It’s a day like any other. You’re working on your business. You’re in the zone.
And then, you get a letter.
In this letter, it says that you’ve infringed on a copyright by posting some photo to your website back in 2016. And that letter is demanding $2500 in licensing fees.
What on Earth?
You laugh off the initial shock. This has got to be a scam, right?
While it’s [in my opinion] a predatory practice, it’s not* a scam. I include that asterisk because it’s not always entirely accurate, either (more on that below).
Alarmingly enough, I’ve seen a BIG spike in the number of claims and demand letters sent by groups like PicRights, FoodPhotos, Agence France Presse, and law firm Higbee & Associates.
Let’s talk about what you should do if you receive one.
[Note: You can also hear my thoughts on PicRights notices at the Lead Balloon Podcast, available at Apple Podcasts, Spotify, or anywhere you get your podcasts]
Is PicRights Legitimate?
In its entirety, they aren’t a scam.
But, in my opinion and experience, they aren’t always truthful and forthcoming, either.
PicRights is a “copyright enforcement and claims resolution” organization. They use 🤖 bots to crawl the internet and reverse-image search for images belonging to their “clients” or individuals who they represent— or allege they represent. They do represent numerous photographers, including some AP and Reuters groups.
However, it seems that sometimes the individual or company who owns the copyright is not even involved. Allegedly, PicRights collects fees on behalf of the photographer without explicit engagement (note: this is based on anecdotal evidence and my own personal experience).
These bots comb through the annals of the internet, akin to Google’s search indexer. It finds everything, even things that have been taken off the main website or aren’t linked on your main website.
Then, once they find the image on your server, they send a demand letter for thousands of dollars claiming unauthorized “use” of the images. If you don’t pay them, they threaten to sue for $30k, $150k, or more. These numbers are based on the damages (read: money) set forth in the copyright act.
They provide a claim number and invoice, and ask for “prompt payment” to settle the claim. Otherwise, they say they will escalate the matter to their legal counsel.
Enter Higbee and Associates.
Is Higbee and Associates a Scam?
Higbee and Associates is the law firm representing/ working with PicRights and other various organizations like Agence France-Presse.
Once PicRights escalates the issue— typically because you’ve ignored their notice or told them to leave you alone— they send it to Higbee & Associates.
Higbee & Associates then sends you a demand letter via email and/ or snail mail. They demand more money and threaten to file suit for “up to $150,000 in damages.”
And they aren’t lying. They will file. They have done it in the past. And they aren’t totally bluffing.
BUT….they also might not have the rights they claim they do. Their letters aren’t always telling the entire story, and they often — in my experience— overstate their rights and the remedies available to their clients. They may not have the right to claim those “big money” damages.
[In my opinion] they can be very nasty and threatening. [In my opinion] they are deceptive. [In my opinion] they are misleading. [In my opinion] it’s a predatory practice that exploits small business owners using outdated copyright laws that haven’t quite kept up with the internet.
But that doesn’t mean it’s a scam. In fact, many times, they do have the legal right to demand some sort of compensation.
But I’ve also seen instances where they don’t have that right. And in my opinion, that’s not forthcoming behavior.
Should I Pay PicRights?
You wouldn’t just pay a bill that shows up in your inbox without figuring out what it’s for, would you? In the same vain, before evaluating the veracity of their claim, do not pay anyone for anything– including PicRights.
In the year 2023, when internet scams run amok, we’re not going to simply pay people without doing our due diligence on those demands.
Additionally, in my professional experience, I have had instances where PicRights and/ or its representatives at Higbee and Associates do not possess the rights they allege.
With the permission of the client, I will share that recently, that client was hit with a PicRights (and Higbee) demand letter. We, in return, demanded to see the deposit copy (the documents that go to the copyright office to show what you’ve claimed rights over).
They refused to send us that information. Instead, they wanted us to blindly pay them for a license for a property their client allegedly owned.
We refused, and pulled the deposit copy ourselves.
Now, this was expensive. To pull a deposit copy is $400-600 average, and sometimes, the deposit copies are not available. That cost is not lost on me. However, it can be worth it– and it was in this case.
The deposit copy came back and guess what? The photograph over which they were asserting rights? Nowhere to be found. It was not part of the claimed copyrighted work. The photo they were demanding over $2000 for was nowhere to be found in the copyright registration they were touting. And remember, a registration is required for a lawsuit in the US.
After this experience, I became extremely skeptical of their claims, and will always require a deposit copy pull before moving forward with settlement. I always ask for a deposit copy.
What should I do if I get a letter from PicRights?
Cut back to scene one, where you’re sitting with that demand letter in your hands. You’re sweaty and stressed. I get it. So what now?
- If you’re contacted by any of these organizations OR receive communications from them, DO NOT ENGAGE in a back and forth with them.
- Don’t sign anything without having a lawyer look at it.
- Don’t pay anything without having a lawyer look at it.
- Don’t admit, deny, or put any dates, uses, or other admissions in writing. This includes saying “this is fair use!” or “I got it off of Wikipedia!” Remember: in this context, “everything you say can and will be used against you!”
- DO NOT think they will just go away. These are automated and/ or high-volume letters that are part of a very well oiled machine, and they will more than likely continue to follow up.
- DO ask for their copyright registration certificate.
- DO sit down and write out the following information:
- Where you found that image (if possible)
- The first date it appeared on your website, blog, or social media
- The last date it appeared on your website, blog, or social media
- The context in which it appeared on your website, blog, or social media
- If it is still available on your website, blog, or social media.
- If the image is displayed via an RSS feed or an embedded feed of any kind.
- DO Get a lawyer. Make an appointment with one who practices copyright law. They will want to know those dates that I posted above, because copyright is a very fact specific practice.
- DO NOT panic.
IN THE FUTURE…..
- Always use images that are properly licensed and don’t just grab screenshots off of Google images.
- Audit your website. If you don’t know where every single image on your website, blog, and social media came from, take it down. Then, delete it from your server. Crawler bots can find past use and locate those old files. Instruct all of your social media managers, web designers, and content creators to use only approved sources for images.
- Consider indemnity clauses in agreements with third party designers + creators. Remember: not knowing something was infringing isn’t considered an excuse! If your web designer uses a non-licensed photo, you’re still on the hook for infringement. Indemnity clauses can help make sure they repay you for that loss.
Have you received a PicRights demand letter or a communication from Higbee and Associates? Contact us for a non judgmental evaluation of your situation. We’ve all made mistakes– let us help you!