Meyer, Suozzi, English & Klein, P.C. v. Higbee et al

Filing 12

REPLY in Support re #9 Motion to Dismiss for Failure to State a Claim filed by Mathew K. Higbee, Higbee & Associates. (Attachments: #1 Declaration of Mathew K. Higbee) (Ngo, Rayminh)

Rayminh L. Ngo, Esq.
EDNY #RN4834
HIGBEE & ASSOCIATES (Of Counsel)
1504 Brookhollow Dr., Ste. 112
Santa Ana, CA 92705
714-617-8336 (Ph)
714-597-6559 (Fax)
[e-mail]
Attorney for Defendants Mathew K. Higbee & Higbee & Associates
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
MEYER, SUOZZI, ENGLISH & KLEIN,
P.C.,

Case No. 2:18-cv-03353-ADS-ARL
DECLARATION OF MATHEW K.
HIGBEE

Plaintiff,
v.
MATHEW K. HIGBEE, Esq.,
NICK YOUNGSON,
RM MEDIA, LTD., &
HIGBEE & ASSOCIATES,
Defendants.

DECLARATION OF MATHEW K. HIGBEE
1.

I am an attorney at law eligible to practice law in the state of California and other

jurisdictions. I am over the age of 18 years old and I have personal knowledge of the matters
stated herein. If called as a witness I could and would testify thereto.
2.

I am a Defendant in the above captioned action. I am also the principle of

Defendant Higbee & Associates.
3.

Defendant RM Media Ltd. (“RM Media”), which is one of my clients, is a stock

photography licensing company that specializes in commercial product photography and
supplies unique images for web designers, bloggers and content writers.

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4.

RM Media is the assignee and sole rights holder to an original image of a

computer tablet bearing the words “burden of proof” (hereinafter the “Copyrighted Work”),
which was photographed by RM Media’s founder, Defendant Nick Youngson (“Youngson”).
5.

Youngson had registered the Copyrighted Work with the United States

Copyright Office under registration number VAu 1-248-878, with an effective registration date
of June 10, 2016. Youngson subsequently transferred all rights to the Copyrighted Work to RM
Media, and RM Media is currently the sole rights holder to the Copyrighted Work.
6.

RM Media owns a series of affiliate websites including the website identified in

the Complaint as the “Blue Diamond Gallery”, which offers RM Media content for licensing.
See http://www.thebluediamondgallery.com/terms-and-conditions.html.
7.

RM Media offers two licensing options for consumers wishing to use its content.

Under the first option, RM Media offers the majority of its content to consumers for a paid
licensing fee. Under the second option, RM Media offers a limited portion of its content library
(including the Copyrighted Work that gave rise to this action) for license under a Creative
Commons Attribution-ShareAlike 3.0 Unported (CC BY 3.0) (“CC License”), which, inter alia,
requires as a condition, that the consumer “give appropriate credit, provide a link to the license,
and indicate if changes were made.” See Complaint Exhibit 2.
8.

RM Media offers a limited portion of its content library, including the

Copyrighted Work, to those who meet the requirements of a CC License of providing
attribution and required link back to RM Media’s affiliate websites.
9.

The affiliate websites direct prospective licensees to RM Media’s larger library

of paid content, which, I am informed and believe, drives sales, and boosts RM Media’s paid
content higher in search engines such as Google.

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10.

As demonstrated in Plaintiff’s Complaint, the Blue Diamond Gallery website

contains a detailed explanation of the terms of the CC License as well as multiple disclaimers
alerting prospective licensors that attribution is a required condition to obtaining a license. See
Complaint, Exhibit 1.
11.

On or about January 19, 2018, RM Media discovered that Plaintiff was using the

Copyrighted Work on Plaintiff’s website without fulfilling the conditions of the license.
Attached hereto as “Exhibit A” is a true and correct copy of the post on Plaintiff’s website
featuring the Copyrighted Work and showing that Plaintiff did not comply with the express
attribution requirement to qualify for a CC License.
12.

I am informed and believe that RM Media did not have a record of Plaintiff

purchasing a paid license for use of the Copyrighted Work.
13.

Shortly thereafter, RM Media retained me and my law firm to send

correspondence to Plaintiff regarding its unlicensed use of the Copyrighted Work.
14.

Correspondence was subsequently sent on or about January 30, 2018, and

apparently received by Plaintiff on or about February 5, 2018. See Complaint ¶ 22.
15.

Thereafter, Plaintiff began communicating with members of my law firm.

Plaintiff denied any copyright infringement or liability, and never made any payments or
concessions.
16.

On June 8, 2018, Plaintiff filed the instant lawsuit, alleging two claims/causes of

action against me and my firm, as well as against my Client RM Media and its owner Nick
Youngson.
17.

The Plaintiff’s “First Claim for Relief,” alleged against all Defendants, including

myself and the lawfirm, purports to be a federal copyright claim for a declaratory judgment that

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Plaintiff never committed any copyright infringements in connection with its use of RM
Media’s Copyrighted Work. Plaintiff additionally seeks a declaratory judgment insulating it
from any claims for breach of contract based on its use(s) of the Copyrighted Work.
18.

Neither I nor my law firm own any interest in the Copyrighted Work and we

have never owned an interest in the Copyrighted Work. I have never purported to enforce any
copyright or breach of contract claim related to the Copyrighted Work against Plaintiff or any
other party.
19.

Plaintiff’s “Second Claim for Relief,” alleged against all Defendants, including

myself and my law firm, is a supplemental state claim under section 349 of New York’s
General Business Law.
20.

For the supplemental state claim, Plaintiff alleges that my firm and I somehow

violated section 349 for simply making pre-litigation settlement demands on the Plaintiff — in a
representative capacity as attorneys for my client — for the Plaintiff’s admitted copyright
infringement.
21.

As an initial matter, the original letter I sent to Plaintiff also alleges a claim for

liability for violation of 17 U.S.C. § 1202, which prohibits infringers from "intentionally
remov[ing] or alter[ing] any copyright management information." Attached hereto as Exhibit B
is a true and correct copy of my original letter to Plaintiff.
22.

Tellingly, Plaintiff’s Complaint and the Opposition omit this key fact.

23.

I do not believe Plaintiff’s Complaint against my client or me has any merit. It

appears from the Complaint and the Opposition, that Plaintiff openly admits that it used my
client’s Copyrighted Work without complying with the express terms on the Blue Diamond
Gallery Website.

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24.

While Plaintiff and I may disagree over whether such conduct constitutes

copyright infringement or breach of contract as a matter of law, in any case, Plaintiff clearly
bears some liability to my client.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Executed this April 16, 2018, at Santa Ana, California.
_______________________
Mathew K. Higbee

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Exhibit “A”

Exhibit “B”

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served by
electronically filing with the Clerk of the Court using CM/ECF on this 20th day of July, 2018,
on all counsel or parties of record on the service list below.
/s/ Rayminh L. Ngo
Rayminh L. Ngo, Esq.

SERVICE LIST
Kevin Schlosser
MEYER, SUOZZI, ENGLISH & KLEIN, P.C.
990 Stewart Avenue, Suite 300
Garden City, New York 11530
[e-mail]

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