The Rise of Copyright Infringement for Photographers
The Law Firm of Higbee & Associates has taken an unusual path to solve large scale copyright problems for some of the biggest in photography.
Higbee & Associates has extensive experience solving other types of large scale legal problems for clients in the past, and they are now using their expertise to help photographers defend themselves against copyright infringements.
The internet has created a boon for the demand for photos. Ironically, many photographers and photo agencies are struggling to survive. A large part of the problem stems from how easy it has become for people to engage in copyright infringement by simply copying photos from the internet and using them without paying the photographer who took the original photo. The direct consequences to their livelihood are obvious.
Sometimes the infringement is a double-edged sword. Large media companies, who both are frequent buyers of photos and employers of photographers, are downsizing as they lose market share to smaller publishers. Many of those smaller publishers are getting a competitive advantage as they keep their costs down by engaging in copyright infringement.
The Law Firm of Higbee & Associates has taken an innovative approach to help copyright holders and has already had some impressive success. Higbee & Associates represents two of the three biggest news agencies, The Associated Press and Agence France-Presse. It also includes high-end photo agencies, stock photo agencies, and many individual photographers.
Their success stems both from lessons learned in a wildly different area of law as well as the founder’s unique background. The law firm is not without its critics; namely, many vocal infringers who do not like being on the wrong side of Higbee & Associates’ copyright enforcement efforts.
We spoke with Mathew Higbee, the law firm’s founder, to ask about Higbee & Associates’ rapid growth, the sources of their success, the challenges their unique copyright practice faces, and the firm’s future.
You grew your first practice, which was criminal record expungement and rights restoration, into one of the nation’s largest practices in that field. How do you go from doing that to copyright law?
The areas of law are vastly different between RecordGone.com and our copyright division. But, the workflow of both practices plays to our strengths, which centre around building scalable workflows and branded customer service. There were a few other areas of law that fit our workflow, but copyright was easy to embrace because we love photography and visual arts. My dad is an art dealer and my mom was an art teacher.
That seems a bit different than how most law firms evolve.
I don’t know. I think most try to play to their strengths. What we consider our strengths are probably different than what most law firms do. Not many law firms build their own software to create processing efficiency, but that has been instrumental in the success of every division we have launched and has been missing or gone awry in any of our divisions that have floundered.
When did you start your copyright practice?
Our first experience in copyright was around 2009. We got serious about it and launched the division in the summer of 2014.
US law puts the onerous on copyright holders to police their work.
Your client list includes some of the biggest agencies in the world and some of the most famous names in photography. How does that happen in less than 5 years?
The simple answer is that Higbee & Associate is having success solving problems in a way and at a scale that nobody else is right now. Our service offering is really unique. We help our clients register their images, we provide free reverse image search, and we provide web-based software that makes it really easy and super efficient for them to work with us.
US law puts the onerous on copyright holders to police their work. That is a huge challenge. Most firms that handle copyright cases do a good job of taking the big cases— say the $20,000 and above range, but that only solves a small part of the problem for a photographer. Solving the bigger and more critical part – the individual smaller infringements – is a massive challenge. You have to create efficiencies on all sides and at every point if you want to be successful in that area.
What do you mean by all sides?
Making it efficient for our law firm is the obvious side. But we also have to make it efficient for our clients to be able to afford to pursue these smaller claims. We create tools and workflows that make it fast and easy for our clients to both find copyright infringements and to engage with Higbee & Associates. We also try to make it easy and efficient for infringers too.
Why do you make it easy for the infringers?
We want to make it easy for someone who has done the wrong thing to fix it. Ideally, we want the infringers to become good consumers who properly license images – hopefully, our clients’ images. Not to mention we have had multiple infringers become clients.
What is the typical response from the targets of your letters?
The overwhelming majority of recipients know they have done something wrong, whether unknowingly or not, which makes it an easy conversation about how to properly compensate our client. Most approach it as a business decision. However, there are some, that through either ignorance of the law or the lack of perspective, think what they did is okay and they are outraged at the idea of having to compensate the photographer. Those are the ones that usually end up getting sued by us or one of the other law firms we refer cases to.
US law puts the onerous on copyright holders to police their work. That is a huge challenge.
Do photographers have reservations about enforcing their copyrights?
