Copyright Small Claims Proposals Address a Real Need

Photo source by Vaobullan

It’s far easier to disagree with strident antagonists of copyright than it is to disagree with collegial defenders of the law.  Attorney Leslie Burns has been a supporter of this blog since its earliest days, and I’ve always appreciated her readership and enthusiasm on social media; but I have to respectfully disagree with a recent blog of hers criticizing proposals to create a small claims system for copyright enforcement.  Calling the proposal a “Bad Solution to a Non-Problem,” I worry that her post may cause confusion among the very class of creators a small claim system would be designed to serve.

A Non-Problem?

As stated a few times, the works of visual artists are probably the most frequently infringed on the internet. It’s just too easy to grab images and share them on social media platforms relative to the general understanding of copyright law (see Khloe Kardashian’s mistake).  For many of copyright’s detractors, the scope of visual-works infringement alone is reason to just let copyright itself fade into oblivion as a concept.

For the authors of these visual works, however, it seems they have a mixed set of experiences and feelings regarding unlicensed uses of their images.  They end up having no choice but to let a lot of casual appropriations go but often want to draw lines where infringements are particularly egregious and/or when they are made by for-profit entities. For instance, the story about skateboard photographer Max Dubler having his work used for marketing purposes by a company (for which he only wanted $25) is typical of the kind of unenforceable infringement many independent creators face.

I believe it remains a rule of thumb that even a small-market attorney will tell you that a claim—in any area of law—that is under $10,000 is barely worth the cost of filing the first papers in a lawsuit. And since we’re talking about a class of creators whose median income for their creative work hovers around $30,000/year, it’s reasonable to assume that there are thousands of creators in the U.S. who could use a small claims process to enforce their copyrights.

A lot of photographers just like Dubler do not register their works with the USCO as standard practice because the time and cost to register perhaps hundreds of images exceeds their available resources.  Failure to timely register will usually void an author’s ability to engage in litigation for infringement, but the small claims proposal (as it stands) actually gives an author more flexibility by enabling him/her to register the allegedly infringed work with the USCO as part of the complaint process.  This removes a significant cost barrier to enforcement for a whole class of independent and start-up creators, which brings us to the matter of small claims as a solution.

A Bad Solution?

My friend (and I hope she stays my friend) Leslie Burns cites statistical evidence identifying the number of copyright litigations that do not come anywhere near going to trial but which instead settle for awards well below statutory damages.  She’s right, of course, that this happens all the time; in fact, most litigations in all manner of claims settle well before trial proceedings.  But it is incorrect to read this general narrative as having created a de-facto small claims copyright process as a byproduct of traditional litigation.  Clearly, the statistical outcomes in litigation do not represent the class of authors who cannot ever avail themselves of litigation in the first place—which is what small claims is all about.

Burns states that a small claims process will limit the rights and remedies currently available to copyright holders; and while this initially caught my attention,  I don’t see how it can be quite accurate.  If we look for instance at H.R. 6496, the proposal co-sponsored by Rep. Judy Chu (D-CA) and Rep. Lamar Smith (R-TX), the bill explicitly states that the small claims option is voluntary and that by electing to avail themselves of these proceedings, neither claimants nor respondents are precluded from pursuing traditional enforcement through litigation—even after a determination by the small claims Board.  The important highlight is that the small claim option is an additional remedy and not a replacement of any process currently available.

In essence, the small claim proposal (as per H.R. 6496) would create a new Board within the Copyright Office, comprising three experienced copyright attorneys and at least one of these with “substantial experience in the field of alternative dispute resolution.”  The Board would have the authority to adjudicate claims and defenses for which statutory damages for infringement of “timely registered works” may not exceed $15,000, or $7,500 for infringement of “works not timely registered.”  Based on my anecdotal experience, these numbers, which are fractions of the statutory damages in federal lawsuits, sound about right.

