Staying Creative, Authentic and Alive With Higbee & Associates Trolling AOC

Introduction to AOC’s Minor But Big Headaches Image Rights Problems

Anne of Carversville is launching a new series of posts about our experiences in the world of copyright claims against a small number of images hosted on the website. I will be writing these posts on behalf of AOC as the owner and chief content creator for the website.

These image copyright infringement posts are meant to be a narrative, not 5 Key Steps To Staying Out of Trouble with Higbee & Associates and/or Image Rights International. I am not an attorney, and offer zero legal advise. Nor an I an expert on avoiding either firm, as my current problem is with Higbee & Associates — and it’s not our first copyright car crash.

I will share specifics on what I've learned dealing with these two firms in particular on copyright infringement claims, and how I've twisted my mind around to "think differently" about our interactions. Even though comments on AOC have been closed since 2012, when the Republican right wing posse was again after me, along with large parts of the Arab world, I will open moderated comments on this post.

Update: It’s impossible to have comments open on a single post. Turning on comments for this post turned the entire site open for comments, and I was immediately lambasted with anti-feminist, anti-women’s rights comments from men and at least a couple women.

My goal is to have help in finding a collective way out of this mess by building an honest data base of legal opinion on copyright law, as it applies to my particular situation and other websites in the fashion and design industries. The digital world also presents new challenges.

I encourage submission of helpful, existing new articles from true experts in this field, and I would like to have a group of both photographers and copyright professionals willing to read some of these articles before they are shared on AOC. I do not have the intellectual knowledge to ascertain the legal facts in articles written by lawyers.

Communication With Higbee & Associates Is Not Rational

It’s clear to me — Anne Enke — that I cannot deal with the Higbees and DigitalRights Internationals of the world without an attorney. And on a website that has turned its nose up at advertising platforms for a decade, isn’t an affiliate of any online retailer and failed miserably trying raise money from readers, there is no reliable revenue stream on this website and it has never existed since 2007.

At this very moment, I SHOULD be writing a grant application for artisans and artists that will be leveled by the COVID-19 economy. One is out there and both my small jewelry business and even AOC might qualify for a grant. Something tells me we won’t be seeing many high-end artisan shows in 2020, even in the fall.

So I am between a rock and a hard place, as the expression goes. I cannot afford attorneys multiple times each year to deal with firms like Higbee, and I cannot stop the copyright trolls from landing in my mailbox. I anticipate this problem will worsen with creatives under pressure in our COVID-19 world.

In dealing with Higbee & Associates, rules that I learned in business and high level negotiations don’t apply. I can’t say “Hey, I’m in your files. We went through all of this already. Please check your records.”

In my last truly painful Higbee experience, when I said (this is a summary, not a direct quote) “The Paul Larson image is from 2011/2012. My raving about it and sending people to his website was NOT an act of piracy. In fact, that praise is still in row 1 of Google Images,” I expected a response.

I expected the major ruling determined in the previously-decided federal court in New York, Minden Pictures, Inc. v. Buzzfeed, Inc. (S.D.N.Y. 2019) decision to be relevant to Higbee’s client Paul Larson claim against AOC . I expected Higbee paralegal Ms. Brandt to have a cogent response, when I quoted this article with the link.

Springut lawyers wrote in Partial Dismissal of Copyright Claims Teaches Additional Strategies to Deal with Trolls

Minden Pictures is a wildlife and nature photo licensing agency that has filed 36 copyright infringement lawsuits since 2010. In this case, Minden alleged that the copyrighted photographs were displayed on Buzzfeed’s website at various times since 2011. Buzzfeed moved to dismiss, and the district court granted much of Buzzfeed’s various dismissal motions.

One key ruling was that the three-year statute of limitations applied to any pictures posted more than three-years prior to suit. Minden tried to avoid the statute of limitations by invoking the Second Circuit’s “discovery rule.” But the court ruled that as a sophisticated party that had brought numerous copyright suits, Minden was expected to exercise considerable diligence to protect its rights. It could have discovered the infringements had it reviewed Buzzfeed’s site.

I sent Ms. Brandt — and Mr. Larson — Google Images screen shots for years showing that he had known for nearly a decade about that image and Anne raving about his collages, because every photographer looks at his/her Google Images results. And if a photographer doesn’t watch Google Images, shame on the creator, ruled the Southern District of New York.

To me, my own legal work was worthy of a response. There was none from Higbee. The next form email arrived with zero acknowledgement of all my effort to prove my claim innocence and a long-expired claim in the first place.

