[by Tom Kennedy]
The arrival of the digital age has brought with it a series of opportunities and challenges that are creating a world of paradox for independent creators, including ASMP members. On the one hand, digital technology aids and abets the expression of creative vision in ways unimaginable even just a generation ago. On the other hand, the same technology has fueled a great expansion of the possibilities for infringement as digital images get appropriated and shared without credit or compensation across a plethora of social media platforms.
The ability to control work and benefit from one’s creation has been a part of the copyright system since the founding of the Republic. Indeed, James Madison, in the Federalist Papers described the concept of copyright as one in which “the public good…fully coincides with the claims of the individuals.” The system was designed to facilitate the expansion of public discourse to produce an enlightened citizenry while also offering sufficient incentives to creators to continue to create work facilitating twin goals of “progress of science” and free speech.
Since its inception in 1790, U.S. copyright ’s original terms have been redefined and expanded to address new forms of media expression such as photographs, movies, and sound recordings, while also acknowledging the implications of new mediums of distribution including broadcasting and now the Internet.
Given the expansion of infringements fueled by the Internet, it is essential that the copyright laws be updated to account for the ways in which the media landscape is being reshaped by digital technology. It is equally imperative that such updating includes the ability for individual creators like ASMP members to secure effective remedies to address infringements.
Going forward, ASMP believes that there is a need for the creation of a small claims tribunal system as an alternative mechanism for dealing with infringement. Many infringements that do not rise to a sufficient threshold to incentivize attorneys to bring cases to federal court still constitute a significant income loss to the creator.
This is the discrepancy we want to address.
We believe photographers, among others, need a mechanism that promotes speedy, fair, and low cost adjudication so that effective remedies are within reach for all creators.
We are working now with Michael Klipper, a Washington D.C. attorney to develop a framework for this proposal. We see it as a crucial element as the House Judiciary Committee continues discussion of solutions to be included in future copyright reform legislation. In developing a framework that would pass muster with the U.S, Copyright Office in concept and execution, and be ratified in law by an act of Congress, we are working with groups such as the APA, DMLA, GAG, NPPA, and PPA representing all manner of visual artists. We believe full development of an effective remedy can best be accomplished if all visual groups work toward a consensus position that is then articulated as the basis for legislative action.
While other elements of copyright reform legislation previously addressed are also under discussion, we see effective remedy for infringements as central to addressing imbalances that left unchecked would propel the entire photographic community toward the cliff of market failure.
ASMP Executive Director Tom Kennedy is an internationally known visual journalist with 35 years of print and online journalism experience including positions as Managing Editor for Multimedia at The Washington Post and Director of Photography at the National Geographic Society.