To Higbee or Not (To Be) - How to respond to PicRights / Higbee?
If you are reading this article, you likely received correspondence (either a letter or email) from a company named PicRights or an attorney’s office named Higbee & Associates concerning images that were found on your website. Despite what you may have read online, these correspondences are not spam or scams; they should be taken seriously. Don’t worry, we are here to help.
A Little Background:
From PicRights to Higbee & Associates
Before responding to emails or letters from either PicRights or Higbee & Associates, it is helpful to know a little about both and how they work together to escalate their clients’ copyright claims.
PicRights is a company (not a law firm). PicRights is based in Switzerland and provides online tools for its clients to monitor and monetize third party use of its clients’ copyright protected images, which its clients purportedly own. PicRights clients include companies such as The Associated Press, Agence France, The Canadian Press, and Reuters.
Once PicRights identifies an image online that matches an image provided to it by their client, it notifies that client of potential infringement. That client then decides whether to enforce its purported copyright claim. If the claim is pursued, PicRights takes further action. In the cases we have seen, PicRights sends correspondence to the person who posted the image demanding an amount of money to settle the copyright dispute.
If you have received correspondence from PicRights, you may have thought that this correspondence is a scam. Many do. It is not. And your failure to respond could result in further escalation of the claim. Enter Higbee & Associates.
Higbee & Associates is a California based law firm. They represent clients in the U.S. in connection with copyright infringement claims. PicRights uses Higbee to escalate its copyright infringement disputes in the U.S. The amount demanded by Higbee will often be higher than the amount demanded from PicRights. And Higbee is not always the easiest to deal with alone. Still, correspondence from Higbee is not spam or a scam. It should be taken seriously.
Is this a legitimate copyright infringement claim?
Based on our review of letters from PicRights and Higbee, there is no reason to believe that the copyright infringement claims they assert on behalf of their clients are false. Still, you should review your own use of the image and investigate that image itself to verify that the information provided by PicRights and Higbee is correct (and not a mistake).
For example, do you remember licensing the image? Did you use the image in a creative and transformative way? If so, your use may be lawful.
Also, is there a U.S. copyright registration that either PicRights or Higbee can provide to evidence their clients’ copyright ownership in the images? If you search Google for the image, can you find information about the image or a news article with the image along with the name of the copyright owner? Is that listed copyright owner the same as Higbee’s client? The more you know, the better you will be able to discuss the dispute with PicRights or Higbee.
Now what?
Assuming there is no reason to believe PicRights’ or Higbee’s clients made a mistake. What do you do then? Well, if 1) you posted the image on your website without a license; 2) your use of the image was not creative and transformative; and 3) there is a U.S. copyright registration that evidences that PicRights’ or Higbee’s clients own the rights in the image then settling the matter may be the better option. When I say “settle”, I don’t necessarily mean paying the entire sum demanded in PicRights or Higbee’s correspondence and blindly accepting the Release provided (which has in the past contained at least one troublesome provision). Both the amount and terms of Release are negotiable and you should evaluate these based on the facts of your case.
Of course, instead of engaging with PicRights or Higbee, you could always ignore the claim; and yes, PicRights or Higbee’s clients may chose not to take any further action. That is true. Still, there always remains a risk that you are the exception to the rule. How much risk do you feel comfortable taking? That is the question.
We are here to help…
We are here to help. During our reduced fee initial consultation, we review the correspondence provided by PicRights or Higbee, evaluate the risks, and provide you with our recommendations on how best to proceed and a “plan of attack” to do so. If you fill out our form below, we can get the process started.