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

Filing 21

MOTION for Default Judgment by Meyer, Suozzi, English & Klein, P.C.. (Attachments: # 1 Declaration of Kevin Schlosser, # 2 Exhibit 1 (Complaint), # 3 Exhibit 2 (Certificate of Default), # 4 Exhibit 3 (Proposed Form of Default Judgment), # 5 Affidavit of Service) (Schlosser, Kevin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEYER, SUOZZI, ENGLISH & KLEIN, P.C.,
Docket No.:
Plaintiff,
-against-

COMPLAINT

MATHEW K. HIGBEE, Esq.,
NICK YOUNGSON,
RM MEDIA, LTD.,
And HIGBEE & ASSOCIATES,
Defendants.
Plaintiff Meyer, Suozzi, English & Klein, P.C., pro se, complaining of defendants Nicholas
Nick” Youngson, RM Media, Ltd., Mathew K. Higbee, Esq., and Higbee & Associates
(collectively, the “Defendants”), alleges as follows:
NATURE OF ACTION
Plaintiff brings this action as one of the unsuspecting victims of a fraudulent scheme
in which Defendants abuse the copyright laws by filing copyright registrations over effortless and
mundane photographs, making the photos freely available on the internet for no charge so that
Defendants can thereby catch innocent people unwittingly using the photos without an
'attribution” that is requested on Defendants’ purposefully convoluted website where the photos
are offered under “license,” and then, by using harassing scare tactics to extract money from their
victims to “settle” purported copyright claims with the specter of statutory damages of up to
$150,000 to which Defendants know fully that they are not entitled.
2.

Thus, upon information and belief. Defendants have conspired to orchestrate their

fraudulent scheme through the following deceptive tactics, among others:

a. An individual who reportedly lives in England takes photographs of common text
printing.
b. A copyright registration is filed with the United States Copyright Office for the subject
photos.
c. The photos are then made available on the internet, and easily found through the use of
common search terms of the text in the photos, for anyone to copy the photos and use
such in whatever manner and for whatever puipose they wish, including for commercial
use.
d. On the website page where the photo is found, no charge or any fee is requested for use
of the photo as it appears, as Defendants know that no one would actually pay any
meaningful money for such mundane photos, yet Defendants have used this scheme to
extract thousands of dollars from unsuspecting victims as further described herein.
e. The website from which the photos can be easily copied has a convoluted configuration
by which the user would be forced to “click” through a series of different pages and
websites to try to decipher who is really entitled to the so-called copyright, under what
terms the photos can be used, what the “license” agreement is, who the actual licensor
is, what the attribution requested is and what connection the attribution has to the
copyright owner, if any, none of which is clearly set forth or even decipherable on
careful study.
f The deceptive website indieates the license is automatically given to the user, but then
requires the user to “click” through a series of hyperlinks that lead to a third-party
website where there is a different form of “license.'

2

g. Although on the original website where the photo is located, the photo is offered free
under license, there is also a free “shared” form of license agreement on an entirely
different page and website (published by an independent company having nothing to
do with these photos or the copyrights) that does not even contain the names of the
parties to that form of license or any place in which either party can sign or agree to the
terms.
h. In their pursuit of catching innocent victims. Defendants then troll the internet by using
precise search criteria tied to the photos so that they can easily monitor who has copied
the photos on the internet.
i.

Once Defendants identify someone who has used the photo(s) and unwittingly failed
to include the “attribution” that is requested on the convoluted website. Defendants
launch their extortionate tactics to harass, intimidate and scare the user into paying
thousands of dollars.

j. Although, in the website maze in which the photos appear, a party called “Blue
Diamond Gallery” is purportedly making the photos available. Defendants do not
purport to assert claims on behalf of “Blue Diamond Gallery” or the individual who
filed the actual copyright registration, or the entity for which an attribution is requested.
(On the website where the photo appears, there is no explanation of who or what “Blue
Diamond Gallery” is or what connection it has to the photos or any copyrights.)
k. As part of their extortionate tactics, Defendants send threatening letters through use of
a California lawyer and law firm to the unsuspecting victims demanding thousands of
dollars to “settle,” claiming that the use of the photo constitutes copyright infringement
and thereby exposes the user to statutory damages of up to $150,000.

