Copyright Troll Mathew Higbee Demands ~$1,000 For Image Only His Team Viewed

from the try-that-again? dept

Copyright troll Mathew Higbee and lawyer Paul Levy, described as "the web bully's worst enemy", have been battling back and forth ever since Paul wrote up a thorough trashing of Higbee's trollish behavior nearly a year ago. Levy recently noted that more and more Higbee victims are coming to him, and that Higbee has actually told Levy that he "enjoys" that Levy is flooded with requests from Higbee's victims. Levy also notes that, in some cases, there is actual infringement happening, and then the question comes down to what is a reasonable amount to pay, and what will Higbee accept.

One of the key things that Levy has called Higbee out on is his demand for attorney's fees, even in cases where that's not allowed under the law. This is often true in cases where the photographer failed to register their copyright, and they may only obtain "actual damages," rather than statutory damages. Attorney's fees cannot be counted in actual damages, but Higbee seems to hope that no one notices that. Levy has. In his latest post on all of this, he highlights how Higbee tries to just ignore Levy when called on this point.

Actual damages in a copyright case are, generally speaking, measured either by the profits made by the alleged infringer or the lost license fees of the copyright owner.. In most of the cases in which the Higbee firm is seeking a remedy, the Higbee target did not make significant profits from the use of the image. Moreover, in many of these situations, the graphics whose copyright the Higbee firm seeks to enforce can be found on Getty Images or similar locations, bearing license fees as low as fifty to two hundred dollars, depending on the use.

However, the fact that the standard license fees are so small does not discourage the Higbee firm from demanding payment running upwards of a thousand dollars, even several thousand dollars, from individuals and companies that posted (or linked to) a photo whose copyright was never registered, and from having its “claims resolution specialists” send one threatening email after another telling the targets that, unless they pay up immediately, the case is going to be “escalated” to the litigation team. Many of the targets of these letters find the prospect of “escalation” and “the maximum justifiable damages” intimidating; they are in no position to hire a skilled intellectual property firm to give them knowledgeable advice or to defend them. The easy course is to pay what is demanded, or to feel successful if they can beg a few hundred dollars off the demand.

Levy notes that some Higbee victims have taken to just sending a check, often for the stated license fee of the image, and that alone (which, at worst would likely be the extent of any "actual damages"). However, Levy, along with lawyers Robert Schwartz and Seth Greenstein, are representing a Higbee victim who actually tried sending a check for twice the stated licensing fee, and Higbee is still demanding much, much more. The circumstances here are quite incredible. The threat went to a tiny non-profit, that apparently used an image in a newsletter nearly a decade ago. No one has looked at that image on the website in well over five years (way beyond the statute of limitations) until Higbee's team did. And, yet Higbee is still demanding over a thousand dollars.

Levy's letter to Higbee highlights the problems with Higbee's approach:

[Society of Emblem Studies treasurer, Elizabeth] Black investigated and ascertained that the applicable license fee is $80. Because she was unsure whether a license fee was paid (given that the person who posted the cartoon is no longer with the Society), Black offered to pay $160, double the license fee, for the Society's past use of the cartoon. [Higbee employee Sarah] Brant did not deny that $80 is the license fee, but she said that the amount offered was not enough. Rather, she said, your client insists on a payment of $1000.

Hoping to be done with the matter, Black sent your ?rm a check for $160.

Brant has stated, however, that you will either destroy or return the check, and that she has "escalated" the dispute to your firm's litigation team. The theory is that the Society needs to pay for your client's "enforcement" costs which, I take it, means covering your firm's share of the payment. Brant has never explained the basis for her implicit claim that $920 has been spent on enforcement costs.

Even so, the Society has paid $160 and that amount is all that it is willing to pay to avoid litigating your claims. The cartoon was taken down so you have no claim for declaratory or injunctive relief. Because the copyright has never been registered, your client can sue only for actual damages: that means either the Society's profits from the alleged infringement, if any, or the lost license fee. Your client has no claim for any other monetary relief. The assertion in your initial demand letter that your lawsuit could claim attorneys fees was, therefore, an empty threat. The $160 already sent to your firm, double the license fee, more than covers the amount of any likely actual damages that your client could recover in litigation.

Indeed, although you or your client must have visited the web page in question in 2019, in the course of locating the cartoon there, given the absence of any visits during the five year period beginning in 2014, and considering that the statute of limitations for copyright claims is three years, it is at least arguable that no infringing reproduction took place as a result of the photo sitting on the Society's web site. The only "infringement" would, then, have been the result of your client's own inspection of the page. You would look a bit silly litigating an infringement claim based on such facts, and you might well not even be able to collect actual damages.

Even assuming that there is a claim for actual damages, you and I have previously discussed, in connection with other potential cases, your contention that "actual damages" can include enforcement costs, in cases in which 17 U.S.C. § 412 bars copyright owners from recovering attorneys fees because the copyright was not timely registered. I have found no caselaw supporting a claim for enforcement costs as part of actual damages; when I asked you for such authority, you supplied none. Instead, you told me that when you seek enforcement costs in such cases, it would be in hope of finding something in discovery that warrants statutory damages or attorney fees.