So besides the fact that I cannot pay for ongoing legal advice to deal with Higbee & Associates and Digital Images International — and the next copyright troll firm that comes calling in our COVID-19, everybody’s broke new world order — I cannot cope with law firms that do not actually have conversations with me.

Future posts will dwell on the strategy to “break” the alleged infringer. For me, if I break, I might as well shut down AOC as we know it, because I will lose my ultimate ”fair use doctrine” defense.

I resolved to myself that this situation must end in some way, because it’s just not worth living with this constant threat of lawsuits and demand letters, when I believe 90% of the judges in America would agree that Anne of Carversville has operated under copyright’s “fair use doctrine” for a decade. And even if Higbee agrees that AOC operates under “fair use” that’s a court case defense, not a “pay up” defense, as I understand the law.

Anne of Carversville’s “Fair Use Doctrine” Defense

For the record, Anne of Carversville hosts approximately 200,000 images on our Squarespace platform, starting in 2007 on V5 and changing over to V7 in 2016.

We have never paid $1 for an image hosted on the website; we've never gone to court over an image infringement claim. We've never been served with any legal paperwork pertaining to an alleged copyright infringement that has been filed with any court -- state or federal.

I've worked endless hours tending AOC like a garden, producing some of the most organized and easy to navigate photography and model shoots archives in the industry. A host of other categories at AOC are also visually archived, but the focus in this post is the Photographer Archives and Model Archives.

There is repetition of the images in those archives, based on the user's search focus. Today April 19, 2020, we have archives for about 260 models and 120 photographers. We receive no financial help from individual photographers or model agencies in maintaining AOC. We do not even encourage submissions, but we’ve come to know many of the photographers over the years and they send us their work directly.

'Curated' became another meaningless word on the Internet, due to overuse and low standards. AOC IS the most tightly-curated collection of fashion images available for easy review.

Typically, a rising model or photographer must have five fashion editorials in major publications or websites, plus high-quality personal projects or ad campaigns to be included in the formal AOC archives. We continue to add photographers and models who have 15 stories on AOC from past years in an organization project now in its third year.

We backdate and install old editorials that are particularly good and they become part of the photographer or model’s archives with little new SEO value to AOC. We do it because of our relentless pursuit of excellence. I estimate that we're 80% finished with the restoration of a decade of daily posts.

Since 2007, not one magazine or one established photographer has said one word to me or asked me to remove one image from this website. They have three words: "I love you!" or "You're the best!" Within the last 12 months multiple photographers have mentioned that prospective clients directly ask them if their work is on Anne of Carversville and then up comes the website for a look at these user-friendly archives.

AOC does not post designer runway shots, unlike most other archives -- except as they relate to fashion trends emerging from design shows. That material is easily available from Models.com or the Fashionspot -- to cite two sources. AOC typically drives readers into Vogue.com to view runway collections from a brand and designer overview.

For the first time brands like Dior and Louis Vuitton will have their own archives on AOC focused on ad campaigns, editorials, their ambassadors and spokespeople. We write about their progress in sustainability initiatives and advocacy around important issues to AOC and our readers like climate change and global women's rights, including girls education.

Anne of Carversville Operates Under the "Fair Use Doctrine" of Copyright Law

From all that I've read and in conversations with people who know far more about copyright law than I do, Anne of Carversville is able to make a very strong legal defense in court that we absolutely operate under the "Fair Use Doctrine".

Multiple posts will make that argument in this new initiative, and with specific examples of how different AOC is from competitive websites who only post images. I will make the public case that AOC exceeds every criteria under the "Fair Use Doctrine" umbrella.

Photo by Anthony Garand on Unsplash

In my next post I will share more details about my spring 2019 experience with Higbee & Associates representing New York photographer Paul Larson. I must say at the outset that Mr. Larson claims to have had no idea that Higbee was giving me such trouble, that he was away for two weeks on a business trip and not near email. I will never know what Mr. Paul Larson knew and when. All I know is that he was copied on very detailed emails from me sent to Ms. Brandt. Truthfully, I really don't care what he knew. As we all know, serious crap happens in life to all of us.

In hopes that we all will learn something, I will ask questions of a legal nature hoping for comment inputs. Example: given the size, scope and reputation of AOC can I post an image of an artist’s work and rave about it, linking into the website w/o asking her first? I hate to admit that I do this all the time, but these are the kinds of questions and issues I wish to explore.

