Why NANPA is supporting a copyright small claims tribunal and why you should too
by Jane Halperin, NANPA Advocacy Committee
Let’s face it, the current U.S. copyright system does not work for the majority of photographers who operate as individuals or small business owners for a variety of reasons, including the complexity of registration. But perhaps the most significant reason is due to the inability of photographers whose work product is not low volume/ high value to enforce their ownership rights against infringers.
The difficulty facing small creators is that the only real option available to address copyright infringement is to sue the infringers in federal court. The problem with that is, for most photographers, is the cost of suing in federal court generally exceeds the value of the infringement. An industry study done by the Professional Photographers of America in 2015 indicates that many professional photographers estimate the value of their infringement to be less than $3,000 which is enough to make a real difference to a photographer’s livelihood. However, a report done by the American Intellectual Property Law Association in 2011 estimated the cost of bringing an infringement suit in federal court to be more than $350,000. In other words, it is essentially a right without a remedy and the result is that the vast majority of photographers have very little protection under the existing law.
NANPA, along with a group of like-minded organizations representing photographers and graphic artists (referred to informally as the Visual Artists Coalition), has been working with members of Congress, specifically Hakeem Jeffries of New York and Judy Chu of California to address the issue of enforcement.
Recently Rep. Jeffries (D-NY), Rep. Chu (D-CA), Rep. Lieu (D-CA), Rep. Marino (R-PA), Rep. Smith (R-TX) and Rep. Collins (R-GA) introduced H.R. 3945, the Copyright Alternative Small Claims Enforcement Act of 2017 (the “CASE Act of 2017”), to create a Copyright Claims Board within the Copyright Office in order to give individual creators and small business owners a viable means to defend their ownership rights.
The highlights of the bill in its current form include:
- The creation of a Copyright Claims Board composed of three hearing officers
- Voluntary participation including the ability to opt out and go to district court instead
- The ability to participate with written submissions and electronically
- The ability to participate without an attorney or with pro bono assistance from law students participating in a legal clinic
- A cap on damages of no more than $25,000 per work with a total cap of $30,000
- The bill also gives the Copyright Office the authority to create by a lower-tier board with only one hearing officer who would hear cases with damages of $5,000 or less.
If you are wondering how this might directly affect you, click on the Advocacy page and take a quick read of some of the examples of infringement submitted to the Visual Artists Coalition by individual and small business photographers and graphic artists. I am sure that many of you have your own stories, so please feel free to add them, if you wish, by submitting them to firstname.lastname@example.org. The more anecdotal evidence we have, the better.
On the Advocacy page you can also find:
- the press release sent out by Rep. Jeffries and the other original sponsors
- the press release sent out in support of the bill by NANPA and rest of the members of the Visual Artists Coalition
- H.R.3945, the CASE Act of 2017, the progress of which will be updated as it moves through Congress
- a link to a webpage created specifically for the members of the Visual Artists Coalition for the purpose of providing information regarding the small claims initiative where you can get additional information on what is happening, and find out who your representative is and how to contact him or her.
NANPA strongly encourages you to contact your representative and ask him or her to co-sponsor the bill (the more sponsors it has the more likely it is to pass) or to otherwise support the bill when the time comes to vote. If you like, use the stories on our website or your own to explain the issue to and encourage support from your representative. Copyrightdefense.com/action