New challenges for Mathew Higbee and his clients

by Paul Alan Levy

About a month ago, I blogged about a new variant in Matthew Higbee’s high-volume copyright enforcement practice on behalf of photographers, in which he was pursuing the hosts of online forums where users had posted copyrighted photographs or deep links to copyrighted photographs, taking advantage of those hosts who had failed to preserve their DMCA immunity by not registering a DMCA agent. (Note his response in the comment section, which does not merit a reply).  I gave Higbee a chance to withdraw his client’s claims; however, Higbee had previously told me that my arguments about non-liability for infringement in an identical case were “delusional,” so we decided to give Higbee a chance to explain to a judge in what way these defenses were delusional, that is, in response to an action for a declaratory judgment.

I confess that, in filing that lawsuit, I wondered whether Higbee had ever warned Luong that he would not necessarily get to make the final decision whether his demand would end up in litigation, in that the very aggressiveness of Higbee’s demand letters, coupled with persistent nagging from paralegals to offer a settlement or face immediate litigation, sets up his clients to be sued for a declaratory judgment of non-infringement. That speculation proved prescient, because Higbee’s immediate response to the lawsuit was to offer to have his client covenant not to sue Schlossberg for infringement. Higbee also told me that he had offered to defend Luong against the declaratory judgment action for free.  It appears, however, that even such a generous offer was not enough to hold onto Luong as a copyright infringement claimant in this case. A settlement agreement has been signed; because there is no longer a case or controversy, the lawsuit has now been dismissed.  Many thanks to Phil Malone and to Stanford third-year law student Alyssa Picard for their work on this case; and thanks for Kevin Schlossberg for having the gumption to stand up to Higbee's bullying.

Similar Cases

Since that blog post, I have got wind of several other situations in which Higbee has claimed large amounts of damages against forum hosts.  We are considering which ones would make the best test cases.  

My last blog post about Higbee mentioned another case in which he had made a demand against the host of a forum about United States elections, where a user had posted a deep link to a photograph by another of Higbee’s stable of clients, Michael Grecco. Higbee has sued on Grecco’s behalf on a number of occasions, and Higbee told me that, unlike Luong, Grecco was a true believer who was looking for opportunities to pursue Higbee’s copyright theories in litigation.  Higbee said that he was going to be talking to Grecco to confirm that he wanted to litigate against the election forum. I could not help suspecting at the time that Higbee was blowing smoke to show what a tough guy he is.  That was a month ago, and yet so far as I can tell, Higbee has not yet got around to talking to his client about the subject. I have to wonder just who it is that wants to litigate Higbee’s legal theories.

Indeed, I have asked Higbee whether he warns his clients generally that they can be sued for a declaratory judgment of non-infringement even if they have never given Higbee authority to go to court on their behalf. He told me that he is too busy to address my questions.

Golden v. Grecco

Such issues might come up in discovery, it it comes down to who is responsible for the payment of attorney fees in a declaratory judgment action recently filed against Michael Grecco.  That case involves another demand letter from Higbee, this time to an indigent young man named Lee Golden who lives in Brooklyn with his parents and blogs about action movies.  Because Golden included a Grecco photograph of Xena the Warrior Princess, Higbee sent his typical aggressive  demand letter, setting $25,000 as the required payment to avoid being sued. Golden responded with a plaintive email, apologizing profusely, saying that he had no idea about copyright issues, that he had taken down the photo, and that he would never infringe again; he also explained that because his only income came from working in a neighborhood store, he could never pay such a license fee. A response from a Higbee paralegal said that an apology was not enough, that Golden had to pay money, and that if $25,000 was too much Golden should say what he was willing to pay. At that point, attorney Eugene Strupinsky stepped in to provide pro bono representation, explaining the basis for a fair use argument. But the Higbee firm, rather than becoming more reasonable, now  doubled down, returning to its demand for $25,000 and threatening to seek $30,000 or even $150,000 if the case had to be litigated. Higbee even sent a draft infringement complaint, threatening to make Golden defend himself in the Central District of California even though many of Higbee’s actual lawsuits are filed in the jurisdiction where the alleged infringer lives, perhaps because Higbee wants to avoid having to litigate personal jurisdiction.

But Golden’s counsel likely did not know this, so Strupinsky and his partner Joshua Lurie have filed suit on Golden's behalf in the Eastern District of New York, seeking a declaratory judgment of non-infringement. We will see how anxious Michael Grecco is to litigate this case.

My guess is that, at the same time, other erstwhile Higbee clients will be watching with trepidation, worrying about whether they, too, might get sucked into litigation just by allowing Higbee to send overreaching demands on their behalf.

0 thoughts on “New challenges for Mathew Higbee and his clients

  1. JLE says:

    You’re doing a great service here. Higbee’s team has come after my family as well. My wife had a now-defunct LLC and blog. THe blog was mostly informational– I think she threw up some Google ads and I doubt she cleared $50. Unfortunately, a guest blogger submitted a photo (in 2014) that she was not licensed to use. Turns out that it was a stock photo. In 2018, my wife received a demand e-mail from Higbee for $5,000 or face a lawsuit. Since then, we’ve come across a few problems that make it clear that Higbee is a troll operation:
    1. My wife’s blog was operated by an LLC, and the paralegal sending the demand emails doesn’t seem to know what that even means. At best, her responses show that she doesn’t read the emails sent to her. The latest mailing–a sample district court filing–still makes an allegation against my wife and the website address rather than the actual LLC name. It’s just… odd.
    2. The copyright registration is for the stock photo company, not for their client, who is the original photographer. Obviously, this is the biggest problem they face in a suit. They have a client who they say wants to pursue this who must not know that he isn’t the copyright owner.
    3. They seem to understand from their earlier correspondences that this was not a willful infringement, and therefore would not be subject to the max $150,000 statutory damages. Yet they threaten it anyway, again.
    4. The demand of $5,000 is wholly unreasonable, considering that a 5 year website use copyright fee is $300.
    I’m an attorney, so I can at least navigate this stuff, but it’s awful and a mental burden I don’t want to deal with. I can’t imagine how harrowing it is for others.

  2. M. Higbee says:

    Thank you for the offer to comment.
    The thought that any of our clients are watching the Golden case, let alone with any trepidation, shows a significant disconnect from reality. So too is the thought that a declaratory action is a new challenge for us.
    We go against some of the best copyright attorneys in the country every day. I will let you figure out why in the five years of our very vigorous enforcement of copyrights we have only faced a handful of declaratory actions.
    As for the Golden case, Mr. Golden was running a business that involved generating advertising revenue from content, which included my client’s copyrighted work. We fight for artists’ right to be compensated by businesses who use their work to make money. Mr. Golden’s website looks quite successful both in the quality of the content and the quantity of new content and advertising. My client did not drop the matter because our requests for evidence to substantiate the claim of financial hardship were not fully met and the asset search was inconclusive.
    As for the demand amount, the damages afforded by copyright law take into account licensing history. Mr. Grecco’s licensing history and other factors supported his demand. Courts and arbitrators have awarded him numerous awards of more than $50,000. A couple of which can be seen at Furthermore, an infringer always has the option to make a counter offer.
    You know very well that I did not say I was too busy to respond to your questions, but rather, that I would answer as soon as I was back in the office, which was apparently too long for you to wait for this fast moving news story of national significance. Why you feel compelled to twist facts, ignore reality and present one-sided stories is beyond me. Also, my previous quip that used the word delusional was not about your legal arguments.
    We are proud to represent some of the world’s greatest photographers and most prestigious and influential agencies. We are always eager to talk about what we do and how we do it.

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