For instance, a typical letter to an infringer of a photograph will demand somewhere in the neighborhood of $1,500-$5,000 to settle without any legal proceedings. Hence, if a small rights holder can afford to back that up with an enforceable remedy ranging between $7,500 and $15,000, that should be sufficient to put some teeth in a non-procedural demand for settlement.   To Burns’s overall point, a lot of copyright claims are pretty straightforward; the infringer knows the unauthorized use is indefensible, and settlements are made rather than lose a costly litigation.  The small claims option does not remove any author’s ability to file federal litigation proceedings; it simply provides a viable alternative for rights holders, or specific cases, for which litigation is financial a non-starter.

As proposed in the Chu/Smith bill, the decision of the Board may be enforced by petition to the US District Court for the District of Columbia, which may prove to be more effective than typical small claims court.  I actually won a small claim years ago in New York City in a default judgment, then learned that in order to get the company to pay, I had to file a petition with the Sheriffs Department.  Guess how that worked out.

Restoring Faith in Copyright

Enforcement of the Board’s judgments is just one of a handful of questions yet to be addressed in a legislative process that began about a decade ago.  And while, we can all agree that the devil will lurk in the details, I believe the underlying principles of small claims for copyright are sound.  The thinking reflects an understanding of the digital age that could actually help restore some faith in copyright itself for thousands (or millions) of new creators still trying to understand where the opportunities and threats are in this dynamic market.  (This post about designers selling merchandise addresses this point.)

How many times have I argued that copyright is for everyone?  And it is. On the books anyway.  But in practical terms, this isn’t quite accurate.  Time and again, from individual creators and from copyright critics, we hear the theme repeated that copyright is unenforceable for every creators except big corporations and millionaires.  And apropos one point Burns is making, this over-used exaggeration does not paint an accurate reflection of enforcement; there is indeed a segment of creative professionals who can, and do, avail themselves of existing legal remedies.

But from my own observations, I suspect Burns may be overlooking the smaller indies and new entrants to this volatile market who could not remotely afford to walk into her office today.  Many of these creators are the same people who shrug at the whole subject of copyright because they are powerless in a world where infringement is so common. And exploiting that ambivalence is exactly what the big Silicon Valley corporations do very well.

© 2017, David Newhoff. All rights reserved.

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3 comments

  • After a brief Twitter exchange, David already knows that we’re not really as opposed here as it first looks and asked me to respond here. Oh, and we’re definitely still friends. I’m all for reasoned debate and even disagreement and I respect David very much. We’re on the same side–just disagreeing on this one, so to speak.
    First let me say I liked the idea of a simplified system and was a supporter of a small claims process; but the more I look at the problems, at least as I see them in my practice, the more I think this bill just isn’t a good one for the small artists I represent.
    The “non-problem” I meant in my post (which, btw, was mostly a flippant title and not a substantive position) was that, as a copyright lawyer who works with artists and surprisingly often on very, very small (financially) infringement matters (think pre-litigation settlements in the low 4-figures), I think that it is a disservice to say that there is a pursuit/litigation problem until we get the problem of registration worked out first.
    The biggest issue I see is a failure by artists to register their copyrights. Money is a lame excuse for not registering–group registrations are $55 and photos (a huge part of the online rip-off problem) can be registered (separately) in groups of published and groups of unpublished. As I have explained before, this is like insurance. If you are going to be in business as an artist, you need to run your business like a business–and insurance only works if you buy it before you need it. Same for registration. If you get one MINIMUM settlement/award, a year’s worth of monthly registrations is paid for (see http://burnstheattorney.com/2016/10/songdanceseltzer/).
    So, I think we should be encouraging timely registration. This bill effectively discourages it. You don’t have to have your work timely registered to use the proposed small claims system and if you do, using the small claims system gives you no real benefits–it means giving up the right to potentially more ($15K limit versus $30K, for non-willful) and giving up the possibility of pursuing willfulness (and the increased damages).
    Yes, untimely registered work (you still have to register!) will now be able to pursue up to $7500 per work (max $15K per action) in this system, but if you are claiming you don’t have the money to register the work in the first place, why suddenly do you have it to register for this where you may get practically nothing? Also, attorneys’ fees (which may be awarded) are limited severely but this is still not an uncomplicated process. Artists are notoriously not thrilled with paperwork/details and it will take a lot of time and effort to do this right. Time an artist would better spend making art.
    It makes more sense to me (and yes, I do have a horse in this race since I make my living mostly helping artists with infringement matters) for an artist to register the work asap after creation then hire an attorney (on contingency) to pursue any infringement afterwards, using the system as it is now. Most of these matters will never need to be filed in *any* system as they will be negotiated out. The limits in this bill will hobble future negotiations since it imposes lower maximums for registered work.

