Adlife Higbee copyright infringement demand letter

Discussion in 'Photography - DMCA - Copyright - Virtual Tours' started by d360, Jul 3, 2017.

  1. d360

    d360 Administrator

    Here's a new one we are on the other end of a copyright demand letter. Earlier in 2017 Adlife Marketing & Communications Co. Inc sent us a demand letter for image usage. We pointed out to Adlife that we licensed this image from iStock and provided details of a valid license from iStock, the image was removed as well.

    Now they have Mathew K. Higbee of Higbee & Associates trying to collect on the image we legally licensed. We deal with copyright infringement all the time but usually on the other end. Since we don't license Destination360 images it makes it very easy for us to track down if our images are legally licensed.

    Companies like this give us reputable photographers a bad name. You can't license your images and then turn around and demand settlements years later. Here's the Adlife Marketing Higbee demand letter if anyone wants to read more.


    June 28, 2017,
    Re: Case Number: 503004
    Dear Destination360,
    Our client, Adlife Marketing & Communications Co. Inc., is a professional photographer
    who earns a living by licensing his photographs. Copyright images owned by Adlife
    Marketing & Communications Co. Inc. were discovered on Destination360 website(s).
    Please see the attached exhibits that show the use of the copyrighted works. Our client has no
    record of you having a license to use their copyrighted work and has authorized us to contact
    you on their behalf. If you have a license, please contact us immediately with a copy of that
    license at infringements@higbeeassociates.com, please include the case number (503004).
    If you do not have a license, we believe the use of the work is a violation of Title 17 of the
    US Copyright Act. As the violation occurred on a company website, the company is liable for
    the unauthorized use, including cases in which a website designer, employee or a third party
    is responsible for the inclusion of this image on your website. Even if your use of the image
    without a license was unintentional, for example; if the image was found on the internet and
    believed to be available for free use, it is still a violation of copyright law, and ceasing use of
    the images now may reduce the liability, but not release you or your organization from
    liability.
    As you can imagine, the unauthorized use of my client's work threatens my client’s
    livelihood. While Adlife Marketing & Communications Co. Inc., does have the right to bring
    a lawsuit for damages, my client is willing to settle this in an amicable way, out of court and
    without a lawsuit. I was asked to contact you and see if we can negotiate a settlement and
    save everyone the stress and costs of going to court. Please know that I only have a limited
    amount of time to settle this claim out of court.
    If forced to go to court, my client will ask for the maximum relief possible, which may
    include statutory damages under 17 U.S.C. §504 for up to $150,000 for intentional
    infringement or $30,000 for unintentional infringement. My client would also ask the court
    to have you pay court costs and attorneys fees. Copyright lawsuits can result in judgments,
    wage garnishments and liens on property. In some instances, the business owner can be held
    individually liable.
    This type of claim is often covered by business insurance. You may wish to forward this
    to your insurance carrier. You may also wish to hire an attorney.
    If we do not hear from you within 30 days from the date of this letter, we will have no
    choice but to take this to mean that you do not have a license and do not want to settle
    this matter out of court.
    To resolve this matter efficiently and amicably out of court, please follow these steps:
    (1) Within five business days after receipt of this letter, remove all occurrences of the image
    from your website(s), cease using it in any way, and confirm in writing that you have done
    so.
    Case number: 503004 Printed: June 28, 2017 11:45

    Page2
    AND
    (2) Within ten business days after receipt of this letter, return to our firm the attached Release
    License, along with your payment in the form of a valid cashier’s check or money order
    for $1975 payable to “Higbee & Associates Client Trust Account”. This can be returned to
    us via US Mail. You can also pay online at
    Authentication | Higbee & Associates CRM. Your login is 503004. Your password is
    o244etbb. If you choose to make your payment online, you can return the Release License
    via email to claims@higbeeassociates.com. Please include the case number (503004) in the
    subject line.
    Please feel free to call or email us to discuss this matter, 800-716-1245 or send email to
    claims@higbeeassociates.com
    Sincerely,
    Mathew K. Higbee
    Attorney at Law


    Page3
    EXHIBIT A
    Infringing webpages:
    New Orleans - New Orleans Louisiana
    Infringing file locations:
    Infringing images and timestamped screenshots are shown below. You can receive copies of these
    images via email by sending a request to infringements@higbeeassociates.com. The email must
    include the case number (503004) in the subject line.
    Date discovered: 2016-10-21
    Case
     