Now I have a new Higbee problem which I won’t discuss in great detail without proper legal advice. I’ve been so agitated over this matter that I didn’t reach out to the photographer, as I normally do. Unlike Mr. Larson’s claim and another directly from the photographer in fall 2019 through Digital Images, this claim is from the photographer’s agency — or on behalf of the agency.

I’ve also learned that firms like Higbee and Digital Images International go through agency images and try to attach them to the website they are trolling. In the first DII case in Fall 2014, the agency was furious over how I was treated (as was the photographer) and was not a client. Rather DII appeared to be trying to make them a client by proving their worth, so to speak. It appears that there’s little interaction between the law firm and the photographer or agency.

I have the sense that in some cases, at least, the photographer was never asked: “Do you know your images are on a website called Anne of Carversville? Is that okay with you?”

This is now stream of consciousness writing, and I will look at the photographer’s website (which I should have done before now) . . . be back in a few.

Call Me Astounded

. . . that I’ve actually reviewed the current Higbee client’s agency website, then on to the photographer’s website and see the tremendous synergy that exists among our mutual interests and probably personal values. I was so upset after the Paul Larson incident and how insane it was to deal with Higbee & Associates, that it’s only now that I actually reviewed the photographer — who is very tied into a young crowd that I frequently write about on AOC. I don’t know him, but I know his friends.

I seriously doubt that an actual, timely copyright registration was ever filed on the image, which is necessary for a trip to court, but not to ask for payment. But I am sure that my personal intervention with this photographer will establish myself as much more than an Internet image thief and perhaps he can speak with his agency about Higbee’s pursuit of me.

I have no good explanation for why I didn’t learn these facts sooner. Late this past fall I had both Image Rights International and then Higbee on my case — which is super stressful. I got rid of Image Rights issue w/my same tenacious digging for facts; and Higbee went quiet for about three months. Then POW!!!

Make no mistake, I continue to send an SOS for legal help, because Higbee will be back, even if I can personally bring a resolution to this case, as I did the Paul Larson one last year. And I want to create a solid body of work and information on this topic that is helpful to other creatives.

Many Shared People of Interest — Higbee’s Agency Client’s Photographer

In fact, my “Fair Use Doctrine” defense will now quietly reference one of the industry’s rising stars and an art book publisher who was furious with me for writing about the then upcoming fall 2019 book before scheduled stories in WSJ Magazine/Web and the New York Times. The book and some images were public on Vogue Italia and the artist’s work was also on a high-end photography website, when I began digging.

As mad as the book publisher was at me, I really thought he was prepared to strangle me.

I stood my ground — deferentially while gulping and waiting for the sordid stew to hit the fan — but then he asked me to take down one image. They didn’t have the rights for the Internet on that one image I had managed to find through my deep sleuthing. That same well-known fashion rebel is the first image on this latest Higbee client agency’s photographer website.

The agency is Higbee’s client, not the photographer, but the photographer has AOC values all the way. He may well READ AOC and be clueless to what is actually going on. I assure you that his friends and photographer colleagues read AOC.

Reading in the email that the book editor only wanted me to remove one image from AOC, because the publisher only had the image rights for book use of said fashion rebel, I was shocked. For once I kept quiet, because I assumed he would now demand that I take down the article, and of course, I would have. He did not. He asked me how I found all this information about the photographer.

So I sent him my research file and held my breath waiting for his reply and expecting the worst. Reality was quite the opposite.

The book publisher found the article original thinking and excellent to promote the book because of Anne of Carversville’s credibility and stature. He asked me for extra links to the actual book. Done. The gist of his final comment was: “I’m furious with you because you scooped the Times and WSJ, but it’s a damn good article. There are protocols around these matters, and you should learn them.”

Not wanting to press my luck, I was contrite, promising to do better in the future but also suggesting that perhaps it was time for the art book publisher to add Anne of Carversville to his press list. He agreed that would be wise . . . . and so he did.

I will share the actual facts of this story with the Higbee client’s photographer and the incredible writing and set of archives I’ve created for this young photographer who has to be his friend — now that I see the crowd he runs in, based on his images. I think he will agree that this copyright claim is a simple misunderstanding, and I did not act in bad faith with his image. Maybe he will let me interview him about this entire topic.

Working for free on AOC since 2007 — and having my first GlamTribal necklace bought by the Chinese and knocked off literally — I have a deep understanding of how difficult it is to survive as a creative. So maybe I can do a feature on his photography and he can apply to the same COVID-19 art grant program I’ll be applying to. We both win but not through Higbee threats and money I do not have — AND a copyright law I do not believe I violated.

To be continued . . . Anne