How it Begins…
Did Higbee & Associates send you a letter demanding that you pay an exorbitant amount of money to avoid being sued? You’re not alone. Higbee & Associates has been sending these demand letters by the thousands. Higbee & Associates, a “national law practice,” claims to be a zealous advocate in the copyright legal sphere, serving to protect clients who have had their online images used without their consent.
Generally, by the time Higbee & Associates contacts you, you’ve already been contacted by a company known as PicRights, an international company who has tasked themselves with ensuring compliance with copyrighted material. In particular, online images claimed to be protected by a valid copyright. PicRights represents individual clients who are largely unrecognized by the general public but they also represent big name companies, such as Reuters and the Associated Press (AP), which they prominently advertise on their company website.
To catch online users who have circumvented a license to use a copyrighted image, PicRights uses advanced AI computer technology and reverse image algorithm searches to scan the internet 24/7. When PicRights is alerted that their client’s image has been used without permission, they will send a letter, much like the one sent by Higbee & Associates, attempting to “resolve” the claim, usually demanding payment be made in order to avoid a lawsuit. That said, you should know, however, that PicRights is not a law practice and does not have the legal acumen to sue you. That’s where Higbee & Associates comes in.
When the demand letter recipient declines to pay what PicRights has demanded, ignores the PicRights demand letter altogether, or simply never receives the PicRights demand letter because it is filtered as spam, the claim is sent to a law practice such as Higbee & Associates. Although the manner in which PicRights and Higbee & Associates approach alleged infringers is arguably aggressive, it should be noted, they do have a track record of bringing select claims to court.
Is the Demand Letter Legitimate or is it a Scam?
The purported “scam” looks a little something like this: you open your email, and your Spam Folder populates a letter authored by PicRights, or in this scenario, Higbee & Associates. You open the letter, and you are shocked to see a demand that you pay money to resolve potential claims against you or risk litigation. The letter cites the Copyright Act, the applicable law, and claims that Copyright Act violations can result in up to $150,000 damages. To support the validity of their claim —the demand letter includes attached exhibits containing images that you have possibly shared online that are arguably not rightfully yours to use.
You look up Higbee & Associates and discover they run a real law practice, posting their recent wins in the copyright litigation sphere. This seems legitimate and you start to panic. You don’t want to be hauled into court and you don’t have the money to pay an attorney to represent you. You know nothing about copyright law, and you believe they possibly caught you red handed—they have the images to prove it. You decide it’s better to pay them what they want, and you do so. Unbeknownst to you, you may have been scammed (or at least partially duped) by a copyright troll who possibly did not have a valid legal claim against you.
It can be very challenging to decipher what is a probable consequence and what is merely a scare tactic when it comes to Higbee & Associate demand letters. This is because these third-party compliance entities and the law practices they hire have become skilled in melding the truth with lies. While they may have some legitimate claim to monetary damages, rarely do they amount to what is threatened. For example, a Higbee & Associates demand letter will usually state that should the claim not be resolved according to their terms, they are willing to litigate the claim and seek up to $150,000 in statutory damages under the Copyright Act. However, they will cleverly omit that statutory damages can only be obtained when the material alleged to be used illegally has been properly registered and is accordingly protected by a valid copyright.
While copyright claims are real and do arise, it is questionable as to whether Higbee & Associates has as much legal merit to back up their claims as they contend. Because PicRights seeks to remedy small violations, where little is at stake and there are strong arguments against liability, and substantial violations where large penalties could be validly imposed, many have thought Higbee & Associates to be running a large-scale internet trolling scam, with Higbee & Associates properly earning their title as “copyright trolls.” Ultimately, Higbee & Associates has discovered a way to capitalize on the unsuspecting publics’ naivety when it comes to copyright law, and it’s working.
You can avoid being a victim to potential online internet trolling scams such as this by knowing what to expect. While this article will clue you in on the common components contained in nearly every Higbee & Associates demand letter, and how you might decipher what claims are meritless and which are not, you are always advised to contact an attorney who has experience working with copyright law. That said, even if Higbee & Associates’ claim is meritless, this does not mean they will stop harassing and bullying you into paying up. A seasoned copyright attorney can address the situation quickly and determine what action is needed.
