Lawyers Threaten SomethingAwful For Using Photo In Movie Review
from the that's-just-something-awful dept
Rich "Lowtax" Kyanka is certainly no stranger to ridiculous and misguided legal threat letters -- and it appears that he's now got another one. On Monday, he posted to Twitter an image of a threat letter from law firm Higbee & Associates, claiming that this April 2014 review of the Scarlett Johansson film Under the Skin is infringing on Higbee & Associate's "client's" copyright because it includes a still image from the film.
There are some oddities about the letter itself. First off, it doesn't appear to ever name the client in question. Actually naming the client/copyright holder is pretty typical with these kinds of letters. They usually note that they are representing a particular client, and make it clear who holds the copyright to the work in question. Yet, here, Higbee & Associates doesn't do that. The letter also makes some weird assertions that suggest whoever wrote the letter isn't all that familiar with copyright law. For example, there's this:
As the infringement occurred on a company website, the company is liable for the unauthorized use in the absence of a valid license, including cases in which a website designer, employee, intern or any third party is responsible for the inclusion of this image on your website.That, of course, completely ignores the DMCA's safe harbors which actually say the opposite: that a service provider can be protected from liability from actions of third parties, under some specific circumstances (which may or may not apply here -- but it does seem odd that the Higbee lawyer seems to not even understand this).
In fact, looking at Higbee's website, almost everything feels a little... off. It's strange enough that Higbee puts "A National Law Firm" in its own damn logo, as if that's a key selling point, but its website reads like what non-lawyers would think a law firm's website should say.
We are a national law firm that prides itself on providing exceptional value by delivering high quality legal representation, the best customer service, and prices that are typically 35% below industry standards.Well, okay then.
We offer flat fee pricing on most services so there are no bad billing surprises. We have an online case management system that allows you to see up to the minute details on your case. Most of the cases we handle even have a money back guarantee. Our dedication to our customer service is so strong that it has earned us "A+" ratings with the Better Business Bureau for 7 straight years.
It seems likely that the unnamed "client" here is INFPhotos, which is a stock image provider of celebrity photos. Some of the other stories that have used the same image cite INFPhotos, so chances are that's who's licensing the photo. Given all that, perhaps there's some sort of legitimate claim buried deep behind the weird threat letter, if the image is not actually from the movie itself, but from a separate photographer. Even so, it seems like a bizarre reason to go after SomethingAwful, and one that's not likely to end up going particularly well for Higbee & Associates.
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Filed Under: copyright, fair use, movie review, rich kyanka, scarlett johansson, under the skin
Companies: higbee & associates, something awful
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This seems to be exactly the effect that Higbee & Associates is going for. Are you sure it isn't a viral marketing stunt or ingenious self-promotion?
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This doesn't mean that you can't file a suit where the alleged infringer claims fair use, but it does mean that you cannot ignore it. You can't even ignore the possibility of it without risking violation of Rule 11(b)(2).
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What I think you are saying, in short, is failure to consider 'fair use' or Section 230 of CDA (and other factors) prior to filing a lawsuit is a violation of Rule 11(b)(2) of the Federal Rules of Civil Procedure.
But then this...That's pretty cool. Such sanctions need to start being handed out like candy!
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Because when dealing lawyers, you're going to need plenty of lube.
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But per 17 USC 106 and 107, the exclusive rights of copyright which are the basis of the suit only extend to the point where fair use applies. This means that a good faith prefiling investigation will have to consider whether or not the defendant infringed at all. If there's a solid fair use argument, it is possible that the defendant didn't infringe at all, which raises Rule 11 questions if the case is filed. Again, the case can be filed despite a credible fair use claim, but the issue cannot be utterly ignored by plaintiff just because it is inconvenient. All that said, I doubt you'd see serious sanctions, which are not a trivial matter.
But if I saw a nasty letter of this sort, and I chose to reply with a nasty letter, I might remind counsellor of their Rule 11 obligations to the court given that they have flatly stated an intention to file. I'd also point out that the language in the letter could support a lawsuit by defendant seeking a declaratory judgment, if defendant wished.
The lawyer who wrote the letter (and their superiors who approved the letter, if any) acted foolishly here. You catch more flies with honey, you know? And not all fights are worth fighting.
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Please stop cutting and pasting, you're leaving holes all over the Internet. You could copy and paste, and leave the Internet intact.
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Oh no, no, no. Copying is ILLEGAL!
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You're kidding, right?
"Again, the case can be filed despite a credible fair use claim, but the issue cannot be utterly ignored by plaintiff just because it is inconvenient."
Recent legal history would seen to indicate otherwise.
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http://www.recordgone.com/
Seems they are now moving into the speculative invoice market too.
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Am I missing something? Because I don't see how 11(b)(2) even remotely relates to the content of a threat letter. They relate to pleadings filed in a federal court.
The level for frivolity of suit based on 11 is truly stupendous - the fact that they even alleged that an image exists and is owned by their client rises to the bar. That a fair use defense may be successful is wholly and utterly irrelevant - think about this. You are basically alleging that anytime there is a successful fair use defense then filing a copyright suit would be grounds for an 11b2 - and that is not only factually, demonstrably, obviously wrong, it is also insane.
