Why A Small Claims Solution Must Become Law
To effectively address copyright infringements in the digital age, we must start by acknowledging the realities of our economy and legal system, as they exist today. It is not a stretch to say under current copyright law, professional photographers all too often have rights, but no remedies, when it comes to dealing with copyright infringements.
While the digital age has provided us with amazing tools and new opportunities to create, market, produce and distribute imagery to a global marketplace, it has also opened up a Pandora’s box when it comes to the challenge of enforcing copyright holder protections for photographers and other visual creators, as small business owners.
Professional photographers are finding it very difficult to maintain control of their work in a world when images travel across the globe in an instant upon release into the digital marketplace. The ability to earn a living depends on the ability to license work and maintain the integrity of that process through the life of an image. Today, an image may “go viral” after initial publication and licensing, immediately being downloaded and re-posted repeatedly, but traveling instantaneously and globally without accompanying metadata that details appropriate credit and licensing terms. Because this information is disassociated after first publication, those web publishers seeking to license images legitimately may not be able to locate the rights holder or ascertain the appropriate licensing terms. Further, compounding the problem, we live in a world when more than one generation has been raised with the idea that access to Internet content, including images, should be free and completely unfettered. All undermines the idea of licensing as a means to securing a livelihood from originally created images.
Infringements have proliferated and it is now possible for a single popular image to generate hundreds, if not thousands, of infringements on websites all across the Internet. Responding with takedown requests under terms of the Digital Millennium Copyright Act translates into a giant game of “Whack a Mole” that photographers cannot possibly play successfully. Many of our ASMP members experience the futility of takedown notices as an enforcement vehicle when infringements resurface on the same websites within minutes of a takedown order being carried out.
Currently, the only other recourse is to pursue infringement resolutions in Federal Court but that too is a highly problematic solution. For starters, most attorneys will not bring such a case forward unless the initial value of the infringements is at least $30,000.00 according to a recent ABA study. Secondly, the cost of litigating such cases can be prohibitive for visual creators, in terms of both time and money. A recent estimate put the average cost to pursue an infringement case in Federal Court at about $350,000.00 in legal fees. That is a cost few can bear, particularly when available statutory damage resolutions may not even rise to that level.
Since most visual creators are individual small business owners, they lack the time and resources to face off against deep-pocketed infringers who may hope to exhaust time, money, and resolve by extending cases through complication and delay in Federal Court.
These factors all make the current system untenable for photographers, graphic artists, and other individual visual creators seeking the protections promised under the Constitution to copyright holders for their intellectual property.
To read the full blog post by Brad Moore, click here.