The Demand Letter and its Components
Those who receive a Higbee & Associates demand can expect to receive the above-mentioned demand letter, which will usually include a “claim number,” a particular monetary demand (i.e., $500), and threats that they will pursue legal action or seek damages amounting to up to $150,000 under the Copyright Act should the recipient not pay the amount demanded.
The Higbee & Associates demand letter will also include an exhibit or exhibit(s) showing the alleged copyrighted image and where the copyrighted image was located, a Representation Letter showing their ability and authority to represent their client, a Release and Settlement Agreement requiring the recipient to admit that they used the copyrighted material without a license and that, upon payment, the claim will be released, and a Credit Card and Payment Authorization Form, where the recipient can provide your credit card number or ACH payment. For comparison, you can see an actual demand letter here.
How to Approach a Higbee & Associates Demand Letter
Although it is possible that the Higbee & Associates demand letter you received is little more than a scare tactic intended to get you to pay up—or at minimal, is less serious than they allege—this does not mean that the letter should be ignored or taken lightly. Remember, a claim is generally not sent to Higbee & Associates until PicRights: (1) either attempts to reach the recipient and contact was never made; or (2) the recipient and PicRights could not reach a settlement, or the recipient declined to pay anything. Because PicRights attempts have already been made, ignoring the Higbee & Associates demand letter may make it more likely that Higbee & Associates will haul you into court (or at least try), and you may end up paying more in court costs to contest their claim than you would have had you sought legal advice at the outset.
Upon Browsing Higbee & Associates’ website, you might see that they cite their “notable recent court successes.” The most recent case cited, RM Media LTD. v. Eric Tran, which occurred in 2018 (and can hardly be deemed as a “recent case”), is somewhat misleading in the way in which it is captioned. Upon deeper review, it is clear that the claim was never actually litigated, meaning Higbee & Associates’ claim was never proved to have any merit. Rather, because Tran never responded to Higbee & Associates’ demands, and never appeared in court, Higbee & Associates was able to obtain a judgment against him. While Higbee & Associates didn’t receive nearly what they claimed to be owed, they did receive at least some monetary damages simply because the demand letter recipient, Tran, never responded or appeared.
This “notable recent court success” should serve as a warning that ignoring Higbee & Associates’ demands will get you nowhere and they will still look to sue you, even when the claim is potentially bogus. It should also be noted that all Higbee and Associates alleged “court successes” are instances where the recipient never responded to Higbee & Associates’ demands and were not based on Higbee & Associates’ ability to prove that their claim was actually valid or valuable to their client.
In addition, note that all “recent” cases occurred prior to 2018 or during 2018, calling into question whether Higbee & Associates is having as much success as they indicate, particularly considering that Higbee & Associates sends more than a thousand demand letters a year. Suspiciously, the Higbee & Associates website only provides the actual order granted by the court to support their proclaimed “success,” without providing their own commentary or additional explanation as to the reason they were able to “prevail.” Upon closer examination, these court orders essentially state that Higbee & Associates prevailed because no one answered their lawsuit, meaning they only “won” because the demand letter recipient never showed up to argue why they should not be held liable under the circumstances. This is pure trickery and is likely to play on people’s emotions, people who have no substantial legal knowledge and who won’t understand a court order or its contents.
Step 1: Contact an Attorney Immediately.
We have discussed that deciphering whether Higbee & Associates actually has a valid Copyright Act claim can be challenging and that no two copyright cases are created equal. For this reason, in all circumstances, you should consult an attorney whom you can discuss the letter with and any liability you might have to Higbee & Associates and their client. The worst decision you can make is to ignore the letter. Higbee & Associates are known to be aggressive and unrelenting when it comes to getting their client what they believe is owed. When their demands go ignored, they will persist. The second worst mistake you can make is to negotiate without consulting an attorney, because, as we discussed, you cannot rely on Higbee & Associates to be honest about whether the money they are seeking is likely to be awarded by Court provided their claim is proven to have merit.
While you might be concerned about what an attorney might charge, many times, a 15-minute consultation with an experienced attorney working with copyright law might be all that is necessary. An experienced attorney in this area can thwart any continued demands made by Higbee & Associates and easily spot claims lacking merit.
Step 2: Remove the Content Claimed to be Covered by Copyright.