3

1. Defendants’ demand letter does not provide any factual basis under which damages of
up to $150,000 would ever be awarded.
m. In fact, contrary to the assertions in the demand letter, there is no copyright
infringement under the circumstances because the photos are freely made available to
the user under a “license,” which thereby precludes a claim for copyright infringement
and simply renders the use subject to a mere alleged claim of breach of the “license,’
for which no such “statutory damages” are available and for which no actual damages
can be proved, certainly not the thousands of dollars deceptively demanded by
Defendants.
n. Defendants then continue their harassing conduct by repeatedly attempting to extract
some form of “settlement” money from their victims, including threatening suit, or in
some instances, bringing suit and then quickly settling and/or dismissing such suits.
3.

As a result of the foregoing. Plaintiff brings this action for a declaratory judgment.

pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, determining and declaring
that (a) Defendants have no legitimate claim for copyright infringement because Plaintiff did not
infringe as a matter of law, and (b) Defendants have no cognizable or recoverable damages for
breach of contract or otherwise.
4.

Plaintiff also seeks relief, including damages, for Defendants’ false, fraudulent and

deceptive practices, which violate N.Y. Gen. Bus. L. § 349.
PARTIES AND JURISDICTION
5.

Plaintiff is a professional corporation duly organized and authorized to do business

in the State of New York, with a place of business at 990 Stewart Avenue, Suite 300, Garden City,
New York 11530.
4

6.

Upon information and belief, Defendant Nick Youngson is a natural person who

resides in the United Kingdom and who claims to be photographer by trade.
7.

Upon information and belief, Defendant RM Media, Ltd. is a foreign business

entity that operates out of the United Kingdom.
8.

Upon information and belief. Defendant Mathew K. Higbee is a natural person, and

an attorney licensed under the laws of the State of California.
9.

Upon information and belief, Defendant Higbee & Associates (the “Firm”) is a law

firm with a principal place of business in and formed under the laws of the State of California.
10.

Upon information and belief, the Firm is the agent for and conducts business

through and on behalf of Defendant RM Media, Ltd., including in and throughout the United
States, including the State of New York.
11.

An actual, antagonistic and justiciable controversy now exists between Plaintiff and

Defendants with respect to which Plaintiff is entitled to have a declaration of its rights and
protections, as well as relief, from Defendants’ unlawful conduct.
12.

This Court has original jurisdiction pursuant to Title 28 of the United States Code,

Section 1338(a) (federal question) because this action arises under the Copyright laws of the
United States (17 U.S.C. §§ 101 et seq.), and pursuant to the Declaratory Judgment Act (28 U.S.C.
§§2201 and 2202).
13.

This Court has personal jurisdiction over Defendants because they are doing

business, and/or transacting business within and directed to New York, and Plaintiffs claims
herein arise from those activities.
14.

At all relevant times hereto. Defendants’ acts and practices occurred in and

throughout the United States, including in the State of New York.

5

15.

Defendants’ wrongful acts and practices, including those upon which the claims

herein are based, have crossed into and taken place in the State of New York.
16.

At all times relevant herein, upon information and belief. Defendants have acted in

concert with each other, with the knowledge and participation of each other, to commit the
wrongful acts alleged herein.
17.

Venue in this judicial district is proper pursuant to 28 U.S.C. § 1391(b)(2) because

a substantial part of the alleged events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action, is situated in this Judicial District.
FACTS
18.

On or about December 26, 2017, Plaintiff published, on one of its blogs, an article

(the “Article”).
19.