Or am I missing something?
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Yes. I'm not suggesting that the letter violates Rule 11. But the letter claims that failure to respond "will result" in their recommending that an infringement suit be filed. Actually filing (and remember, the client doesn't know from Rule 11) would violate the rule. What actually upset me was that the attorney writing the letter should not use such absolute language, even in a nasty letter.
The level for frivolity of suit based on 11 is truly stupendous - the fact that they even alleged that an image exists and is owned by their client rises to the bar. That a fair use defense may be successful is wholly and utterly irrelevant - think about this. You are basically alleging that anytime there is a successful fair use defense then filing a copyright suit would be grounds for an 11b2 - and that is not only factually, demonstrably, obviously wrong, it is also insane.
Not at all. What I'm saying is that when you file an infringement suit, you are obligated to claim that there has been an infringement pursuant to existing law. The statute clearly states that fair uses aren't infringements. Where there is a case such as this where there is very clearly a fair use issue, the plaintiff must address it and claim (subject to Rule 11) that the use is not fair under existing law or a nonfrivolous change in the law.
Merely losing is not a violation of Rule 11; there's always at least one loser in any case that gets to a final judgment. The violation is failing to stop and think about the facts and law (as reflected in the language of the pleadings, etc.). The letter, if we're to take it at face value, says that they will recommend filing in the absence of any other action. There's no stopping and thinking going on.
A lawyer who does stop and think about the unauthorized use of a production still or single image from a film used in conjunction with a review of the film would not, I think, recommend suing without at least a good plan for overcoming the inevitable and likely successful fair use argument by defendant.
I don't think that Rule 11 sanctions would be likely, but the attorney here is certainly not going to live up to their Rule 11 obligations if they recommend filing suit, get the go-ahead from their client, and actually do it. At least not based on the letter in this case.
You're apparently a lawyer, too. If you were the lawyer, the alleged infringer doesn't reply, and all you have to go on is the factual material above, would you go ahead and file if your client told you to? I wouldn't. Not because it's a loser, but because plaintiff won't have a leg to stand on unless it's a default judgment.
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I am a lawyer, and thanks for your thoughtful response. I do transactional IP and I'm typically only ever on the receiving end of litigation - I like building things, not taxing other businesses - so I was a bit concerned by this.
It seems to me that in a better world, Rule 112b should function in the exact way that you say it should - that a plaintiff should have to address fair use when filing. However, from what I have seen - and again, given that I don't litigate often - this just doesn't appear to be the case. 107 is an affirmative defense, and I've yet to see anything that puts the burden on the plaintiff in any way to mention this in filings or otherwise.
Clearly, I wouldn't be recommending my clients to file stuff like this anyway - it is bonkers and an invitation for a Striesandian nightmare - not just for the client, but for the firm. I looked at the attorneys in the firm, and they all have legitimate credentials and most of them have the gumption to have gotten admitted in multiple states, some of them a whole bunch. Yet this letter is so, so off the mark it makes me wonder - I do not think this is going to wind up being positive publicity for them.
In any event, as far as I can tell, the way the world of IP infringement works is this:
1. If it is not covered by CDA230 or DMCA512, go to (2).
2. If you own a ©, and it is on someone else's site, sue them.
3. The ∆ now has to argue fair use. This will be many, many thousands of dollars in fees, possibly more, to even get to the point where a fair use argument is heard, say, in a 12b6.
3a. Pay a small settlement and take down the image to avoid paying the thousands of bucks that go into (3).
Now, given that it is SA and Lowtax, I think they will fight this - but from the perspective of π and Higbee law, I can see how they could slap around all sorts of blogs, forums, and other unsophisticated parties and have a nice little practice getting low four figure settlement and release payments left and right. It's bullshit, but that is how copyright law works as far as I can tell.
In a better world, I'd like to see a presumption of fair use in copyright, and part of the pleading would include not only an allegation that a use was not fair, but that it was also damaging - nonmonetary damage can be alleged as well, such as reputational or moral harm (as in moral rights, not morality in general), and I think this would be a far better system. However, so far, to the best of what I've seen, Rule 11 doesn't turn 17 106 and 17 107 into anything like this system.
Do you have anything to show otherwise? I'd love to see it if so.
Well met, Cpt Kangarooski.
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Yes, I also do transactional work. This matter is certainly interesting to me, but it's not of great practical importance.
107 is an affirmative defense
That's a common misconception of section 107. It's not a defense to infringement. Remember that section 106 states that the exclusive rights of copyright are "subject to sections 107 through 122," and that section 107 itself states that "the fair use of a copyrighted work ... is not an infringement of copyright." Therefore it really strikes at the heart of the case. Actual defenses in copyright are rare, and I wonder if this is related to its nature as a strict liability statute; the closest are probably the 'innocent infringer' provision in section 504(c)(2), which merely goes to damages, and section 1008, which provides that making certain copies under the auspices of the Audio Home Recording Act are infringing, but are not actionable.
