Is Small Claims The Answer For Protecting Copyright?

Posted on 11/27/2012 by Jim Pickerell | Printable Version | Comments (1)

For several years there have been discussions about the possibility of developing a simplified, less costly, less burdensome process for making a legal claim for unauthorized use of images. Currently all copyright infringement claims in the U.S. must be brought in Federal Court, a prohibitively expensive process.

In the vast majority of instances of infringement the potential monetary damages are relatively small and this makes it impossible, as a practical matter, to find an attorney who will take the case. While the Copyright Act provides for the possibility of an award of counsel fees against the defendant if and when the photographer wins, there is simply not enough money at stake to make most cases worth the trouble for an attorney

The U.S. Copyright Office and by extension the Congress has been exploring the possibility of changing the laws and introducing a small claims process. In response to the U.S. Copyright Office’s request for comments on the “Study on Remedies For Copyright Small Claims” Victor S. Perlman, General Counsel or ASMP presented a very cogent argument for why the current system does not work for photographers and why a small claims system would be a better alternative. To read his presentation to the U.S. Copyright Office go here.

But will a small claims approach really make it easier for photographers to receive compensation for the unauthorized use of their images? Or, better yet, would the existence of such a law reduce the likelihood that people will grab images off the Internet and use them without permission because there might be a greater chance they would be caught and have to defend their actions?

In the small claims process there is normally a small filing fee and the photographer can go before the judge, present his evidence of ownership and the infringement and receive a ruling. Often the defendant doesn’t even bother to appear.

But, while it is easier and much less costly to institute an action, there are other problems that make it unlikely that a small claims system will be of much additional benefit to stock photographers in the long run.


The first, is that the action must be brought in a court that has jurisdiction over the defendant, not necessarily in plaintiff’s home jurisdiction. That may mean that the photographer will have to travel to a different jurisdiction to present evidence. In such a case the cost in time and money would probably make it impractical to pursue a relatively small settlement.

Most infringements are for the use of a single image. The small claims court will usually rely on sites like Getty Images, Corbis or Alamy as a way of determining actual damages for a particular use. This will undoubtedly result in some very low judgments.


Assuming the photographer does get a favorable judgment there is the issue of collecting. Nationally, 79 percent of those who receive small claims judgments are never able to recover the debt. Many who win judgments give up once collecting from an elusive judgment debtor becomes too time-consuming. details nine steps a judgment creditor may need to take in order to collect a debt. This process can take months and doesn’t always produce favorable results.

Serial infringers that make unauthorized use of lots of images from many creators may systematically ignore all attempts of individual creditors to collect in hopes of wearing them down and convincing them to give up. If they have to make a few settlements, it’s a cost of doing business.

In talking about the current situation, Perlman points out that the “disruption to the photographer's business and the emotional drain of years of litigation (since the average case can take two years or so) are simply more than most sole proprietors can afford.” He continues, “the experience is intensely personal and emotional, and it stays at the front of their minds every minute from the beginning of the case to the end, and even long after. In addition, the time spent working on the case is time that cannot be spent on making or marketing photographs. The costs of federal litigation for an independent contractor are not limited to money --- years of investing time and energy in a single case are crippling to people whose sole source of income is their ability to create and market their work.”

The small claims option may turn out to not be that much better.

Copyright © 2012 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

Jim Pickerell is founder of, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to:  


  • Charles Swan Posted Nov 27, 2012
    England introduced a small claims court procedure last month for IP claims under £5000 ($8000). It's thought the system will mainly be used by photographers. It remains to be seen how effective the system is going to be, but I think it could make quite a difference.

    Charles Swan
    Swan Turton

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