Now that you’ve contacted an attorney, go ahead and remove or take down the image(s) that Higbee & Associates claims you have used without the copyright holder’s permission. While you might question whether you’re destroying evidence by doing so, destroying evidence is not a concern here. Higbee & Associates has what they need to “win” (or so they believe) as evidenced by the exhibits attached to the demand letter you received. In any event, we all know nothing ever really goes away once it’s been posted online. PicRights, who likely sent your claim to Higbee & Associates, makes it very clear on their website that simply removing the image(s) means nothing and that they nonetheless have a claim even once the image or images are removed.
Ultimately, no matter how you look at it, immediately removing the image(s) will not hurt you, but it might help you. As we will discuss later, each copyright violation is determined on a case-by-case basis and a court may or may not consider the intention behind the copyright and your willingness to remedy any discovered violation.
Step 3: Examine the Letter and Determine whether there are Telltale Signs that Higbee & Associates’ Claim Might be Phony.
It is likely that an attorney will not return your call or email immediately. While you wait, you are likely to worry about what could happen and the consequences you might be called to deal with. As stated above, only an attorney can provide you with the sound legal advice you will need to respond to a Higbee & Associates demand letter. However, there are many telltale signs located in almost every Higbee Associates demand letter that can indicate that the Higbee & Associates’ alleged claim against you might be phony or at least somewhat exaggerated. We will call these telltale signs “phony claim indicators” and will discuss each phony claim indicator in more detail below.
Phony Claim Indicator 1: No Copyright Registration
To have a valid copyright claim pursuant to the Copyright Act, the owner must have had the image in question registered as copyrighted. Higbee & Associates generally overlooks—and are counting on you to overlook—that to be validly covered by copyright, the material in question must be registered.
Materials that can be copyrighted are generally limited to texts, artwork, photographs, other images, sound recordings, music, lyrics, and screenplays. Accordingly, titles, slogans, and phrases are generally not covered by copyright, but are protected by trademark. While the Higbee & Associates’ demand letters overwhelmingly involve online images and photographs, consider the material Higbee & Associates claims to be protected. In addition, a copyright generally lasts around 70 years. Consider the material’s age and whether the Copyright Act even existed when the claimed copyrighted material came into being.
The registration process requires the creator (the person or entity seeking to have the content copyrighted) to complete and submit an application with pertinent details about the material(s) they are hoping to get copyrighted, the actual material(s), and the payment required to submit the application. When material is properly registered, the material will receive a unique registration number (not to be mistaken with the “claim number” cited in the Higbee & Associates demand letter, which is completely irrelevant to the claim). Only registered materials are protected by the Copyright Act, and only those materials protected by the Copyright Act can lead to statutory damages under the same.
Where no registration number is cited, you might be able to reasonably conclude that Higbee & Associates’ alleged claim against you may be phony, depending on other circumstances. You can investigate whether the claimed copyrighted image is actually a registered copyright by searching in the public catalog U.S. Copyright Database. However, while you don’t need to have a registration number to make a demand, you do need one to properly bring a claim in court and properly obtain statutory damages under the Copyright Act. Accordingly, you can still be proven to have used an image without the creator’s permission and owe some monetary penalty, but it won’t be as severe as those damages under the Copyright Act.
Phony Claim Indicator 2: Boilerplate Language
Any valid demand letter will have consistent language throughout, will be particularized and personalized concerning the issue at hand, and will only threaten consequences that can be carried out. For instance, consider this real-world example: a Higbee & Associates demand letter was sent to an organization known as HUFF (“Homeless United for Friendship and Freedom”) claiming that HUFF had violated the Copyright Act with respect to a blog written by the New York Times covering immigrant detentions in Greece—including an alleged copyrighted photograph—which HUFF reposted on their own blog page.
HUFF sought an attorney’s assistance, who, upon reviewing the letter, was easily able to debunk the copyright claim alleged by Higbee & Associates based on the language used throughout the letter. Not only did the letter inconsistently discuss HUFF in second- and third-person narration (i.e., you versus it/they), but the letter also cited “exhibits” attached to the letter where only a single exhibit was attached. Although the exhibit was the image used in New York Times’ blog, the letter never mentioned the photograph with any particularity, or where it was located, but simply stated that the photograph attached was related to a “copyright matter.”
Although this circumstance alone cannot necessarily prove that the alleged violation is altogether phony, it can indicate how serious the claim is to Higbee & Associates. It should be expected where big money is at stake, the letter will provide as much detail as possible and will be written with the utmost care. Poor editing and clear grammatical errors such as this are strong indicators that the letter has been used at some earlier date and has been sent to another person or entity, making any seasoned attorney apprehensive on whether the claim alleged is truly legitimate.
