By Alicia Calzada and Mickey Osterreicher
One of the most positive legal developments for photographers in 2016 was the introduction of two bills proposing a new law to set up a small claims tribunal for copyright claims. The legislation, if passed, would solve the problems faced by many photographers when they learn that their pictures have been used without permission, but find that the only way to get paid is to take the infringer to federal court, which is likely to cost tens of thousands of dollars in legal fees. When the total value of the infringing use is only a few thousand dollars or less, photographers are left in a legal quandary of having rights without remedies.
The proposed copyright small claims tribunal may help. Two very similar pieces of legislation were filed in 2016, one in July by Reps. Hakeem Jeffries, D-N.Y., and Tom Marino, R-Pa., and the other in December, introduced by Reps. Judy Chu, D-Calif., and Lamar Smith, R-Texas.
While some details vary, both would establish a tribunal overseen by the U.S. Copyright Office in which a photographer or other author whose work had been infringed could bring a claim. Because it is not in the federal court system, participation is voluntary. The infringer could opt out, declining to participate in the tribunal.
But doing so would leave the infringer vulnerable to larger damages in federal court. Both bills would limit the total award by the tribunal to less than $30,000. Statutory damages in federal court for willful infringement can reach $150,000 per infringement.
The tribunal itself would be more informal than federal court and, while the tribunal will be based in Washington, D.C., proceedings would be via teleconference. The process is intended to allow participation without the aid of an attorney, but parties would be allowed to have attorneys (generally speaking, corporations must always use attorneys in any litigation).
The rules would also provide for more limited discovery proceedings than traditional federal court. Authors of all kinds of copyrighted work, including photographs, graphic designs, music and written works, would be eligible to participate. All defenses currently available under copyright law, including fair use, would be available in the tribunal. The rulings will be made by adjudicators who have experience in copyright law, and the rulings would be enforceable in federal court.
The U.S. Copyright Office has supported creating a copyright small claims court for years and in 2013 issued an extensive report with draft legislation, much of which was adopted in the bills filed in 2016. These bills, which have broad bipartisan support, will need to be filed again in the new legislative session this year.
In the years before the Copyright Office issued its recommendation, and in the years since, NPPA has been at the forefront in advocating for a copyright small claims solution. NPPA’s attorneys filed comments supporting small claims and participated in meetings and hearings that led to the 2013 report. We continue to cooperate with the Copyright Office in supporting the proposal and have met with lawmakers, most recently in a series of meetings this past December. NPPA is collaborating with a coalition of visual arts organizations, all of whom contribute to this effort in hopes that photographers will find it easier and more affordable to defend their copyright.
As part of that group, we were in the offices of House Judiciary Committee Chairman Bob Goodlatte, R-Va., and ranking member John Conyers Jr., D-Mich., when they announced their proposal for reform of the U.S. Copyright Office.
Citing that the “20th Century statutory framework for the U.S. Copyright Office is not sufficient to meet the needs of a modern 21st Century copyright system,” the Judiciary Committee announced its intention to address a number of issues, including the position of the “Register of Copyrights” as well as the structure of the Copyright Office itself, the formation of “Copyright Office Advisory Committees,”; the implementation of “Information Technology Upgrades”; and the establishment of “a small claims system consistent with the report issued by the Copyright Office.”
According to the committee, “this first proposal identifies important reforms to help ensure the Copyright Office keeps pace in the digital age.”
In response to the committee’s request, NPPA, as part of the visual arts coalition, filed written comments on these important proposals as we continue to work closely with and support legislators and the Copyright Office to achieve these crucial copyright reforms.
Members with questions about Copyright Small Claims or NPPA’s involvement in the effort can contact Mickey Osterreicher [email protected] or Alicia Calzada [email protected].