I recently had the opportunity to represent ASMP and the photography community at a two-day roundtable organized by the Center for the Protection of Intellectual Property (CPIP). The participants included 17 scholars (professors of law), 7 lawyers, 1 association president, 1 lobbyist….and me. On the drive to the event I became increasingly nervous that I would be in over my head, unable to understand or contribute to the issues under discussion. Nothing could have been further from the truth, and the drive back home got me thinking in depth about how photographers struggle to comprehend these legal issues and what is really at stake for us. Those two days changed not only my view of understanding, they changed the spirit of my involvement. I am glad to share what I learned, so that photographers everywhere might change their views as well.
Why Should We Care?
Protecting our photos is not sexy. It’s not glamorous. It ain’t fashion photography. It is, however, a right guaranteed by Article One, Section Eight of the U.S. Constitution, and codified in the Copyright Act of 1976. When we take or make a photo, we own it. If we own it we can dictate where it is used, how it is used, and how much that usage will cost. Wouldn’t it be fantastic if it were as simple as that? Yeah, well, sorry. No easy button yet. But there are people working on it.
In order to best protect our work, we need to register it with the Copyright Office. Only by doing so, can we go to federal court to fight an infringer. In order for the Copyright Office to be solvent, we need to pay a registration fee. This has never been a fun or easy task, and the Powers That Be have just made it harder. Beginning in Feb 2018, group registrations of photographs are now limited to 750 images, the new title and spreadsheet requirements are cumbersome, and at $55 per upload it’s an ongoing financial burden.
And if that barrier isn’t enough to discourage, currently the only avenue to enforce copyright infringement of our work is our dedicated time pursuing a case in federal court—an enormously expensive and burdensome process that is well beyond the means of the vast majority of professional photographers. But, help may be fast approaching. The small claims court bill pending in Congress would be far less arduous and costly to navigate.
In preparation for this roundtable, I decided to do a reverse image search on four (4) of my images (using images.google.com) to see what kind of infringements I could find. This took 45 minutes and returned 110 absolutely certain infringements.
I then found a comparable image for each of mine from Getty Images. To find an average low end of lost income, I used Royalty Free pricing. To find an average high end of lost income, I used Rights Managed pricing and based it on the closest web usage details I could find. I came up with $50 to $1240 per image respectively. I then took these low and high numbers and multiplied them by the number of total infringements (110). The range for potential lost income came out to be $5500-$136,400.
The dead average of that range is: $65,450. That’s a smidge above smack in the middle of what the average photographer makes in a year, and that’s for 4 images. FOUR IMAGES. There is an argument out there that we should all just suck it up and make up for lost licensing revenue by increasing our number of new clients. $65k a year is a level of income that should not have to be compensated for year after year by working harder and marketing more. Licensing is nuanced, but you see my basic point.
What Does Small Claims Do For Us?
It is fair to call myself a “selective copyrighter”. Despite 6 years on the National Board of the American Society of Media Photographers, and 2 years as Chair, I have always struggled with registering my Copyright. The way I see it, it’s a lot of work for very little return. I have only ever registered some of my images – less than a quarter of what I shoot per year. Registration is a matter of principle as much as anything. Why spend the money necessary to register and be eligible to sue infringers in federal court, if you can’t afford to bring that case? I would like to believe that the rights afforded us by the Copyright Act are enforceable, but the reality is that for many of us they are not. I hate theft of my work as much as the next guy, but I do not have the time and money to spend in federal court.
The Small Claims bill that ASMP, NPPA and some of our sister organizations have been pushing for more than ten years has been introduced by two members of the House Judiciary Committee; Rep. Hakeem Jeffries (D-NY) in partnership with original co-sponsor Rep. Tom Marino (R-PA). HR 3945, the Copyright Small Claims Enforcement Act (the “CASE Act”) 0f 2018, has been drafted with input from our groups and embraces many of the recommendations for such legislation put forward by the U.S. Copyright Office after years of study and hearings. It is a giant step in the right direction and a chance to start correcting a system that has long been both ineffective and frustrating
The bill would allow independent rights holders such as ourselves to:
-present infringement claims to a tribunal of judges, two with a copyright law background and 1 with a mediation background;
-pay a modest filing fee to initiate claim;
-participate in the entire process online so that no travel expenses would be required;
– have the option of proceeding without an attorney
-recover a maximum of $30,000 in damages per suit; and
-pass on the small claims process and go fight in federal court
If you look at the long game, this bill has the potential to shift the entire culture of “everything on the Internet is free”. Yes, that’s the looooong game, and change has to start somewhere. Companies who are banking on our inability to take them to federal court will have to reassess the risk of outright theft. Small-time thieves who may or may not have “done it on purpose” will be taught a lesson by way of their wallet, and that lesson will trickle down to their peers.
What Can We Do To Help?
The two most helpful things you can do right now are:
1) Collect Infringement Data:
Download the template and follow the instructions to do a reverse image search on 5 of your most popular images. Collect the relevant data about that search and fill in the template. Here’s an example. Email the template to Jenna Close at firstname.lastname@example.org. You can elect to remain anonymous if you wish. Download .docx version. Download .pdf version.
2) Get on the horn!
Contact your representatives from this list and tell them you support HR 3945, The CASE Act bill.
Share this post.
Talk to your colleagues and friends. Photographers, painters, writers…fill them all in.
3) Inform yourself in more detail:
ASMP has been working very closely with Sandra Aistars, a Clinical Professor at George Mason School of Law and Director Copyright Research & Policy, Center for the Protection of IP. She wrote a paper that is worth reading. Don’t worry, it’s digestible by those not fluent in Legalese. You can find it here. Please note: at the bottom of the Abstract is a link to download it.
Keep up to date and monitor Calls to Action on ASMP’s Small Claims Report page.
There’s nothing to be done about the invention of digital technology or the Internet…that ship has sailed. But there is something to do about infringement, and the window on that opportunity isn’t open for long. Attending the CPIP roundtable left me both astonished and humbled by the level of great minds that are fighting alongside us. ASMP, CPIP, NPPA and various other friendly neighborhood acronyms are more than halfway up the Hill right now. That’s progress, but we still need every bit of your weight behind us.
Jenna Close is the immediate Past-Chair of ASMP and a commercial photographer based in San Diego. She can be found at p2photography.net