. He backed off and I never heard from him again.

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