A Little Relief for Visual Artists
If you are like myself, your day is consumed with the details of a shoot, how to keep your clients happy, getting more work, and sometimes, maybe sometimes, the ability to be creative. I do not believe there are many of us who have gotten into a creative field like photography or film because they wanted to do bookkeeping, figure out a marketing plan that might work or deal with your work being ripped off. But the reality is anyone of the above left unattended could be at best a loss of revenue or at worst, the IRS seizing your business. We might not like it, but we have to face the fact that if we are making a living off taking pictures, the “living” part or the financial aspect of what we do, needs to be protected.
Now in comes the Case Act or H.R. 3945, which, unless derailed, is about to be marked up and voted on in the house in the next few weeks. The idea here is that creators will have another tool in their arsenal to combat infringements, with values under 15k, that they can use when the don’t need extensive discovery, when federal proceedings may be too costly and speculative to assume, and when a more streamlined procedure might work better for them. Now you will have a Small Claims Tribunal option. If this is one of those images you did not register (bad on you, but that’s another story) and you don’t want to feel like a victim, The Case Act establishes a Federal Small Claims Tribunal that will hear your case with or without out an attorney and possibly without the higher cost associated with a full blown Federal Case. There is a reason for the expression, “don’t make a Federal Case out of it.” Federal cases can be big and costly. Sometimes that works for you, not against.
But sometimes it works against you, and now you have another avenue to choose.
The idea was first floated around 2011 by the Copyright Office at the behest of several trade organizations looking for a solution to all the Internet theft (and general theft) out there when it comes to the copying of visual imagery. As I am sure you are aware, infringement is rampant. The ease of copying digital files has created an environment where theft wins over licensing almost every time. Giving photographers a venue to hear these cases at lower may fill a great void and provide justice for some creators who cannot currently find it. In 2013 we were invited to a roundtable discussion for Copyright Small Claims and discovered the first issue with any potential legislation is this; The constitution affords everyone the right to a jury trial. How do you get a potential infringer to agree to waive their right to a jury trial? The answer, incentives!
So started the long journey of creating a bill that works for everyone, with just enough incentives to make it work, and not too many to penalize creatives if the case doesn’t go their way. One of my colleges likened it to sausage making and I have to say it is close. But after many years and much participation by APA, our amazing General Counsel Jamie Silverberg and all the other organizations with insightful input, we are hoping to have a bill that works. The idea in general is that the Case Act is another tool to use in the defense of our work. As written, (and we do not know what the next few weeks will bring) the bill is not detrimental to artists who register their works and want to make a Federal Case out of all their infringements. It would be added as an additional resource to give artists an additional option they do not now have to fight for their work, and to reclaim the income they have lost in syndication and stock sales to infringement.
As an organization APA is proud of the effort we have put into this piece of legislation and would ask that you support it. Anything that helps our livelihoods is a welcome relief.
APA Advocacy Chair / EVP Emeritus