Speaking truth to power is an experience unlike any I have had before. It is at once intimidating, exhilarating, difficult and yet also strangely easy.
On Sept 27th I testified before the House Judiciary Committee in support of the small claims bill commonly referred to as The CASE Act. The days prior were a whirlwind of office meetings, strategy sessions and a crash course in what it means to show up on The Hill with something to say.
I have always been in favor of The Case Act, which ASMP and our Coalition partners began working on during my term as Chair of the National Board. But even at that level of involvement, it often seemed an overwhelming and heady subject. From down in the trenches of small business life, it was hard to understand the nature of the battle and the complicated game of chess that is Washington D.C.
My visit to The Hill changed all that. That place is like another country – possibly another PLANET – with its own set of cultural guidelines and customs. I felt at times like a backwoods provincial citizen. Yet at so many points during my visit, I wished fervently that all independent creators could directly experience the passion, frustration, skill, and dedication of those fighting on our behalf. This whole bill is so David vs Goliath, and it would not be hyperbolic to say that joining the Coalition for this hearing completely rocked my world. It gave me hope even while it made me angry, and those two things combined are what I mean when I say speaking truth to power can be easy. It is a belief in the cause and sharing the honesty of a situation that makes it so.
Below are some photos and field notes that I hope will bring you into the experience – my experience – from the point of view of David with his sling, trying to push for change. My thanks to Kaveh Sardari and Michael Hanlon (Michael drove all the way from Rochester, NY to support us!) for the use of their photos and their presence as friendly faces in the crowd. Much thanks also to every creator and supporter who sat in the audience or watched the hearing from afar. It meant so much to experience such a powerful sense of tribe.
Finally, below the photos you will find a brief synopsis of Copyright now and what The CASE Act proposes to change – written for those who are as allergic to legalese as I am. There are also links where you can view the hearing, follow our future progress and – most importantly – TAKE ACTION. Advocacy is a verb, and I think especially so when you’re the little guy.
One of the creepy-cool things about The Hill are the tunnels that connect the different buildings. We had been using them frequently to get to various meetings with staffers (people who work for the Representatives), but my mind labeled this trip (above) The Long Walk…the final march from our staging area to the hearing room.
It’s pretty tense when you’re squished between two opponents of the bill you support, with no concrete assurance of how things will go… and the hearing doesn’t start, and doesn’t start, and… doesn’t…start. There was a bill signing going on somewhere, so our extra 20 minute wait was filled by Congressman Darryl Issa making jokes to keep us occupied.
But then it gets really serious when you swear to tell the truth, the whole truth and nothing but the truth. I had heard it a hundred times on TV, but it’s very different when it comes out of your own mouth. I was surprised at how profoundly the swearing-in anchored my feet to the floor and steeled my nerves (while simultaneously shoving my heart into my throat).
The view behind me. The blue shirts – courtesy of the Copyright Alliance (CA) and given to all supporters – say Creator | I Support the CASE Act on the front and #MySkills PayBills on the back.
The view in front of me. This is what I meant about testifying being intimidating.
The testimony itself was not scary or difficult. After all, it was written by me and accounts for my experience, which made it a lot easier to express honestly and with emotion. The most nerve-wracking part – unexpectedly – were the questions. I didn’t have a sense of what “side” (if any), a Congressman might be on. While a question was being asked, my mind would immediately revert to crime shows where a well-meaning witness was skillfully trapped into ruining everything for the good guys. I don’t think this was the intent at all, in fact, I think the Representatives were both genuinely curious as to my experience and also simply gathering information, but it took some effort to overcome the remnants of my CSI watching days.
