The $1000 I Will Never See Again

The Copyright Trolls are Alive And Well

 

Some People Exist Only to Make Others Miserable 

 

The Voices In My Head is a satirical blog.  It is intended to be amusing and encouraging edutainment.  However, on occasion an issue comes to light that necessitates that I stow the satirical and the funny, and address something somberly, because it has bearings on us as voice talent, and you need to be protected, especially if you are a blogger or are conducting digital marketing.  So hold on to your butts, because this is a long, somewhat chagrinned one.   It is not an airing of grievances; it is a play-by-play for you to pay attention to and hopefully avoid.  Consider it a very lengthy PSA.

The word of the day is not funny.  The word of the day, boys and girls, is despicable.

It began in innocence, as many things do.  A harmless post, something to encourage and bring joy.  It was something that came, intentionally, in the middle of a dark time, to lighten the load and help us all breathe some fresh air in a time where breathing fresh air was a bit scary.

On March 23rd 2020 I published a blog entitled “We have your Toilet Paper.  And if you ever want to see it again…”  This blog contained observations on the times we were living in, including panic-buying and hoarding of things like toilet paper.  It also included a “Top Ten” list of amusing activities you can do in order to creatively outlast the pandemic.  In this blog, I happened to do a Google search, and then find and use a picture of a man wearing a box over his head: a makeshift mask, comical in its appearance, silly, and underscoring the extents we would all, as a society, go to in order to avoid contracting COVID-19.  I would write several subsequent blogs on the subject, as would many of my contemporaries.

Throughout 2020, countless memes have been employed of people in masks, Darth Vader not the least.  Masks unfortunately were not going away anytime soon, and unfortunately, they were the new normal.

However, unbeknownst to me, another new normal has been creeping up for years in the slums of the Internet.  It is the new normal of cyberbullying, shaming, harassment, and extortion – all born of cowardice, greed, and/or malice.

What I intended to be a humorous and satirical look at the state of our pandemic would later become one of my biggest regrets, and would eat away at my pride.

There are people out there that exist solely to make others miserable.  I was about to meet one of them up close and personal…again.

 

Not My First Rodeo

"Anti-cyber bullying fix - meet the troll" by FixersUK is licensed under CC BY-ND 2.0

 

I may have mentioned before that my wife and I have been victims of cyberbullying.  Ergo, what I was about to encounter was no undiscovered territory or foreign terrain.  When I received the first communications, it immediately reeked of extortion and cyberbullying.  Perhaps my defenses were already up and I had unfortunately, through experience, been trained to sniff out jerks on the prowl; be that as it may, here came another one.

On Monday August 3rd 2020, I received a notification from PicRights International, on behalf of Agence France-Presse, stating that they “noticed that imagery represented by Agence France-Presse has been displayed on your website: http://www.seattlevoiceactor.com/. However, Agence France-Presse has been unable to find a license for this usage of the imagery by your organisation. Therefore we are acting on behalf of Agence France-Presse to obtain compensation for your unauthorized past use of their imagery.”

Now, I receive plenty of emails from Nigerian princes, phishing attempts and fake alerts designed to see me surrender any one of a number of payments, but this one seemed more "official."  I immediately removed the image from my website and wrote these people back, stating that I had no idea the image was copyright-protected, and that I had removed it.

Nonetheless, they had already invoiced me.

Wait.  Invoiced me?  Was a transaction ever conducted?  Did I purposefully misuse something?  Did I seek to defraud?  Was there intent?  Let us review.  No.  No.  Aaaaaaand no.  Nonetheless, I now apparently owed $534 for compensation for “the past unauthorized usage of the imagery.”  Without providing so much as any kind of official copyright registration number, PicRights was now the police, and I was the perp.  I scratched my head.  Uh....how did it come to this again, can anyone remind me?

Once I read that payment was being demanded, I knew this was legalized extortion: the very same place I had been at before, back in 2013.  To test out the lack of officialness of this alleged complaint, I wrote back:

“I had no idea the image was copyright-protected. I assumed it was public domain. I cannot pay more than $300.  And I cannot pay until after the 20th. Please advise.”

They agreed.  $300 was fine, and after the 20th was fine.  And that right there confirmed my suspicions of extortion.  They were willing to mark down my apparent damages by 56%.  FIFTY-SIX PERCENT!!!  What negotiating leverage they held on behalf of their complainant.  But wait - if there is no set-in-stone global infringement statute that specifically states that X + Y = Z, and if they are now bargaining with me, then that is discretionary, desperate, capitalist greed-grabbing, plain and simple.  Extortionists use threats to exact payments.  They can be flexible, because they know that their little trick is working, and they will even pretend to be reasonable and gracious.  Which is exactly what PicRights then did, because of the pandemic:

“We fully appreciate that this is a very difficult time.  With that in mind, we would welcome the opportunity to discuss this matter with you, in the hope that we can achieve a resolution.”

