Lawyers Threaten SomethingAwful For Using Photo In Movie Review

from the that's-just-something-awful dept

Rich "Lowtax" Kyanka is certainly no stranger to ridiculous and misguided legal threat letters -- and it appears that he's now got another one. On Monday, he posted to Twitter an image of a threat letter from law firm Higbee & Associates, claiming that this April 2014 review of the Scarlett Johansson film Under the Skin is infringing on Higbee & Associate's "client's" copyright because it includes a still image from the film.
Here's a screenshot of the image in the page with the review:
The review itself is fairly positive on the movie. And, if you're wondering, that same exact image was used on tons of reviews. Like this one and this one and this one and this one, and I'm getting tired cutting and pasting, but trust me, there are plenty more.

There are some oddities about the letter itself. First off, it doesn't appear to ever name the client in question. Actually naming the client/copyright holder is pretty typical with these kinds of letters. They usually note that they are representing a particular client, and make it clear who holds the copyright to the work in question. Yet, here, Higbee & Associates doesn't do that. The letter also makes some weird assertions that suggest whoever wrote the letter isn't all that familiar with copyright law. For example, there's this:
As the infringement occurred on a company website, the company is liable for the unauthorized use in the absence of a valid license, including cases in which a website designer, employee, intern or any third party is responsible for the inclusion of this image on your website.
That, of course, completely ignores the DMCA's safe harbors which actually say the opposite: that a service provider can be protected from liability from actions of third parties, under some specific circumstances (which may or may not apply here -- but it does seem odd that the Higbee lawyer seems to not even understand this).

In fact, looking at Higbee's website, almost everything feels a little... off. It's strange enough that Higbee puts "A National Law Firm" in its own damn logo, as if that's a key selling point, but its website reads like what non-lawyers would think a law firm's website should say.
If you can't read that, it says:
We are a national law firm that prides itself on providing exceptional value by delivering high quality legal representation, the best customer service, and prices that are typically 35% below industry standards.

We offer flat fee pricing on most services so there are no bad billing surprises. We have an online case management system that allows you to see up to the minute details on your case. Most of the cases we handle even have a money back guarantee. Our dedication to our customer service is so strong that it has earned us "A+" ratings with the Better Business Bureau for 7 straight years.
Well, okay then.

It seems likely that the unnamed "client" here is INFPhotos, which is a stock image provider of celebrity photos. Some of the other stories that have used the same image cite INFPhotos, so chances are that's who's licensing the photo. Given all that, perhaps there's some sort of legitimate claim buried deep behind the weird threat letter, if the image is not actually from the movie itself, but from a separate photographer. Even so, it seems like a bizarre reason to go after SomethingAwful, and one that's not likely to end up going particularly well for Higbee & Associates.
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Filed Under: copyright, fair use, movie review, rich kyanka, scarlett johansson, under the skin
Companies: higbee & associates, something awful

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  1. icon
    DannyB (profile), 9 Jun 2015 @ 12:57pm


    That's very good.

    What I think you are saying, in short, is failure to consider 'fair use' or Section 230 of CDA (and other factors) prior to filing a lawsuit is a violation of Rule 11(b)(2) of the Federal Rules of Civil Procedure.

    But then this...
    the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.
    That's pretty cool. Such sanctions need to start being handed out like candy!

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