This hearing accomplished a first step, that of putting on the record various testimonies about the positive effects of the small claims bill and what our Coalition has already done to meet the demands of opponents. That is what we set out to do, and from what I have heard, we succeeded. It definitely felt good. But this step is one of many; once the new Congress is seated, we begin again. We must push the bill to the markup stage, where, as a bill, it is put before House Judiciary Committee for a vote and then, if affirmed, moved to the full House for a final vote. After THAT, we must support and defend it yet again in the Senate. The path ahead is long and difficult and we must walk it to the very end before we run out of funds. If we don’t get there now, I do not know when we will have the chance again. We have made it through Gate #1 and I dearly hope we can reach the finish line.
This bill is without question a group effort. There are many people putting A LOT more work into this than I ever could, and they deserve to be appreciated, acknowledged and supported by all of us. The best way to do that is to inform yourself (see below) and watch for calls to action. I wouldn’t have been able to contribute this small part without ASMP Executive Director Tom Kennedy, ASMP Advocacy Counsel Mike Klipper, The Copyright Alliance & their CEO Keith Kupferschmid (who had the nerve and good humor to reference Animal House during the hearing), Alicia Calzada, NPPA’s Advocacy Chair and counsel, and last but certainly not least, David Trust, CEO of PPA, whose devotion to this cause goes back well over 12 years and whose desire to see this passed is a force to be reckoned with. This is a group effort on a bipartisan-sponsored bill. It is a shining example of working together in a divisive and testy political environment. Find and follow these people who lead your fight. They are our Captains and they need us all, photographers and visual creators of every niche and caliber and location, to march as an Army behind them.
In the very simplest of terms:
- Need to find a lawyer to take your case – most lawyers will not take a case if the value of the infringement is less than $30k in recovery. The average infringement suffered by photographers is valued at $750-$3000.
- Must be ready and willing to pay up to $350,000 to finance a federal court infringement suit through appeal and there is no certainty that even if you win, that your opponent will pay your legal costs.
- can recover $750 to $30,000 and far more for willful infringements (up to $150,000).
- if you don’t win, be prepared to not only to pay your legal fees, but you may also have to pay those of the company or person you lost to.
How the Copyright Situation Would Change Under the CASE Act: You Could Decide Whether to Sue In Small Claims OR Use Federal Court.
If you use Small Claims you:
- Need to file a claim with the Small Claims Board within the Copyright Office for a fee of not less than $100 and then serve notice on the defendant.
- Will have to prove your case to a Board of two Copyright Lawyers and one lawyer with both Copyright and Mediation Expertise – you can do this online, you do not have to be physically present.
- can claim up to $30,000 in damages if your infringed work is timely registered.
- can proceed without an attorney, but if you desire legal advice you can do so, including with legal students (overseen by a licensed faculty member) available to help you.
- if you lose, you lose. If you win, you can collect.
The founders of America believed that retaining control of the use of their work was so fundamental to the health of creators that they wrote it into the Constitution – Article One, Section Eight, Clause Eight. That right is still afforded us, but without a remedy, it is not truly a right at all. After it is all said and done, this bill will likely not be perfect and we will have to make some compromises. And yet, if The CASE Act is passed it will be a huge step toward providing us all with a realistic, streamlined and affordable remedy to defend our rights.
CALLS TO ACTION:
- Watch the hearing. If you don’t have time to watch the entire thing, watch the 5 testimonies – 3 for and 2 against. It will take 25 minutes and will give you an excellent sense of the situation. This is the video you need: start at the 19 minute mark…as I mentioned, we got a late start.
- Follow ASMP’s Small Claims Report
- After the upcoming elections, write your Senator and Member of the House of Representatives. This is especially important if they are newly elected, but also worth it if they are returning. After seeing the genuine interest in my personal story, I feel it is best to forego the ease of the form letter and instead handwrite a heartfelt, polite and honest couple of paragraphs about your situation and what you wish to see happen.
If you have any questions about the bill, my experience or what you can do to help, please feel free to reach out to me anytime at firstname.lastname@example.org
Jenna Close is the past-Chair of the ASMP National Board. She is currently the Director of Photography at Buck the Cubicle and specializes in still and motion stories for trailblazing humans and purpose-driven brands. buckthecubicle.com