Phony Claim Indicator 3: Claimed Entitlement to Damages not Permitted by Law.
In addition to the downright poor writing technique utilized, the Higbee & Associates demand letter to HUFF alleged that the “business owner” could be pinned with legal consequences despite HUFF not being a business or even having an owner. The letter also threatened to have HUFF’s wages garnished, which, by law, cannot be done as an organization legally cannot receive “wages” or have their wages garnished. As discussed in detail above, it is also important to realize that statutory damages cannot be awarded when content has not been registered, as discovered above. A reputable attorney sending a true and valid demand letter will generally not threaten damages that cannot be obtained under controlling law. This, similar to boilerplate language, would make any copyright attorney question whether the claim and violations alleged are legitimate.
Ultimately, the attorney was able to assist HUFF in this matter, revealing the demand letter to be a total sham. By pointing out these holes in the Higbee & Associates demand letter, HUFF was able to prevent ongoing bombardment and constant emails on what seemed to be a completely invalid claim. It should not be understated that HUFF was likely able to succeed against Higbee & Associates due to an attorney’s assistance and prompt response.
Arguments Against Liability
In many instances, there are strong arguments against liability, or at least arguments against paying what either PicRights or Higbee & Associates allege is owed. These arguments against liability are deemed “exceptions” to the Copyright Act, meaning when you are using the image in line with a recognized exception, you may not be liable to the copyright holder under the Copyright Act, provided the image is actually protected by a valid copyright.
Where the image was used to promote an educational purpose, the use may come within the “Face-to-Face Instruction” Exception and the “Online Distance Instruction” Exception, also known as the TEACH Act. We will not discuss these at length here, as they generally apply to educators working at an accredited university and are much less common than the third exception, the “Fair Use Doctrine,” which is likely the most common and most relevant argument when it comes to individual online users.
The Fair Use Exception
The best chance at avoiding liability will likely be based on the Fair Use Doctrine, which balances 4 considerations: (1) the copyrighted work’s purpose and use, (2) the amount used in relation to the whole work; (3) the copyrighted work’s nature; and (4) the copyrighted work’s potential market value. Here, there is no bright line rule when it comes to what is considered a “Fair Use,” and these considerations must be examined together to determine whether the use is one that is ”Fair” under the circumstances. Accordingly, each violation must be examined and decided on a case-by-case basis.
The demand letter recipient’s purpose in using the image and the way in which they used it is likely the most important consideration. In addition, it is also the circumstance leading to the most interesting and relevant case law in the “Fair Use” realm currently. Essentially, to have your use protected by the Fair Use Doctrine, there must be some substantial deviation in your purpose in displaying the image and the way you displayed it in contrast with the copyright holder’s purpose in creating the image and the way in which they displayed it. The bigger the contrast, the more likely it is to be deemed a Fair Use.
By and large, a PicRights or a Higbee & Associates claim will be based on an image the demand letter retrieved by using Google Images or another similar search engine. The average online user would likely never consider that an image displayed on a seemingly public website is protected by copyright; and why would they? There is no glaring disclaimer or banner advertising that using the images that populate in response to a search query could get you in big trouble. However, there is emerging case law covering this very issue and considering whether Google violates copyright law by displaying images without the creator’s permission.
These cases, in summary, essentially held that the way in which Google displays copyrighted images, at a reduced thumbnail size, is protected by the Fair Use Doctrine and that Google is not liable to the copyrighted holders who did not want their images displayed through Google’s search engine. The Court reasoned that Google’s purpose in using the copyrighted images contrasted greatly with the copyright owner’s purpose in creating the images. Where the copyright owner created the image with the purpose to promote art and artistic values, Google was displaying the images to provide access to otherwise inaccessible images to everyday internet users, which the Court has consistently recognized is an important public purpose.
Although the Court’s reasoning seems to be a stretch, and Google has been without liability, Google has since provided a mechanism which allows internet users to limit the images displayed to only those images that won’t require a license or are otherwise in the public domain. It is better to use this approach than risk inadvertently using a copyrighted image, as there is no bright line test or consistent, well-explained reasoning when it comes to determining whether an image’s purpose or the way in which it is used is too close to come within the Fair Use Doctrine.
