Legally protecting your copyright currently requires deep pockets and free time to sit in federal court for months. Legislative changes are currently on the horizon to provide those with less means a more viable alternative for legal protection.
The conversation about a small claims option for copyright cases has been going on since at least 2006, when the U.S. Copyright Office gave a statement in front of a United States House of Representatives subcommittee on the matter. Since that time, the U.S. Copyright Office has been studying the challenges the current system presents to small claims disputes and how to repair current legislation to remedy them. Some public inquiries were made in 2012 and 2013, public hearings were held in New York and Los Angeles in 2012, and a full report was issued in late 2013. For the past year, the Professional Photographers of America (PPA) and other groups have been advocating for a small claims bill as the House Judiciary Committee reviews current copyright law. As that bill grows closer to reality, they are currently expanding their efforts and are back on Capitol Hill to widen their scope to other representatives and to the Senate, hoping to give the bill enough attention to pass quickly once it’s introduced.
Why is this so important?
Why is a small claims option for copyright infringement important to you? Maybe it hasn’t happened to you yet, but I’m sure every one of us can recount a story of copyright infringement told to us by a friend or someone in a Facebook group. You’re walking down the street and see one of your headshots being used on a bus ad for dental floss; or your product shots end up being photoshopped into website materials; or your wedding portfolio is being used by another photographer two states over. There’s certainly no shortage of copyright infringement cases in the wedding and portrait world; there’s even a website dedicated to exposing people who steal photos! And as most wedding and portrait photography business are small businesses – not large corporations – we’re extremely limited in our resources when it comes time to pursue full legal actions against these infringements.
Once you’ve had your copyright violated and you’re ready to take action, you quickly realize how limited the options are. You can lawyer up and write a very formal letter to advise the infringing party that you are owed money as the copyright holder and if you’re lucky, they’ll settle and pay. But most of the time they’ll tell you to take them to court – which as it currently stands with copyright legislation, means filing a lawsuit in a federal court – knowing that the long and expensive process will likely discourage you in the first place.
“In a typical civil case, after pleadings, discovery, motion practice and trial (as well as possible appeals), attorney’s fees can run to tens of thousands of dollars or more, and other costs can run to thousands of dollars or more.” – U.S. Copyright Office, Remedies for Small Copyright Claims, March 2006
A survey with the American Bar Association revealed that the total is actually around $350,000 and that most attorneys won’t take on a case without an estimated settlement of at least $30,000. So if your claim is for $10,000 (which isn’t a small sum for a small business owner!), you’ll be facing the huge up-front legal fees to recuperate relatively little perhaps years down the line, if you can even convince an attorney to take the case on at all.
Real evidence that the current system is flawed
When the Copyright Office issued Notices of Inquiry for public feedback on the state of copyright law, numerous first hand accounts were received as to the difficulty small business owners face when pursuing copyright protection.
“I am writing today in regards to the difficulty in making a copyright claim. I am a photographer and often find people who are infringing on my copyrights. There are few copyright lawyers in my area and it has been difficult finding an attorney willing to take on my copyright cases because they feel the revenue gained would not be worth their effort. That leaves me holding the bag, sort of speak, with no legal recourse even though the law is in my favor. I would like to see the process made easier for people like me who have the occasional small claim. Without any means to prosecute infringers, they will only continue to think it is acceptable to steal the work of others.” – Robert Byron
“Allowing copyright infringement cases in small claims court would be beneficial to small business owners. As a photographer, my photographs are my business. I have had several issues with unlicensed use of my work. The best I can do is to ask that the person to cease use and hope for the best. I am not able to financially afford an expensive federal case against unlicensed use. Please allow copyright infringement cases to be brought to small claims court.” – Julie Magers Soulen
“As a freelance writer, photographer, and musician, I am keenly aware of the steep odds against the individual when a copyright is infringed. Considering the minimal income I earn from my copyrighted creative output, the cost of merely retaining a lawyer to look over the evidence could be prohibitive. The burden of pressing a lawsuit would be out of the question – especially since many violators are online entities whose principals may not even be located in the United States. We need a system for prosecuting copyright small claims that relieves individual copyright owners of the high costs of taking an infringement case to court.” – Elsa Peterson
One thing that has become clear from a small business perspective is that currently the most viable option is to issue a DMCA takedown notice. While this doesn’t provide any monetary compensation, it at least puts out the fire of unauthorized use..until it pops up again.
Help copyright law become more accessible
As the House Judiciary Committee currently reviews copyright law, the PPA and other groups are working hard to keep the issue of a small claims bill at the front of elected official’s minds. Give them a hand and take some time to research this important issue in more depth by visiting the U.S. Copyright Office’s policy report, then contact your representatives and senators to let them know that this is an important issue to you as a creative professional.