In the past Higbee has turned and run away when Levy gets involved, and it wouldn't surprise me to see him do so again here. But, at the very least, we should call out extortionate behavior for what it is. Anyone who uses Higbee or other copyright trolls is seeking to abuse legal threats as a form of a shakedown.

Filed Under: actual damages, copyright, copyright troll, demands, mathew higbee, registration
Companies: higbee and associates, society of emblem studies


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  1. icon
    That One Guy (profile), 27 Nov 2019 @ 8:13am

    Making the legal field proud

    There just seems to be something in copyright extortionism that brings out the utter asshole in lawyers who engage in it, the question is are they assholes going in and they just find a perfect fit in threatening people for fun and profit, or does the easy money turn even otherwise decent people into raging assholes?

    (Mind, it's basically a rhetorical question at this point when it comes to Higbee, as however they got there they are quite clearly relishing being a world-class scumbag and festering pimple upon the legal field.)

    While it would be great if judges started smacking down such parasitic scum hard for blatant abuse of the legal system, or for even the most desperate and greedy individuals to refuse to hire them because they have standards higher than 'absolute zero', until such time comes I suppose the enjoyment will have to come from watching the craven cowards crawl away like the spineless worms they are the second actually competent and ethical lawyers challenge them and demand that they support their claims and demands with something more weighty than 'because I said so'.

    reply to this | link to this | view in thread ]

  2. icon
    Stephen T. Stone (profile), 27 Nov 2019 @ 10:17am

    the question is are they assholes going in and they just find a perfect fit in threatening people for fun and profit, or does the easy money turn even otherwise decent people into raging assholes?

    Yes.

    reply to this | link to this | view in thread ]

  3. identicon
    Annonymouse, 27 Nov 2019 @ 10:17am

    It is the rare judge that will discipline lawyers for aberrant behavior.
    I personally think that judges are just as bad because they are one and the same creatures after all.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 27 Nov 2019 @ 11:17am

    Any one else think Levy should go after his own attorney fees for "enforcing" Copyright law against this troll?

    reply to this | link to this | view in thread ]

  5. identicon
    Christenson, 27 Nov 2019 @ 11:21am

    Broken Stairs

    Please note that this is exactly the same situation as with #metoo. Everyone knows about the abusers but noone with sufficient authority can be moved to act against them.

    reply to this | link to this | view in thread ]

  6. icon
    James Burkhardt (profile), 27 Nov 2019 @ 11:46am

    Re:

    Nope. I prefer that Levy continue to act as an ethical lawyer.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 27 Nov 2019 @ 12:25pm

    Re: Making the legal field proud

    There just seems to be something in copyright extortionism that brings out the utter asshole in lawyers who engage in it, the question is are they assholes going in and they just find a perfect fit in threatening people for fun and profit, or does the easy money turn even otherwise decent people into raging assholes?

    Might be IP in general. I've seen threat letters from trademark lawyers that made inaccurate claims as well:

    Lawyer: Because of case ABC v. XYZ, you have to give us this information!

    Me: That's not what that case said. It actually says this. Come back when you have what this case actually says you need.

    Lawyer: No response.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 27 Nov 2019 @ 12:43pm

    Re: Broken Stairs

    This article couldn't be further from the metoo movement if it tried. You clearly have problems understanding what you read or your account is fake and you are posting generic shit to get credit somehow.

    reply to this | link to this | view in thread ]

  9. identicon
    Dan, 27 Nov 2019 @ 12:59pm

    Re: Re:

    ...and seeking fees for his work would be unethical how, exactly?

    And there's actually a pretty strong chance Levy could be awarded fees, but it would require Higbee to actually file suit, based on FRCP R 68 (which has been discussed here recently). In short, it provides that if a plaintiff didn't recover substantially more at trial than they were offered in settlement, they're on the hook for the defendant's costs--including attorney's fees, if the plaintiff would have been entitled to those. Here, an offer of settlement of double the actual damages was made and rejected, so it's highly unlikely Higbee would be able to recover more than that. If Levy were to bill fees, he'd likely recover them.

    reply to this | link to this | view in thread ]

  10. icon
    Bergman (profile), 27 Nov 2019 @ 1:05pm

    Oh dear...

    "The only "infringement" would, then, have been the result of your client's own inspection of the page."

    If the client owns the copyright but only saw the image because that client or their agent requested a copy from the website the image resides on, then that request creates a license to make one copy. And the image the client saw was actually a licensed, authorized image!

    This is why it's all but impossible to judge whether any given image found online is authorized. Take a picture of something with a digital camera. Leave the memory card from the camera lying on a table. Someone who isn't the photographer picks up the card and uses it without the photographer's permission to post the image to Facebook then puts it back on the table. Then the photographer comes back and uses the card to post the image to Facebook as well.

    The two images on Facebook are identical in every way except the time stamp of the Facebook post. But one is legal and the other is copyright infringement. If Facebook were to keep the one with the earlier time stamp and ban the poster of the second one for copyright violation, that would be supporting the copyright violator over the actual owner. But there is no other way to do copyright moderation without either doing none at all or forbidding all content from being posted at all!

    reply to this | link to this | view in thread ]

  11. identicon
    Ed 33, 27 Nov 2019 @ 9:16pm

    Really?