  2. d360

    d360 Administrator

    Page4
    RAPID CONDITIONAL RELEASE LICENSE AGREEMENT
    This RAPID CONDITIONAL RELEASE LICENSE AGREEMENT ("Agreement") is entered into on
    June 28, 2017 (“Effective Date”) by and between Adlife Marketing & Communications Co. Inc.
    ("LICENSOR") and Destination360 ("LICENSEE") (the "Parties" or individually the "Party").
    The Parties agree as follows:
    1. The Parties acknowledge and agree that this Agreement is made in resolution to the LICENSEE's
    alleged unlicensed use of image(s) referenced in Exhibit A (“Images”).
    2. LICENSOR hereby represents and warrants that it has the exclusive rights in the settlement
    and resolution of the claims related to the alleged unlicensed use of the copyrighted Images,
    including the rights to grant licenses for past and future use, and rights to grant releases from future
    claims.
    GRANT OF RETROACTIVE LICENSE TO COVER PAST USE
    3.
    In consideration of the license and other consideration granted herein, LICENSEE will pay to
    LICENSOR the sum of $1,975.00 in U.S. Dollars (the “Payment”) within thirty (30) days after the
    Effective Date
    a. Upon Payment in full, LICENSOR will grant LICENSEE a non-exclusive, non-sub licensable
    and non-assignable retroactive license, with the term commencing with the beginning of time
    and concluding upon the Effective Date.
    b. The LICENSEE will be granted rights to use the Images only within the limited scope as shown in
    this Agreement.
    c. The LICENSOR will retain all rights, interest and ownership in derivative works containing
    the Images, in whole or in part.
    d. Payment shall be made payable to “Higbee & Associates Client Trust Account” and delivered
    to 1504 Brookhollow Dr., Suite 112, Santa Ana, CA 92705. Payment may also be made online at
    Authentication | Higbee & Associates CRM
    ADDITIONAL TERMS AND CONDITIONS
    4. Except for the agreements, obligations, and covenants arising under this Agreement, the
    Parties will release the other party from any and all claims arising from the use of the Images.
    5. The Parties acknowledge that all terms of this Agreement are supported by legally
    sufficient consideration so as to make this Agreement binding and valid.
    6. All of the Parties will pay their own costs and expenses incurred in negotiation and preparation and
    execution of this Agreement.
    7. The terms of this Agreement are confidential; provided however, that each Party may disclose the
    terms of this Agreement, as necessary to enforce its terms, in response to valid legal process or as
    otherwise required by law, and/or to its financial advisors and/or legal advisors.
    8. The Parties represent and warrant that they have read and understand the provisions of
    this Agreement and have full authority to execute and consummate the transactions contemplated
    by this Agreement.
    9. This Agreement may not be modified or amended except by written agreement, signed by
    all Parties.
    10. This Agreement, along with its terms and conditions will be binding upon and inure to the benefit
    of each of the Parties and to their heirs, executors, administrators, successors in interest and assigns.
    11. The Parties acknowledge that if any provision or application of this Agreement is held invalid or
    unenforceable then any such provision will be deemed severed from this Agreement and
    Case number: 503004 Printed: June 28, 2017 11:45


    Page5
    the remaining provisions and applications of this Agreement will not be affected, but will remain
    valid and enforceable.
    12. This Agreement will be governed by and construed in accordance with the laws of the State
    of California, without regard to conflict of law principles, notwithstanding the fact that one or
    more counterparts hereof may be executed outside of such state, or one or more of the obligations of
    the Parties hereunder are to be performed outside of such state. Any suit, action or proceeding
    todetermine, construe or enforce any provision of this Agreement, or the rights of any
    party hereunder, will be brought in the State of California, and the Parties agree that jurisdiction will
    lie therein.
    13. If a suit, action, arbitration or other proceeding of any nature whatsoever is instituted
    in connection with any controversy arising out of this Agreement, or to interpret or enforce any
    rights under this Agreement, the prevailing party is entitled to recover reasonable costs and
    attorney’s fees from the other party.
    14. This Agreement constitutes and contains the entire agreement between the Parties with respect
    to the alleged unlicensed use referred to in this Agreement and there are no other
    agreements, understandings or representations with respect to this subject matter, which are not
    expressly set forth herein.
    _______________________ ____________
    Destination360 Date
    On Behalf of
    Licensee(s)Destination360
    _______________________ June 28, 2017
    ____________
    Mathew K. Higbee, Esq. Date
    on Behalf of Licensor(s)
    Adlife Marketing &
    Communications Co. Inc.
     
  3. d360

    d360 Administrator

    Here's the result of the Adlife Demand Letter. Its apparent Higbee and Adlife has no policy in place for tracking their licenses.
    Someone with time and proper image licenses should turn around and sue them for wasting valuable resources



    From:
    @gettyimages.com>
    Sent: Thursday, July 6, 2017 10:25 AM
    To: studio360@hotmail.com
    Subject: FW: iStock response on behalf of Destination360, case # 503004

    For you records.

    From:
    Sharon Albrizio [mailto:sharon@adlife.com]
    Sent: July-06-17 11:18 AM
    To: @gettyimages.com>
    Cc: claims@higbeeassociates.com
    Subject: Re: iStock response on behalf of Destination360, case # 503004


    Good Afternoon,
    After reviewing the information you have sent, Adlife confirms that this file closed.
    Thank you for your cooperation with respect to resolving this issue.

    Regards,

    Sharon

    [​IMG]



    On Thu, Jul 6, 2017 at 12:13 PM, @gettyimages.com> wrote:

    Attention: Mathew Higbee,



    I write in response to the attached letter dated June 28, 2017 to Destination360, case # 503004

    The image in question has been licensed by or client on April 8, 2010 for this use, and the royalty has been paid to Mr. Albrizio. As you are likely aware, Mr. Albrizio was a contributor on the iStock website, as such, he allowed iStock and our affiliates to license his content. Over the course of our relationship with Mr. Albrizio, we licensed his content over 100,000 times. We have worked with Mr. Albrizio and our clients to confirm licenses have been granted. This case is no different. Our client purchased a royalty free license to use the image and the use is within the terms of the Agreement.

    We trust this resolves the matter and that this meritless claim will cease.

    Claims Specialist
    gettyimages.com




    --

    Sharon Albrizio

    Executive Vice President

    o: 401.723.4782

    m: 508.415.6503

    www.adlife.com
     
  4. MichaelC

    MichaelC Michael Cain

    D360 thanks for sharing! I've heard Adlife is quite a player in the trolling business. On the other end of the spectrum I've dealt with Matthew Chan at Extortion Letter and he's just as bad.
     
  5. wanderer

    wanderer Moderator

    That's so great that iStock was able to step up and show that they paid for the image. Bravo!
     

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