For a long time, copyright infringement required getting the negatives or making low grade copies of prints, so copyright infringement was rare and not a big concern for many photographers. However, things have changed in the last ten years. A perfect copy is often a right-click away. Copyright infringement is not just threatening livelihoods and businesses, but threatening to disrupt the market forces that make it worthwhile for artists to produce their work or for publishers to distribute their content. It impacts our smallest and our biggest clients. Very few copyright holders can afford to have reservations about enforcement at this stage of the game. It is literally do-or-die time for some of them.
It does not take long to find people online who criticize you or Higbee & Associates for being overly aggressive. How do you deal with the criticism and do you think it is fair?
There is a pretty long and somewhat notorious list of law firms and companies that have failed at the job of large-scale copyright enforcement. From day one, we were determined not to make the mistakes they did. High on the list was not being too heavy-handed or unfair. I am proud of the job we have done, but we are always looking to find ways to be better.
A lot of the criticism is simply a form of denial being expressed by businesses whose actions have them in an uncomfortable or embarrassing position, or from people who lack insight or understanding of the law. Occasionally, though, some of the criticism has merit and offers insight on how we can do things better.
Not to mention we have had multiple infringers become clients.
How do you avoid being heavy-handed when pursuing copyright claims?
We start by only pursuing commercial users, so we can presume there is both an increased level of sophistication as well as an expectation that a business will be liable for getting things wrong. The biggest challenges stem from the fact that we know very little about the claim or other possible infringements during pre-litigation negotiation, and our clients are offering a complete release of liability. We have seen cases with one or two unregistered images evolve into much bigger cases. So, we think the fairest thing to do is caution the business about what is possible and advise them that they should consider hiring an attorney or work with us to resolve the claim out of court. But even citing the law is tricky. US copyright law has some large dollar amounts for damages right in the statute, which is tough to reference without scaring people.
Speaking of challenges, what is the biggest challenge Higbee & Associates’ copyright division faces?
Keeping up with the demand for our services. We believe the old saying “if we do not take care of the client’s needs, someone else will.” That saying is not just about losing clients, but also about gaining market share. So, we apply it to potential clients too and never turn away a potential client.
So, we think the fairest thing to do is caution the business about what is possible and advise them that they should consider hiring an attorney or work with us to resolve the claim out of court.
Is there a point where you will say you are big enough or too big?
Anything is possible, but saying “no mas” goes against our nature. We like the challenges that come with growth, especially creating jobs and building our company culture.
How big of a role does company culture play at Higbee & Associates?
We have been heavily influenced by companies that have shown the wisdom of focusing on culture— especially Zappos. In fact, new members of our management team go to Zappos headquarters for training. We have even followed their lead in moving parts of our workforce from California to Las Vegas.
US copyright law has some large dollar amounts for damages right in the statute, which is tough to reference without scaring people.
How does the culture of an online retailer apply to a law firm?
The theories probably apply to any company, though how they are implemented would of course vary. We implement them in our own way. For example, we pay our employees to rescue dogs, and allow them to bring them to work. There are usually five or six dogs in the office on any given day. We celebrate a lot of holidays, including some unique party traditions, like Dean Martin’s Birthday, the Pirate Olympics, and Falco Friday. Unlike a lot of areas of a business, there is very little risk of investing too much in culture.
It seems that your previous career as a software developer has had an impact on your law practice. Did you see that coming when you went to law school?
No, I actually thought my experience in politics, managing political campaigns and working on the Capitol Hill would be more relevant. But my plan was to always have my own practice, so it is not a surprise that the same software development skills that helped me to create software to manage political campaigns, were able to be used to build tools to manage legal cases. One of the great things about a law degree is that if you remain open to the possibilities, your career can go wonderful places you had never expected and you can find new ways to solve problems. I did not know what expungement was until a client asked if I could do it, back in 2006. I even did it on trade— but that is a whole different story. We have now done about 22,000 of them. Something like that does not happen unless we are open to doing something new and are excited about solving a problem in a new way. We always want to stay dynamic— in fact, dynamic is one of the 18 words in our mission statement.
Do Higbee & Associates have another practice area in its sights?
We are open to it, but if I had to guess, I think the next project will be tech-related or a non-profit to support visual arts— or, maybe a horse rescue. Anything is possible.
Santa Ana, CA 92705
The Law Firm of Higbee & Associates was founded by Mathew Higbee in California in 2006, the year after he graduated law school at the University of Utah. The firm has offices across the country, but most of the 90 employees are in California, Nevada and Utah.