Many U.S. photographers are hoping the CASE Act, a new law working its way through Congress, will help them protect their copyright and make it easier for them to go after infringers. The law will establish a Copyright Claims Board (CCB), a Small Claims court and eliminate the need to use the expensive Federal Court system to pursue infringers.
Photography trade associations – ASMP, PPA, DMLA, NPPA, APA, NANPA – and other members of the
Copyright Alliance have been seeking this change for over a decade.
While the law will make it easier and less expensive to bring a legal action against an infringer it still may not be enough.
What Is An Image Use Worth
Probably the biggest problem for the CCB will be determining a reasonable, fair value for an infringing use. It may be easy for a claimant to prove that an image was used without permission or compensation. But what is a fair fee for a particular use.
The CASE Act says that claimants, “shall be eligible to recover actual damages and profits or statutory damages under this chapter for infringement of a work.” What are “actual damages?” What would the photographer have charged for the use if the user had contacted the photographer prior to the use?
Should the CCB accept the word of the photographer that a use on the Internet or in a magazine was worth $1,000, or $7,500 which is the maximum that the court is allowed to award for the unauthorized used of a single work, if the copyright holder failed to timely register the work. (In any single proceeding the court is allowed to award up to $15,000 for multiple works.)
It would seem that these fees are excessively high and unrealistic for the vast majority of uses, but how will the court determine what is reasonable? The court will be made up of 3 full-time copyright claims officers and 2 full-time copyright claims attorneys, all lawyers, with no experience, whatsoever, in licensing rights to images.
Will they look to average prices charged for image use by the major image providers? If they turn to Getty Images, and do some research (which is not easily available) they would find that the average price is about $29 and one-third of the images are licensed for less than $5.00. They might look at the list prices on the Getty Images website that haven’t changed much in a decade, but a knowledgeable defendant will certainly, quickly point out that Getty almost never licenses images at these prices anymore. Today, Getty’s prices average about 5% of what they were a decade ago.
Or will the members of the CCB look at Shutterstock prices where the highest list price for a single image is $14.50 and they go down to $0.27 per image for high volume users.
If the CCB lawyers use these figure and even allow for at 3 to 5 times penalty the gross fee for a single unauthorized use still isn’t very much.
If a photographer has never licensed images through a stock agency and claims that they would never allow one of their images to be used for less than several hundred or maybe thousands of dollars that might be an argument that would carry some weight. But, I would expect that the photographer would be required, under penalty of perjury, to show some evidence that he/she had made previous sales for a similar use at such a price.
All told, I think it is going to be very difficult for any photographer to argue that any use of a single image is worth a very high price.
In is hard to imagine that the court would simply award any high dollar figure the plaintiff asked for regardless of how the image is used.
Making A Claim
The process for making a claim will certainly require a lot of time and the costs might still exceed the amount that can be recovered. Check out the procedure outlined in the law
here.
A claim of infringement cannot be made unless the copyright holder has first submitted a completed application for registration to the copyright office and a registration certificate has either been issued or has not been refused.
The basic Copyright Office fee for an electronic registration is $35, but you may need help in making such a registration which is an additional $49 to $99. Check out these sites
here and
here for more information about copyright registration.
Defendants Opting Out Of Small Claims
Once a claim is approved for consideration the user of the image must be notified. That person has 60 days to opt-out of the small claims process. In all likelihood knowledgeable, well-resourced defendants such as companies with legal teams, will strategically opt out of the Small Claims process and push the case into Federal Court. They know that this will make pursuing the case a very costly (in terms of hiring lawyers) and time consuming process for the claimant. In such a case the photographer will often be forced to give up proceeding with the case given the expense he/she will incur.
On the other hand, if after receiving a notice of infringement the accused fails to respond or opt-out of the small claims process within 60 days, the small claims tribunal can enter a default judgment in favor of the claimant and award damages.
The CCB becomes the default venue unless the defendant -- who may not have an understanding of what is happening or what to do -- chooses otherwise. Failing to respond means that the defendant is subject to the CCB’s jurisdiction, its process, and its statutory limits.
Where To Appear
One of the benefits of this Small Claims system may be that no one will have to physically appear in a court. Based on the information in item (1506.(c1), (c2) it appears that much of the work can be handled by letter and if need be email or conference calls. However, if plaintiffs and defendants must actually before the Copyright Claims Board that will mean that they will be required to travel to Washington, D.C. which is the only place where the board will hold hearings.
The CCB will only have jurisdiction when the infringer is located in the United States. It is unclear whether a foreign photographer could register a photo with the Copyright Office and make a claim against a U.S. infringer and still receive a settlement.
Copyright Trolls
Some worry that the CCB system will open the door to copyright trolls. This may be particularly true when making a case against an unsophisticated defendant. Failing to respond means that the defendant is subject to the CCB’s jurisdiction, its process, and its statutory limits.
Imagine that someone finds an image that has been use online and decides to register a copyright to it. All they have to do is go to the Copyright Office and submit a claim of copyright ownership to the image. This is fraud, but it may not be caught. The actual creator of the image may have never registered the copyright. Even if the image was registered, and particularly if it was part of a bulk registration, the Copyright Office has no way to do a visual search of its database to determine if the image has actually been registered before by someone else.
The law says “The Office will not search to determine whether a work similar to a work of interest has already been registered. Such searches are not necessary under copyright law.”
Such a claim would probably be unsuccessful if the user of the image was a sophisticated businesses, but individual users or small businesses might not know enough to push the case into federal court, or want to take the risks of the costs involved.
Collecting Once You Have A Judgment
Once the claimant has judgment from the CCB the claimant still must go through the process of collecting the money. This may require contacting a collection agency in the jurisdiction where the infringer is located.
All told, the process may not be a profitable one.