To accompany the Article, Plaintiffs marketing personnel used a generic stock

photograph (the “Image”) from a website offering “[t]he burden-of-prooffree pictures for your
web site.” (Emphasis added.).
20.

The Image was “offered” by the Blue Diamond Gallery and hosted on the following

website page; http://thebluediamondgallery.eom/b/burden-of-proof.html (the “Blue Diamond
Website”).
21.

Copies of the Blue Diamond Website and other related web pages, where the Image

was “offered,” are annexed hereto as Exhibit 1.
22.

On February 5, 2018, Plaintiff received a letter from Defendants, dated January 30,

2018 (“Demand I”).
23.

Immediately upon receiving Demand I, Plaintiff removed the Image from its

website and discontinued such use.
6

24.

Plaintiff has received no monetary benefit from the Image.

25.

Any failure by Plaintiff to provide any attribution with the Image was inadvertent,

innocent and unintentional.
26.

Any failure to provide any attribution with the Image has not resulted in any

monetary or other known damage to any of the Defendants.
27.

In Demand I, Defendants Higbee and the Firm claimed to represent Defendant RM

Media concerning the Image.
28.

The Image is a copyrighted work registered to Defendant Youngson.

29.

In Demand I, Defendants falsely contended that Plaintiff had infringed Defendant

RM Media’s alleged copyright in the Image and that “[i]f forced to go to court, [Defendants] will
ask for the maximum relief possible, which may include statutory damages under 17 U.S.C. [5/c]
504 for up to $150,000 for intentional infringement or $30,000 for unintentional infringement.’
30.

In Demand I, Defendants referenced an already-established online collection

account associated with Plaintiff to which payments were to be immediately made.
31.

In making these allegations against Plaintiff, Defendants did not set forth a good

faith basis to believe that Plaintiffs use of the Image constituted copyright infringement.
32.

In fact, Defendants sent Demand I to Plaintiff knowing that there was no claim of

copyright infringement as a matter of law because the Image was offered under license for free
including for commercial purposes.
33.

In Demand I, Defendants attempted to extract a “settlement” of $5,280 from

Plaintiff without ever explaining how Defendants arrived upon that amount, what the basis for
such amount could be, or any other explanation.

7

Upon information and belief, Defendants sent Demand I to Plaintiff as a means of

34.

harassing and intimidating Plaintiff into thinking that it was exposed to such significant damages,
even though Defendants knew full well that there was no legal basis for their claim.
Though Demand I provides that Plaintiff had thirty (30) days to respond, in

35.

furtherance of their intimidation tacties, Defendants sent multiple eommunications to Plaintiff
within that time that were harassing and threatening.
On February 13, 2018, Plaintiff responded to Defendants, informing them of the

36.

inherent flaws in their claim, the innocent and de minimus nature of the use of the Image, that
Plaintiff had discontinued use of the Image and considered the matter closed, and requested that
Defendants likewise consider the matter closed.
37.

Defendants thereafter sent additional emails and repeatedly called Plaintiff to

extract money from Plaintiff, by falsely claiming copyright infringement and demanding
thousands of dollars.
38.

Defendants then sent an escalated communication dated May 9, 2018, which

Plaintiff received on May 22, 2018, which included a purported draft of a civil complaint
(“Demand IF’)39.

In Demand II, Defendants falsely claimed again that Plaintiff “engaged in copyright

infringement when it posted [the] client’s copyrighted image on its website without a valid
licensing agreement.
40.

However, Defendants were fully aware that the Image was made available by

license (albeit in the convoluted and confusing websites that Defendants used to trap unsuspecting
victims of its fraudulent and deceptive scheme).

8

41.

In Demand II, Defendants again claimed that they are “entitled to recover Statutory

damages of up to $150,000 for each infringement and may also recover attorney fees and court
costs. See 17 U.S.C. §§ 504 & 505.'
42.

Demand II stated that the “offer will be open for fifteen (15) days from the date of

[the] letter, after which our client has instructed us to file the enclosed Complaint and seek damages
to the full extent of the law.'
43.