    Does Masnick really not understand that parties can ask for anything in negotiations? If Higbee’s client wants compensation for the time he or she has spent chasing down the infringer, the client can ask for it. Obviously, if the claim goes to court, the relief sought has to follow the statute. And the accused can simply ignored the demands if they believe they have no legal merit, at least until they get sued, which Higbee seems to do quite often.

    reply to this | link to this | view in thread ]

  12. identicon
    Ed, 27 Nov 2019 @ 9:22pm

    Re: Broken Stairs

    Are you brain damaged? Someone getting a letter asserting a copyright claim that they believe to be without merit can solve the problem by throwing the letter in the trash. The me too movement involved abuses of power by people with genuine power over people’s careers, reputations and livelihood.

    reply to this | link to this | view in thread ]

  13. icon
    Mike Masnick (profile), 27 Nov 2019 @ 10:52pm

    Re: Re: Broken Stairs

    Someone getting a letter asserting a copyright claim that they believe to be without merit can solve the problem by throwing the letter in the trash.

    This is horrifically bad advice.

    reply to this | link to this | view in thread ]

  14. icon
    Mike Masnick (profile), 27 Nov 2019 @ 10:54pm

    Re: Really?

    Does Masnick really not understand that parties can ask for anything in negotiations?

    You appear to have a reading comprehension problem. Copyright law has clear limitations on what you can get in court. Asking for significantly more than that as part of a "negotiation" as you call it is dumb -- and that's what Paul is pointing out here.

    And the accused can simply ignored the demands if they believe they have no legal merit

    Again, as noted above, this is horrifically bad advice. Better advice is to get a lawyer, like Paul Levy, who can respond to the likes of a Higbee and point out that he has no chance of obtaining what he's demanding in court.

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, 28 Nov 2019 @ 2:25am

    Re: Re: Really?

    You appear to have a reading comprehension problem. Copyright law has clear limitations on what you can get in court. Asking for significantly more than that as part of a "negotiation" as you call it is dumb -- and that's what Paul is pointing out here.

    If someone had to pay a lawyer to get the settlement, they have every right to ask for that back as an alternative to litigating. Copyright law does allow for attorney fees in many situations btw.

    reply to this | link to this | view in thread ]

  16. icon
    That One Guy (profile), 28 Nov 2019 @ 4:45am

    Re: Re: Re: Really?

    Even assuming that there is a claim for actual damages, you and I have previously discussed, in connection with other potential cases, your contention that "actual damages" can include enforcement costs, in cases in which 17 U.S.C. § 412 bars copyright owners from recovering attorneys fees because the copyright was not timely registered. I have found no caselaw supporting a claim for enforcement costs as part of actual damages; when I asked you for such authority, you supplied none. Instead, you told me that when you seek enforcement costs in such cases, it would be in hope of finding something in discovery that warrants statutory damages or attorney fees.

    Let's see, random AC or actual lawyer... hmm, that's a tough call as to who is more likely to be correct, gonna have to think on that one.

    reply to this | link to this | view in thread ]

  17. icon
    Scary Devil Monastery (profile), 28 Nov 2019 @ 6:04am

    Re: Making the legal field proud

    "... the question is are they assholes going in and they just find a perfect fit in threatening people for fun and profit, or does the easy money turn even otherwise decent people into raging assholes?"

    You more or less have to be an asshole going in.

    Looking at how many copyright enforcement agencies have had issues with the law - from tax evasion to drug dealing you can draw a conclusion that "Copyright enforcement" is to law enforcement what "dredging sewers" is to city sanitation. The dirtiest possible job which, although it brings good money, still won't get you a place at the good table.

    reply to this | link to this | view in thread ]

  18. icon
    Norahc (profile), 28 Nov 2019 @ 1:24pm

    Let's see, random AC or actual lawyer... hmm, that's a tough call as to who is more likely to be correct, gonna have to think on that one.

    Maybe random AC is Twitter Law grad and he is talking about cases in front of the Highest Internet Court. Their rules may be different.

    reply to this | link to this | view in thread ]

  19. icon
    wshuff (profile), 29 Nov 2019 @ 5:28am

    Re: Re: Re: Really?

    If the statute prohibits recovery of attorney fees in cases where the copyright hasn’t been registered, simply relabeling “attorney fees” as “recovery costs” in those cases isn’t going to fly because it makes the statute superfluous. Courts don’t like that.

    reply to this | link to this | view in thread ]

  20. icon
    That One Guy (profile), 29 Nov 2019 @ 5:42am

    Re: Re: Re: Re: Really?

    'Your Honor, while my client is being charged with assault I would like to point out that they quite clearly called it 'facial reconfiguration' at the time of the alleged 'assault', a term which is not in the law. As such it would be contrary to the law to punish them under the statutes for assault given the totally different words they used to describe their actions, which as any good lawyer knows is absolutely sufficient to change the underlying act and what it qualifies as.'

    reply to this | link to this | view in thread ]


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