    • Thanks for taking the time to write a response, Leslie. As you say, this is all in the spirit of considering various perspectives from people on the same side of the overall goal, which is to protect artists.

  • I’ll try to keep this comment as genteel as the above creative fiduciaries and advocates. However, as an artist with a very, very small (financially) infringement matter, I am prepared to meet the very, very large (financially) infringer (Google) with fire and fury… (I know, I know…simmer down, Michelle!)

    Registration is absolutely NOT the problem here. I’m diligent. I’m organized. I’m focused. Most relevant, MY copyrights ARE registered.

    Copyright infringement Immunity from antitrust violation and enforcement agency capture IS the problem.

    I’m referring to a REGISTERED copyright-protected song, “Wanted Man,” in this YouTube link:
    https://youtu.be/bL-8kSj7TtY (it begins at 9:00 and ends at 16:05)

    I applied for pro bono legal support, because what attorney would be foolhardy enough to take on this case for litigation, amitrite? A small claims remedy would allow me the dignity of not going, hat in hand, begging for legal representation.

    My pro bono application outlined the matter thusly:

    “The flagrant bootlegging of my live performances are being published without license or permission, directed by anti-copyright interests in the name of user generated content for the purpose of disruption, extortion and exploitation in an attempt to expand current fair use boundaries, to the detriment of protections and rights of intellectual property holders. This is being orchestrated primarily by Google, through their YouTube platform, whose red flag knowledge of bootlegging remains unfettered due to lack of DOJ enforcement, as Google acts in collusion with infringers to undermine copyright protection by asserting unsubstantiated fair use claims and DMCA loopholes that provide profitable opportunitism, and in the largest sense demonstrate the impunity with which Google conducts massive infringement due to audacious antitrust immunity.

    The first performance, in November 2012, was uploaded to YouTube a few days later. Google refused to take it down despite my immediate DMCA notice by claiming that my performance was not copyright protected because, despite a clear directive from me that my show was not to be recorded, I was only “talking, not singing” and thus had no ownership claims to my own words. . (*Of course the songs I was singing that night were registered!)
    http://www.youtube.com/watch?v=CxLTFi_Y_3k

    The second performance, in March 2013, was uploaded to YouTube a few days later. Google refused to take it down, despite my DMCA notice. They claim my performance of my copyright protected material, including my REGISTERED composition “Wanted Man,” as well as the REGISTERED copyright transcript of my spoken words, isn’t copyright protected because, although I was now “singing as well as talking,” my performance is now part of a larger news story and thus protected by far use. https://youtu.be/bL-8kSj7TtY

    The third performance, in June 2017, was uploaded to YouTube a few days later. The bootlegger was notified by the venue, City Winery NYC, that it was not a licensed publication of copyright protected material and I now wish to sue for damages for production costs and potential revenue for a numbered limited edition concert DVD of the performance that was to be sold to ticket holders only. The quality of the bootleg was very high, perhaps in collusion with an employee of the City Winery, and only the ticket manifest will reveal the legal identity of the infringer, Aroo.
    https://www.youtube.com/channel/UCBqxj-xPoRJaJ_sWEKiGUyg

    In order to obtain the ticket manifest, I need to file a lawsuit. This is clearly not Federal case. And it is clearly not an issue of registration. This is an easy case in point that a small claims remedy makes good law.

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