We just treat fair use as if it is an affirmative defense for most procedural matters, despite the lack of support for this in the statute, because there are no presumptions for or against fair use, and plaintiffs obviously aren't the right parties to rely on for a complete exploration of it, or other potentially applicable exceptions to copyright.
I'd also point out that the safe harbors of 17 USC 512 and 47 USC 230 don't stop determined litigants from filing, unfortunately. (And 230 doesn't apply to copyright anyway) In practice, plaintiffs are expected to respect them well enough to not file suit to begin with; if they do, however, they're also treated like defenses.
It's bullshit, but that is how copyright law works as far as I can tell.
Yes, copyright enables a great deal of bullying, as it is currently written. It is really in desperate need of being rewritten from the ground up. Unfortunately Congress will surely only make it worse if they touch it, due to their complete lack of interest in the public good.
In a better world, I'd like to see a presumption of fair use in copyright, and part of the pleading would include not only an allegation that a use was not fair, but that it was also damaging - nonmonetary damage can be alleged as well, such as reputational or moral harm (as in moral rights, not morality in general), and I think this would be a far better system.
I don't mind fair use not being presumptive (I think it better reflects the case-by-case, totally fact-dependent nature of fair use). I just think that where there is a patently obvious issue with the viability of a case (and as fair use goes to infringement, rather than merely excusing infringement, the viability of the case is at issue), plaintiff needs to at least address this a little bit in the pleading to comply with Rule 11.
Since this is an academic issue for me, I'm not going to do a lot of research on it, but there are apparently some cases on Rule 11 that found that sanctions were appropriate where attorneys failed to do basic legal research concerning limits and exceptions that undercut their causes of action (e.g. failing to notice the 11th Amendment, and failing to dismiss a party protected by it when notified of it, Hernandez, 197 F.3d 256; failing to notice exceptions in labor law which remove certain protections from the plaintiff, Galaso 310 F. Supp. 2d 569).
The main thing that came to mind though, despite it being a bit more of a stretch, was Lenz v. Universal, 572 F. Supp. 2d 1150 (the famous 'children dancing to Prince' case). There, plaintiffs admitted that they should consider fair use issues before filing suit, and the court went further and required consideration of fair use to be made before a section 512 takedown notice can be issued in good faith. I find it hard to believe that the standard for a takedown notice would be stricter than for a full-fledged federal lawsuit.
The lawyer at Higbee, if he really is going to recommend to the client that they sue, and he really does file, as the letter indicates, had better make some sort of decent argument in the complaint as to why it isn't fair use, IMO. Otherwise he's either accidentally or deliberately ignoring applicable caselaw as to whether an infringement has even occurred. It doesn't have to be exhaustive at that stage, but I really don't think it should go totally unmentioned.
And because it's obvious that the plaintiff isn't going to win, the suit won't get filed, and Rule 11 will do its job by discouraging parties from filing suits that are a waste of the courts' time.
As I said, I wouldn't expect a court to actually sanction the Higbee attorney if the case were filed without any mention of fair use, but what mostly is offending me is the bad lawyering going on here. I still can't get over that absolute statement, about "we will recommend filing."
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It is better to Cut and Paste rather than to Steal and Paste.
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Until the Supreme Court holds otherwise, alleged infringers will bear the burden to prove their use is fair. A good article discussing the origin of fair use as an affirmative defense and the burden of proof is here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1340128
I don’t think fair use is an affirmative defense because it’s assertion is NOT the admission of a wrongdoing that’s justified by a privilege or excuse. See 17 U.S.C. 107 (“ … the fair use of a copyrighted work … is not an infringement of copyright.”). I think fair use is a “denial” defense – that is, it denies any wrongdoing. But I don't have a say in the matter. A very good explanation of the difference is here: http://www.litigationcontrolpanel.com/CAD/Ch1.pdf
The fair use burden shifting is mitigated somewhat by the even-handed grant of attorneys’ fee awards to successful fair users. One such ruling is here: https://www.scribd.com/doc/75510815/Seltzer-v-Green-Day-Fee-Award
Moreover, one influential judge has concluded that before sending a DMCA takedown notice a copyright owner MUST consider whether the alleged infringer has a fair use right to use the allegedly infringing material. Lenz v. Universal Music Corp., No. 5:07-cv-03783-JF, 2013 WL 271673 (N.D. Cal. Jan. 24, 2013) (“The Court concludes that at minimum, for the reasons discussed at length in its prior order, see Lenz, 572 F. Supp. 2d at 1154-56, a copyright owner must make at least an initial assessment as to whether the fair use doctrine applies to the use in question in order to make a good faith representation that the use is not ‘authorized by law.’"). The ruling is here: https://scholar.google.com/scholar_case?case=16651379811470109098
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I just got the same letter
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a law suit letter for $5k
Thanks,
Phil
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Tech Dirt Misses the Obviosu As Usual
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Scarlett Johansson
Scarlett Johansson - has become the world's most expensive actress since 2019
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