Copyright Small Claims For Photographers Have Arrived

Posted on 12/29/2020 by Jim Pickerell | Printable Version | Comments (3)

Photographers got a late Christmas present when President Trump signed the massive 5,593-page, $1.4-trillion omnibus spending and COVID-19 relief bill, titled the Consolidated Appropriations Act, 2021. () Buried deep within this omnibus spending bill was the 63-page CASE Act.

The CASE Act has been working its way through Congress for more than 10 years and sets up a small claims court within the U.S. Copyright Office. This makes it possible for copyright infringement disputes to be heard outside of expensive federal copyright litigation system and creates an affordable process for independent creators to enforce their rights without having to hire attorneys or pay hefty court fees.
This should benefit all copyright holders including: photographers, illustrators, graphic artists, songwriters, authors, bloggers, YouTubers, and many other creators.

Civics Lesson

This is a perfect example of how our dysfunctional government works. Instead of dealing with issues that might benefit citizens as they arise Congress has developed a system of lumping lots of small, diverse issues – the Good, Bad and the Ugly –into one must pass “omnibus” bill. Most such bills are of interest to small groups of the population, The omnibus bill focues on one big issue – in this case Covid-19 relief payments that are expected to benefit 89% of all households– and hopes that none of the members of Congress will have time to pay attention to all the other little issues. In most cases the members simply follow the leadership’s recommendations. But if they do bother to try to understand what is actually in the bill, there will probably be at least one thing that really benefits a few of their constituents. If there are also things the Congressperson or Senator doesn’t like, it is probably still better to vote for the whole bill.

This is how bills that give money to various special interests get passed and “bridges to nowhere” get funded.

Once passed by the House and the Senate the president is left with no choice but to either sign or veto the bill. He can’t pick and choose certain parts to reject and others to keep. Anyway, he probably doesn’t have enough time to read, know and understand the implications of everything in the bill since that would interfere with his golf game.

How Will The CASE Act Benefit Photographers?

Cases brought to the U.S. Copyright Office’s small claims tribunal will be decided by a three-judge panel of experts. Damages would be capped at $15,000 per claim and $30,000 total.

However, the creator will still need to find the infringements and locate contact information for the infringer. That probably means he will still need the services of organizations like ImageProtect, ImageRights, PicRights, Copytrack, Higbee & Associates, KodakOne (renamed RYDE),  LAPIXA, Permissionmachine, Photoclaim, Pixsy (See this story for links). They have set up systems to search the Internet for unauthorized uses. It is unclear if this will make the business of chasing infringement claims easier for these firms, but if it doses the additional profits will probably not trickle down to creators.

There is also a question of damages. Just because the plaintiff goes to the court and says, “They made an unauthorized use of my photo and I would normally charge $1,000 (or $15,000) for such a use,” that does not mean the court will grant that amount of money. I would expect that before deciding damages the court to look for evidence of what similar customers have paid for similar uses.

Back in 2018 I did an analysis of what Getty was charging for the images they licensed. These figures come from a small sample of Getty sales, but I believe they are representative. Only 1% of the sales were for gross fees greater than $1,000. Only 11.35% were for fees greater than $100. One-third were for fees below $5.00. The average fee was around $29.00.

Recently, I did an analysis of the 2020 sales for one of Getty’s major photographers. The average gross license fee had declined to $21.04. In this year 47% of images licensed were for less than $5.00. In the last quarter, the average license fee for a Shutterstock image was $3.79.

What do you think a judge will decide is a reasonable license fee for one of your images?

In addition, once the court has made a judgement that does not mean there will actually be a payment. If the infringer does not voluntarily pay the judgement, a sheriff of the state where the infringer resides will need to enforce and collect the money. I have been told that given case backlog, sheriff's tend to pursue the highest amounts first since they receive a percentage of the collection for their service.

It seems likely that unless the infringer uses a huge number of your images the amount the court will decide to grant for the use of a single image will not be worth the trouble of bringing the small claims action. You may fight the case on principle, but it is unlikely to be for the money. If the CASE Act had been passed years ago when stock photo fees were much higher it might have been of more value, but this is today’s reality.

Copyright © 2020 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz


  • Jeffrey Isaac Greenberg Posted Dec 29, 2020
    Thanks for this.
    There is another potential windfall in Covid Relief Bill.
    Please, if possible, investigate further.
    Business meals are now 100% deductible 2021-2022.
    The question stock photographers might want to know is
    if they take stock photos whilst restaurant dining, does it
    qualify as business meal or must stock photographer buy
    a photographed restaurant worker a drink to make the
    stock photographer's meal qualify as business meal...?
    I intend to call IRS a few time before pursuing this scheme
    as alarms ring if one crosses a line, e.g., eats 3 x 364 business
    meals a year, even if truly taking stock photos each meal...

  • Thomas Wear Posted Dec 30, 2020
    I'm curious if your Getty analysis included sales via Premium Access and other special deals. If the court looks at "rack" prices rather than special discounted prices, the damages could be significantly higher.
    I believe that the court would also (hopefully) take into account the licensing fees normally charged by the person being infringed, rather than an across-the-board industry average. If a particular photographer (or agency for that matter) has a documented history of licensing fees that show an average of, say, $500, I think it's a lot more likely that the award would be based on that, rather than industry-wide.

  • Todd Klassy Posted Jan 8, 2021
    Hi Jim. You're analysis of how much one might win in a case has nothing to do with Getty and has everything to do with how much each photographer charges. If you regularly get $1000 for a similar photo from a similar use from a similar type of climate then you should be able to easily convince a judge to award you $1000. This is why it is important for photographers to NOT sell themselves short and begin saying "no" when a customer does not pay a fee that is sufficient. You must establish a record of how much you charge in order to successfully sue for infringement in any court...small claims or otherwise.

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