The second consideration under the Fair Use Doctrine is how much material you used in relation to the entire copyrighted work. Essentially, the less that you use or borrow, the better. However, recent cases have proved that this is not always the case and a whole work can nonetheless be used without violating the Copyright Act. Even so, quantity and quality must be considered, and where the borrowed material does not amount to a substantial quantity in relation to the whole work, when the borrowed material encompasses the copyrighted images’ “heart,” it can be shown that the use violates the Copyright Act.
Here, the “amount used” consideration is generally more applicable to written works, such as novels and the like, where one page in a 200+ page novel was used. However, consider a photography exhibit which includes 50 photographs, or perhaps more, and you use one single photograph. Where the photograph you used was not well-recognized and did not necessarily summarize the exhibit as a whole, the use could lean towards being covered under the Fair Use Doctrine.
The third consideration under the Fair Use Doctrine—and likely the least complex—is the copyrighted image’s nature. The term “nature” is used to describe how creative or original the image is. Generally, the more creative the image, the more it is likely to be protected under the Copyright Act. In addition, whether the image is deemed to be published or unpublished is also a consideration. Where the work has not been published, the use will weigh against protection under the Fair Use Doctrine.
Historically, an image’s relative value to the market has been the most substantial consideration under the Fair Use Doctrine. However, in recent years, the “purpose and use consideration” has received more attention and is examined more closely than the market value consideration. The market value consideration examines whether your use may harm the material’s marketability, making it less likely that the image can be sold, and money can be made by doing so. However, it also examines the copyright holder’s role in the market and their individual ability to otherwise exploit the copyrighted material’s market where the image has already been circulated.
For example, this is an important consideration that can reduce or negate liability when the prohibited use is one in which no money was made, and viewership was rather limited. Consider an obscure, mostly unrecognized blogger who is now being held liable as to a blog posted 10 or more years ago that has essentially no viewership. Although making no money by using a copyrighted image, alone, will not negate liability, it is, at minimal, a consideration to be made.
While these considerations may not seem complicated at a glance, they are more complex than you likely think and require thorough analysis by a seasoned copyright attorney. The explanations and examples provided here are basic and do not encompass the unique circumstances inherent in every copyright matter. Because each case is examined on a case-by-case basis, it is hard to predict who a court might side with. For this reason, you will not only need an attorney’s legal experience but their training in persuasion, too.
The Bottom Line
Although many Higbee & Associates demand letters are generally nothing to be overly concerned about, there are instances where Higbee & Associates will have a valid claim that must be addressed. In any event, you should take the demand letter seriously and contact an attorney immediately to help you navigate the letter’s contents and analyze any potential claims leading to liability. Even when these claims may not be legitimate, you are still likely to expect continued aggressive contact and threats via email or maybe even by phone. A claim alleged by Higbee & Associates—even where you can make a valid counterargument—can still be won when you decline to respond. Ultimately, contacting an attorney who can respond to the demand is your best option. An experienced attorney in copyright law can easily assess Higbee & Associates’ claim and deescalate the situation accordingly.
Your initial step upon contacting an attorney should be to remove the image immediately. Although it is always advisable to contact an attorney, you can do at least some investigative work in the meantime, as well as some digging that can assist your attorney in developing your case more thoroughly. To assess the alleged claim’s potential viability, examine the demand letter’s contents closely. Consider whether the letter cites a valid registration number or simply recites their own personal claim number.
See whether there are glaring grammatical errors and how particular the letter is with regard to the recipient (you) and the image in question. The less particular the demand, the less legitimate it is likely to be. You should also be cognizant when it comes to the damages alleged and what Higbee & Associates claims you owe. Although Higbee & Associates can ultimately demand whatever amount they want, when a lawsuit is brought, only certain damages exist under law and can be contained accordingly.
Provided Higbee & Associates’ claim against you is valid and viable, there are still ways to avoid liability via exceptions under the Copyright Act. Likely the most relevant exception, the Fair Use Doctrine, takes into consideration your purpose in using the image and the way in which you used it, the amount used, the image’s nature, he image’s relative market value, and whether your use would impede the copyright holder’s ability to market the image now or at a later date. Because each copyright matter where the Fair Use Doctrine may be applicable is examined on a case-by-case basis, you will need an attorney’s legal expertise to help you navigate whether liability can be avoided under this exception.