Classic extortionist talk.  Absent a global statute delineating clear and tiered financial penalties dependent on the level of the alleged offense, this whole “we’ll work with you” policy smacked of a “let’s take them for whatever we can get” approach.

I wrote back and requested proof that the image copyright was registered, and on what date.  PicRights replied using, I am sure, the same form-letter response they have always used:

"As you probably know, since you are an artist yourself, copyright exists automatically from the moment a photograph is taken or an illustration is rendered.  Copyright in original works of authorship is automatic, and registration – while it does carry significant benefits to the copyright owner – is not required for a work to be protected by copyright. Protection attaches immediately when the work is completed which, in the case of a photograph, happens the moment the shutter is clicked. In order for a copyright owner to sue an infringer in the USA, the copyright must be registered but that can be done online by the copyright owner prior to issuing a lawsuit."

Essentially, now there apparently was retroactive protection even absent a formal copyright registration.  Mmm-hmmmmm.  At any rate, sure, they are right: I am an artist myself.  However, I would think the formal approach would be the copyright holder themselves coming to me and saying “Hey, you!  Darn you!   You used my image, you just better take that down right this minute, do you hear me?”  This is precisely the purpose of cease-and-desist letters, which is the expected first step.  Not arbitrary monetary demands.

Again, my original reply was “I had no idea.”  I was more than willing to comply, and I did comply, removing it right away.  Apparently, however, honoring requests is not enough anymore, and the modus operandus is to make people miserable through demands for monetary compensation, and threats of legal action through who I would come to find out was their de facto copyright troll attorney, Higbee & Associates.

At any rate, after doing my due diligence with some heavy research, here was my reply:

"Your explanation aside, you and Alfred Hoefinger seem to be proceeding with a formal complaint with a formal request for payment alleging a formal copyright infringement.  Therefore please provide proof that the image copyright was indeed formally registered, and on what date.  If there is no registration, there is no infringement.  In the United States, copyright is filed with the Library of Congress, or at the very least, as a “poor man’s copyright” mailed certified from oneself to oneself.  In this case, I will need proof that either was done.  As an artist myself, as you say, I provide mp3s all the time, but none of them are registered with any kind of copyright, and if they were, I would need to go through proper channels to register them for them to indeed be protected legally.

So, again, please provide proof that the image copyright was indeed formally registered, and on what date.

Also for your sentence “copyright exists automatically from the moment a photograph is taken”…all the way through “copyright owner prior to issuing a lawsuit”, please cite your legal reference where you’re deriving such language from.

Also, please provide how you arrived at the arbitrary amount of $534 originally, and how you are authorized to negotiate the price down to $300 on behalf of Agence France-Presse.

Also, per your original email, you stated that the notice to me was sent via hard mail.  I have received no such copy.  Please fulfill your due diligence by forwarding me the copy of your complaint via hard mail.

As you may know, under digital media law, citing from Title 17 of the US Code:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. and the effect of the use upon the potential market for or value of the copyrighted work.

In my case, mine was used merely for teaching and commenting, as from my blog, to illustrate a point.  Not for profit, and not for recirculation.  It was found in a simple Google search and was used for demonstration purposes only, for a limited subscriber base of readership.  Therefore, limitations on exclusive rights applies here.

In any event, you ought to be sending a formal cease and desist letter from an attorney, not bargaining down a supposed “licensing rights” price and requesting that I pay you outright, whereas any supposed copyright infringement licensing payment should be going to the original copyright holder, not an intermediary.

I’m consulting with an attorney to look into this matter and will be in touch."

They wrote back and stated that they have ”provided sufficient documents to confirm our partnership with AFP, and the image ownership of AFP.”

I replied:

"You are threatening legal action.  Pursuant to discovery and information gathering, I will once again request the following, since it does not appear that the image was even registered with a formal copyright.  Once I have this information I too will proceed.  Thanks.  I’m sure you understand that threatening legal action must be accompanied by substantiated evidence as opposed to a random request for an alleged license infraction payment.

• Again, please provide proof that the image copyright was indeed formally registered, and on what date.
• Also for your sentence “copyright exists automatically from the moment a photograph is taken”…all the way through “copyright owner prior to issuing a lawsuit”, please cite your legal reference where you’re deriving such language from.
• Also, please provide how you arrived at the arbitrary amount of $534 originally, and how you are authorized to negotiate the price down to $300 on behalf of Agence France-Presse.
• Also, per your original email, you stated that the notice to me was sent via hard mail.  I have received no such copy.  Please fulfill your due diligence by forwarding me the copy of your complaint via hard mail"

You can see I am once again asking for proof of the formal registration of the copyright.  And you can see that they would not provide it.

