Have you ever heard of the Law Firm of Higbee and Associates? It’s okay if not, but for some, the name might sound all too familiar, and not in a positive way.
According to its website, the firm focuses itself on fighting copyright claims, providing “a wide range of copyright related services designed to help creative professionals maximize their potential and protect their livelihood.”
However, Higbee and Associates seems like it would benefit more from monetizing upon infringement claims rather than actually solving them, as the law firm sends allegedly falsified copyright claims through an email scam.
Any one of its letters usually says that there is still time to settle the issue before it gets taken to court; they also include attachments of the media that the infringement claims are about, which seems normal. What isn’t normal is how they tend to approach people without legal representation. With this, they’ll include a description of the Copyright Act and how statutory damages can reach up to $150,000 if it is not taken care of.
Furthermore, some letters that people received from the firm have included “infringed” photos that already come from free-use websites, so anyone can use them without being liable for copyright.
Needless to say, Higbee and Associates scare people by imposing them with large prices to pay, but with little information to back their claims (and themselves) up.
Trolling the Public
Several people have looked into Higbee and Associates and all of them came out with the same outcome: the firm is solely a “copyright troll” that enforces copyright to earn a percentage of payments before ever engaging with alleged infringers.
Mike Masnick of TechDirt covered the law firm a couple of times over the last few years. In 2015, he focused on Rich “Lowtax” Kyanka, founder of comedy website Something Awful, and discussed Kyanka’s first run-in with Higbee and Associates.
The firm sent a letter to Kyanka, which claimed that Something Awful used a still image of Scarlett Johansson’s film Under the Skin and infringed on their “client’s” copyright after they used it in a review.
When it mentioned their “client” in the opening sentence, they never named the client, which is usually a typical thing for these kinds of letters to include. Masnick did some research on other sites that used the image and found that it probably came from INFPhotos, a stock image site for celebrity photographs. Masnick realized that INFPhotos was probably who the “client” was, but why only go for Something Awful? That answer, no one knows.
A Second Go At Something Awful
Now, notice how I said that Masnick talked about Kyanka’s first letter from Higbee and Associates. Yes, that does, in fact, mean that the law firm hit Something Awful with a second lawsuit.
Three years later, they sent Kyanka—who had since taken over the website’s legal department— another letter. This time, they claimed that they used an unauthorized photograph of someone dressed up as Adolf Hitler, but the image was not used for an original Something Awful post.
Instead, a Something Awful member posted the image in a forum thread. Again, they threatened Kyanka by saying that failure to act would result in a fine of up to $150,000, but he ended up posting his own response to the firm on his website.
Here’s a bit of what he said:
“This garbage d*cked law firm generates nearly $5 million a year by encouraging photographers to sign up with their company, then performing a reverse image search for anything matching their client’s submitted photos. An automated system then flags the suspected offending site, spits out a super scary legal threat based off a template, and delivers it to the site owner.
Upon receiving the notice of possible legal action, many victims freak out and pay these idiots the stated arbitrary amount of cash, under the looming threat of being taken to court for $150,000. Higbee and Associates operate one of the biggest dirtbag law firms to ever pollute the internet, preying on fear and dealing in bulk.”
Knowing The Game
In 2019, lawyer Carolyn Homer represented Daniel Quinn, a freelance web designer and science fiction blog writer, after Higbee and Associates hit him with a lawsuit.
The firm claimed that Quinn used a photograph from The X Files in one of his blog posts that belonged to photographer Michael Grecco, but Quinn revealed that he found the Creative Commons photo on Flickr. Although he couldn’t find the original posting of said image, he offered to take it down and did so accordingly.
However, the lawyer representing Michael Grecco, Tuesday Mauldin, told Quinn that Grecco wanted to recover the license fee that should have been paid prior to the photo’s usage. When Quinn asked the price of the fee, Mauldin said $20,000, and he felt incredibly uneasy.
Once Homer looked into Quinn’s case, she knew that the firm was nothing but a troll. She also listed three major defects to show that the letter made no sense.
The Numbers Don’t Add Up
When it comes to the pricing of payment to Higbee, Homer said that a license to publish individual photos ranges up to $1,000 and typical litigation damages go from $200 to $2,000.
“At this exact moment in time, a photograph from Michael Grecco’s same X-Files photoset is available to license for $1800,” she said. “Higbee’s settlement demand price for a single Grecco photo is facially absurd.”
The Timing Doesn’t Match
In addition, Homer said that there was no possible way that Higbee or Grecco could file a copyright claim against Quinn because of the timing.
“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.”
She also mentioned Quinn used a photo published 23 years prior to him using it for his blog post, and as no one registered the photo until eight months after said publishing, it became ineligible for any claims.
Does Grecco Own The Photo?
Lastly, Homer touched on whether or not Michael Grecco owned the rights to this photo. When she found that the photo came from a 1993 The X-Files promotional shoot, the series itself and its trademarks should have belonged to Fox.
“A reverse-Google-image-search revealed that Google has delisted links to the 1993 Michael Grecco X-Files photoset,” Homer revealed. “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.”
So, What Do You Do If Higbee and Associates Contacts You?
According to Darren Heitner of Heitner Legal, if you receive a letter from Higbee and Associates, do not ignore it.
In his words, ignoring their letters is the worst thing that you can do if you find yourself in receipt of one of these demands. If you choose to not respond to them, then litigation might actually be taken against you, and you will end up paying more than you wish in order to defend yourself.