As the Executive Director of American Society of Media Photographers (ASMP) and an internationally known visual journalist, I can certify that copyright infringement is a massive problem for photographers everywhere.
While the digital age has provided us with new tools and opportunities for distribution to a global marketplace, it has also opened up a Pandora’s box when it comes to the challenge of enforcing copyright holder protections for visual creators.
Professional photographers find it difficult to maintain control of their work in a world when images travel across the globe in an instant upon release on the web. The ability to earn a living depends on the ability to license work and maintain the integrity of that process through the life of an image.
Today, an image may “go viral” after initial publication and licensing, but it may travel without accompanying metadata that details appropriate credit and licensing terms.
Because this information is disassociated after first publication, web publishers seeking to use the images legitimately may not be able to locate the rights holder or ascertain the appropriate licensing terms. Further, compounding the problem, we live in a world when more than one generation has been raised with the idea that access to Internet content, including images, should be free and completely unfettered.
All of these factors undermine licensing as a means for visual artists to earning income from their work.
Why a small claims solution must become law
To effectively address copyright infringements in the digital age, we must start by acknowledging the realities of our economy and legal system. It is not a stretch to say under current copyright law, professional photographers have rights, but no remedies, when it comes to dealing with copyright infringements.
It is now possible for a single popular image to generate hundreds, if not thousands, of infringements on websites all across the Internet. Responding to infringements with takedown requests under terms of the Digital Millennium Copyright Act often translates into a giant game of “Whack a Mole.”
Currently, the only other recourse is to pursue infringement resolutions in Federal Court, but that’s hardly a practical solution. For starters, most attorneys will not bring such a case forward unless the initial value of the infringements is at least $30,000.00.
Secondly, the cost of litigating such cases can be prohibitive for visual creators, in terms of both time and money. A recent estimate put the average cost to pursue an infringement case in Federal Court at about $350,000.00 in legal fees. That is a cost few can bear, particularly when available statutory damage resolutions may not even rise to that level.
These factors all make the current system untenable for photographers, graphic artists, and other individual visual creators seeking the protections promised under the Constitution to copyright holders for their intellectual property.
To address this issue head-on, American Society of Media Photographers (ASMP) has been working to get Congress to create a small claims tribunal as an alternative to Federal Court to resolve infringements.
Years of persistent engagement with the US Copyright office have now borne fruit with the introduction of H.R. 5757 “Copyright Alternative in Small Claims Enforcement (CASE) Act of 2016”, a bill introduced by Rep. Hakeem Jeffries (D-NY) and co-sponsored by Rep. Tom Marino (R-PA) to authorize establishment of a small claims board within the U.S. Copyright Office to resolve infringement disputes.
We are also anticipating introduction of another version by Rep. Judy Chu (D-CA) after the August recess, and we welcome these developments as an important next step in process.
From ASMP’s perspective, the key provisions of the H.R. 5757 are these:
- Creates a Board within the Copyright Office to hear claims that do not exceed $30,000, with adjudicators with experience in copyright law and alternative dispute resolution.
- Provides a less formal, streamlined process where legal representation is optional, where proceedings are conducted via video and the parties need not appear in person at the Copyright Office.
- In order to satisfy constitutional norms, allows defendants upon receiving notice, to opt out within a certain time frame and choose federal court instead.
- Enables the court to not only decide copyright infringement cases, but contractual issues related to the infringement.
- Empowers the Board to award actual damages, profits, or limited statutory damages.
- Allows defendants to raise all defenses available in federal court, including fair use.
During the forthcoming legislative process, ASMP will urge Congress to adopt additional provisions that ASMP believes are necessary to the overall success of any small claims process.
For example, under H.R. 5757, a photographer or other claimant who is confronted with an uncooperative defendant who refuses to abide by a decision of the Small Claims Board must go the federal court in the District of Columbia to enforce that decision.
This is a major problem for small copyright claimants who live outside the District of Columbia and would be forced to appear and/or retain local counsel to seek enforcement of such a decision. We believe it is imperative that any forthcoming bill must provide that cases should be able to be brought in federal courts more convenient to the claimants.
ASMP looks forward to working with Representatives Jeffries, Marino, and Chu as Congress goes about the critical task of ensuring that the creative works of photographers, illustrators, graphic designers and other visual artists are appropriately protected so that they are incentivized to continue producing works that change how people see their world.
If you’d like more information about this topic and would like to find out what you can do to help, please take a minute to read through this Open Letter To 2016 Political Candidates.