I received no response.  And then there came the inevitable lull.  Nothing, no word.  Until of course June 24th 2021, when I received the threat letter from Higbee & Associates.

 

Sue is not my favorite Woman’s Name

The letter is too long to be included here, and it would just bore and irritate you.  Must be a sad life for Higbee, with everyone they write to mad at them.  My customers all seem to like me.  Oh well....anyway....

It was multi-paged, as all formal extortion notices tend to be, laden with threats veiled in sympathy, understanding that we are certainly in difficult times, but if you kindly pay us what you owe, we will not take you to the cleaners and demand your firstborn.  Amidst all of the heavy-handed “evidence” they presented, there was the threat that a court judgment could be rendered against me, awarding them up to $150,000 in damages.

I more or less knew this day was coming, in the back of my mind.  One thing that many Reddit forums and other well-informed articles stated was "they will not go away.”  Attorneys advised me not to ignore it.  I was naïve to think that it might be, that I had somehow proven myself to be a worthy contender through my well-written emails, and that I was not some average Josh.  Indeed, I was above average, and I would not be sued, and I would not pay up, and you are wrong, thankyouverymuch.

All of that went out the window.  The long story short is that I consulted with an attorney, Darren Heitner of Heitner Legal, after finding and reading one of his articles.  Darren’s retainer would be reasonable, but ultimately, there was still the chance that I could lose.  And then I would be out:

• court costs
• plus Darren’s retainer
• plus Agence France-Presse’s legal fees
• plus Higbee’s legal fees
• plus the judgment, whatever that might be.

All for harmlessly posting an innocent picture on a blog that was designed to encourage people during a dark time.  Sorry for caring, world.  Thanks for the karma.

The Internet is a revolutionary and awesome tool that has allowed some truly despicable predators to come out of the woodwork and abuse it.  Through the anonymity it affords, through the distancing it provides, people all the way across the world can exact payment from us for whatever way they feel slighted.  They can take it to the court system, and they can win.  I have seen it happen, and I was not going to be a further victim: not only of the harassment and extortion, but of the courts perhaps deciding (erroneously and unjustly) in their favor.

I decided I had had enough, and I swallowed my pride.  I engaged suspension of disbelief. I paid the $1335 and signed their release.  Good riddance.  I could have taken it to court and argued Fair Use.   I could have pleaded my case to a hopefully rational and caring judge.  I may have won.  I may have lost.  Who knows.  I was not going to roll the dice.

In August of 2011, I could have just paid $300.  Now I was paying $1300.  That is a $1000 difference I will never see again, all because of principle.  All because of a failed system.  All because of legalized extortion and cyberbullying.  And I am not alone.  Check out these articles and exposés on other victims...

• And this one.
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• And this one.
• And this one.
• And this one.
• And this one.
• And this one.

The list goes on.  And on.  And on.

Paul Strikwerda has an excellent blog on this. Conversations about Higbee and PicRights: Reddit is rife.  Quora is at quota with queries.  Communities are counting the complaints.  Matthew Higbee, PicRights, CopyTrack, Masterfile, Pixsy, etc.: they're all the same lump of bad coal in your stocking.

 

Josh, wrap this up, will you?

Speaking of stockings, I would wrap it up and put a bow on it, but this is a present I would not wish on anyone.  I warned my fellow bloggers about this when I first heard from PicRights in 2020, and it came to light that many of them were using great sites for their free images, such as the following reputable sources:

• Unsplash
• Pixabay
• Creative Commons
• Envato Elements
• Twenty20
• Sites with free images that you can use with or without attribution.

Hindsight is 20/20: if I knew then what I know now.  Information truly is power.  What I wrote in complete innocence out of a desire to encourage and provide a little levity in the midst of a pandemic that affects ALL of us, was met with a pounce for money, in pure capitalist greed.

Look, I did not do this intentionally.  Had they asked nicely with a simple warning, or simply sent a cease-and-desist letter, I would have gladly removed the image (I did) and apologized (I did).  My eyes would have been opened.  The fact that these companies lurk in waiting to pounce upon people who do this, seeing only dollar signs...is despicable.  Do people not ask anymore, they just assume you are corrupt and malicious?  Is that what we have come to as a society?  Sickening.