Upon information and belief. Defendants falsely and strategically claimed

entitlement to the maximum statutory damages, emphasized the discretionary fees and cost, and
marked Demand II with a period of urgency, to further pressure, intimidate, and frighten Plaintiff
into immediately paying the requested settlement amount.
44.

Defendants’ assertions of copyright infringement are false and deceptive for

various reasons, including, but not limited to, the fact that the Image was “offered” expressly under
license, and thus. Plaintiff had a license and did not infringe the copyright as a matter of law.
45.

Defendants are also guilty of fraudulent business practices in violation of N.Y. Gen.

Bus. L. § 349, for various reasons, including, but not limited to numerous wrongful and deceptive
acts as further set forth herein, including as alleged above and as follows:
a. promoting the Image as “free,” with no restriction on access and no requirement to agree
to terms before use, with the intent that it be so used;
b. trolling the Internet for users of the Image with intent to trap innocent and unsuspecting
victims, whom Defendants could then intimidate into unjustifiably paying thousands of
dollars;

9

c. sending demand letters falsely claiming that Plaintiff does not have a license to use the
Image and that Plaintiff infringed the Image copyright, while knowing fully that there is
no infringement as a matter of law because the Image was “offered” under a license; and
d. sending the aforementioned demand letters with the intent and purpose to threaten and
intimidate Plaintiff into paying money that the Defendants are not entitled to, while
knowing fully that there was no good faith basis to believe any claim existed.
FIRST CLAIM FOR RELIEF
(For Declaratory Judgment of Non-Infringement)
46.

Plaintiff repeats and re-alleges each of the allegations of this complaint as though

fully set forth herein.
47.

There is a substantial controversy between Plaintiff and Defendants, and they have

adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory
judgment.
48.

By reason of Defendants’ wrongful allegations of infringement and other

wrongdoing committed by Defendants as alleged herein, a declaratory judgment is necessary to
resolve, clarify and settle the respective rights and legal positions of the parties.
49.

As such, the Court should issue a declaratory judgment that (a) Plaintiff s use of

the Image under license does not constitute copyright infringement as a matter of law, and (b)
Defendants cannot sustain any claim for breach of contract (any license) because there are no
resulting damages.
SECOND CLAIM FOR RELIEF
(For Defendants’ violation of N.Y. Gen. Bus. L. § 349)
50.

Plaintiff repeats and re-alleges each of the allegations of this complaint as though

fully set forth herein.
10

51.

By reason of the Defendants’ deceptive practices of attempting to extort money

from Plaintiff under false claims of copyright infringement and as more fully described in this
complaint, the Defendants have violated N.Y. Gen. Bus. L. § 349 and thus, Plaintiff is entitled to
damages from Defendants, jointly and severally, in an amount established at trial.
WHEREFORE, Plaintiff Meyer, Suozzi, English & Klein, P.C., respectfully requests
judgment as follows:
1)

Issuing a declaratory judgment that (a) Plaintiffs use of the Image under license

does not constitute copyright infringement as a matter of law, and (b) Defendants cannot sustain
any claim for breach of contract (the license) because there are no resulting damages.
2)

Awarding Plaintiff damages against Defendants, jointly and severally, including

Plaintiffs full costs of this litigation, including reasonable attorneys’ fees as provided for in 17
U.S.C. § 505 and N.Y. Gen. Bus. L. § 349(h); and
3)

Awarding Plaintiff such other relief as this Court may deem just and proper.

Dated: Garden City, New York
June 6, 2018
MEYER, SUOZZI, ENGLISH & KLEIN, P.C.
Pro Se
A/
By:
Kevin Schlosser
990 Stewart Avenue, Suite 300
Garden City, New York 11530-9194
Tel.: [phone]
[e-mail]

11
4112009

EXHIBIT I

Burden of Proof

5/28/2018

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The Blue Diamond Gallery
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