Photographers would do well to familiarize themselves with the oft-spoken mantra, “There is no right without a remedy.” The United States has strong copyright laws protecting artists from theft. In practice, however, the high costs of taking cases to court often prevents them from enjoying these rights.
A number of photography associations, most notably the Professional Photographers of America (PPA), have lobbied for a copyright small claims court to make it easier for photographers to bring cases on their own. The resulting legislation is bill H.R. 5757, or the Copyright Alternative in Small-Claims Enforcement Act of 2016 (CASE Act of 2016).
What will a copyright small claims court really mean for photographers and the industry? Many publications reported on the CASE Act, but few actually read it in its entirety. We tracked down and read all 53 pages of the legislation to be able to form a thorough opinion on the matter. Here’s our take on the obvious benefits and the not-so-obvious downsides of the new proposed court.
Good: Artists will be able to represent themselves
Many infringers count on photographers not having the resources to file a lawsuit in federal court. Luckily, the proposed small claims process will be streamlined so that parties can easily represent themselves. It will also be possible for law students to provide representation, but only on a pro bono basis (apparently, artists deserve payment and law students don’t).
The simpler process is good for artists and freelancers, though it will still be necessary to read and adhere to a set of legal processes– for example, litigants will have to ensure that they follow the requirements for serving defendants. Preparing a claim will still likely take several hours of work, and artists may still want a lawyer to review a matter prior to choosing the small claims track.
Good: Discovery will be simplified
Discovery is where legal opponents request evidence from one another to assess the strength and weaknesses of their cases. It is an expensive and complicated process, and the new small claims provision will cut down discovery to the most essential elements.
This is good news for both infringers and photographers, who will be able to efficiently gather evidence without driving a U-Haul cross-country.
Not-so-good: Infringers will be allowed to opt out of the process
Under the current version of the CASE Act, infringers will be able to opt out of small claims proceedings once a case is filed. If this happens, the case is dismissed and the photographer will have to file a claim in federal court. This is in stark contrast to the small claims court in the UK, where infringers are required to attend the party once invited.
The problem here is that an artist who represents themselves in the small claims court probably doesn’t have a valuable enough case to go to federal court or the resources to make it happen. Infringers can simply opt out of the small claims court every time knowing that the case may never be refiled in federal court.
Participation in the small claims process must be compulsory to be effective.
Good: Claims can be decided on paper — no hearings necessary
The current copyright small claims legislation intends for most claims to be solved on paper, with hearings conducted via video chat if necessary. This is good for busy professionals who may not file a lawsuit out of fear for being dragged through lengthy court proceedings.
With that in mind, the vast majority of copyright cases in the federal circuit are settled early and do not go to trial, so in practice, this will be of limited value. Still, we think it’s a great benefit for photographers.
Not-so-good: Statutory damages for willful infringement won’t be allowed
(III) The Copyright Claims Board shall not make any finding or consider whether the infringement was committed willfully in making an award of limited statutory damages.
Artists can sometimes collect additional damages if an infringement is willful– usually when the defendant knew they were infringing or acted with extreme disregard. The copyright small claims court will not be allowed to increase statutory damages for willful infringement.
This is bad news for photographers and great news for infringers, who may get a free pass on flagrant conduct. Statutory damages for willful infringement in federal court are as high as $150,000.
Not-so-good: Photographers won’t be allowed to make claims for watermark removal
In situations where the infringer removed or added a watermark, photographers will also be unable to make a claim for the removal of copyright management information. This carries separate statutory damages of $2,500- $25,000. Given that infringers often remove the photographer’s watermark or add their own, photographers will still have to go to regular federal court to get their fair due.
The integrity of copyright management information is still a developing area of case law, and the drafters of the small claims bill possibly thought it was too complicated to include in a streamlined small claim proceeding (they did manage to throw in other parts of the DMCA, however). This absence from the list of eligible claims in the small claims court makes it less useful for photographers.
Good: Unregistered works will become eligible for statutory damages
Current copyright law photographers can receive $750 – $30,000 in statutory damages (or up to $150,000 for willful infringements) if they register their work with the U.S. Copyright Office within three months of original publication or before the infringement occurs. Under the current system, photographers must prove actual damages if a photo was not timely registered. If implemented, the current copyright small claims court legislation will let photographers collect up to $7,500 in statutory damages per work infringed (limited to $15,000 in total).
Owners of registered works will be able to collect up to $15,000 in statutory damages.
This is good news for photographers, many of whom do not take advantage of copyright registration.
Politics is a tough business, and we are happy to see that the efforts of visual artist associations in getting this legislation to the table are paying off. Photographers will benefit from the availability of statutory damages for unregistered works and the ability to represent themselves with streamlined procedures.
With that in mind these changes are needed to make the small claims copyright court a success:
- Once a case is filed, neither party should be allowed to opt out of the small claims proceedings.
- Damages for willful infringement and removal of watermarks should be available.
One trend we have noticed at Pixsy is that creatives routinely underestimate the value of their cases. We’re concerned that many artists will opt for the small claims process when they could have been eligible for more damages in a traditional court. Conversely, we’re also concerned that infringers will treat the limitations of the small claims court– reduced statutory damages of $7,500 or $15,000, no extra damages for willful infringement, and no ability to claim for watermark removal– as the new norm.
If the legislation passes, the regular federal court will still be available for all types of infringement claims. The small claims court legislation will give creators another tool for protecting their rights. We just hope it isn’t treated like a trip to the guidance counselor instead of the principal’s office.