I earn an honest living as a voiceover artist, and paying $1300 does not put my family in the gutter in the slightest.  However, there are some people out there that that kind of money would decimate.  Aside from that, there is the whole issue of having to swallow my pride…and forget.  Emerge the wiser, and employ discretion, intelligence and strategy going forward.  Indeed, I wiped all images from that blog prior, and going forward only use free images with attribution, paid images with a transferred license, or my own created images.

That is my counsel to fellow bloggers, because bloggers seem to be the chosen prey of these animals.  You must always use images that are free.  Never just grab them from a Google search.  Use images that are absolutely clear that they are free.  Or use images that are free to use with attribution (crediting the original author with a link).  Or use paid images wherein the usage license is transferred to you upon purchase.  And - if you are ever pursued by these creatures, do yourself a favor and just pay up early.  They will not go away, and the cost will continue to climb.  You will lose sleep and peace, and could potentially have a judgment entered against you.  Is it worth it?  Probably not.  Pay up, learn a lesson, and move on.

I am an author, a blogger, a voice talent, and an encourager.  I am no crusader.  This fight was not one I wished to take on.  I preferred to have lower blood pressure. I have more important things to do, and a more important life to live.  I fly and I soar.  I do not lurk under bridges.  I create, I dream, and I enable, and encourage people with my voice.  My climb upward is not over the backs of others.  I have no such lofty aspirations to get-rich-quick.  My aim is living in integrity; not literally banking on misery.

So, in short, it is actually $1300 I will never see again.  But as long as I never see Higbee and Associates or PicRights or Agence France-Presse again, that is a small price to pay.  Had I paid it right away, it would have been $300.  At this writing and after paying their $1300, I just got a $1000 VO job.  So I believe God just made it even, and I am glad He is in my corner.  I could have completely ignored them, but they could have continued to try to notify me, find me, serve me, etc., and eventually, it is all up to a judge, who could have entered a default judgment against me of up to $150,000.  Did I cave to avoid that?  Maybe.  But I did it for my own sanity and peace of mind, and I emerged as the better person, rising above it all.

The reality, however, is that I should never have had to pay anything.  But thank you, Internet, for allowing mold to grow in the dark corners of your web, and springing up bounty hunters.

I am a voiceover artist.  I understand copyright protection and needing to protect the usage of my audio.  My contracts all enforce it.  And I fully support photographers' rights to their images!  If a client of mine violated my contract, would I be OK with that?  No.  Would I take them to court?  Maybe.  I would probably send a cease-and-desist letter first however, as that is just common decency.  There would not be any formal demands for remuneration accompanied by legal threats.  Even if there were, again: there was a contract in place beforehand stipulating that usage, so the end client knows full well what the usage parameters are.  In the wild west of the Internet, there are no such contracts or usage parameters.  Unfortunately, anything goes – until you are threatened and sued.  And such despicable people choose to make that their livelihood.  Unconscionable.

Make no mistake: it was not Agence France-Press who cared about the image being used.  Do you really think there was some disgruntled photographer in an office in France grumbling as he landed on my site?  No.  Companies like PicRights employ software that do reverse-searches on imagery, and then report it to companies like Agence France-Press, in order to  secure them as a client so they can harvest victims for extortion payments.  That, quite simply, is what this is.  On the flip side, I have photographer friends who I utterly respect, and their productions deserve protections, as mine do.  There is just a genuine disconnect between the artists who produce, and the henchmen who collect.

That is the difference between copyright trolls and me: I do not have selfish, greedy ambition that comes at the expense of another.  I will sleep in peace tonight.  Sure, PicRights and Higbee may too, laying on their satin sheets in their gilded beachfront property, rolling amongst gems while the sea breeze blows in hundred-dollar bills.  Good for them.

I will opt for the honest, decent life seven days of the week and twice on Sunday instead of soulless vampirism.  I end this blog on a sour note. The Voices Is My Head Blog is satirical and intentionally comical.  It is designed to encourage and bring laughter, rather than to be mired in frustration and sadness.  But the blood of my humor was sucked right out of this week in a $1300 gut-punch because of an honest mistake.

My real hope is that if you are a fellow blogger, marketer or artist, I hope to have turned this unfortunate experience on its head so that you can benefit from it and be unafflicted by such lowlife leeches from the underbelly of the web.  Please do not make the same mistake I did.

$1300 goes a long way.  It could have been more, and for that, I am grateful.  In my humble opinion, it just should have been zero.  But the copyright trolls are alive and well, unfortunately.

Sincerely,

JA

=============

YOU HAVE MADE IT ALL THE WAY TO THE END, AND I SALUTE YOU.

• Like this blog?  My children are counting on you to put bread on our table through the purchase of one of my books.  By the way, low-guilt-trip sales pushes are my specialty
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Joshua Alexander
Seattle Voice Actor & Voiceover Artist for hire
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