The CASE Act: The Big Value of Small Returns

by Lisa Shaftel & John Schmelzer
Shaftel & Schmelzer, Advocates & Consultants for Visual Artists

Representative Hakeem Jeffries introduced the Copyright Alternative in Small-Claims Enforcement Act of 2017 (the “CASE Act”) H.R. 3945 in October 2017. The CASE Act was created in response to the Copyright Office Study Report on Remedies for Copyright Small Claims released September 2013. The CASE Act establishes a “small-value copyright court” within the Copyright Office so that copyright owners can pursue infringement cases where damages are too low for cost-effective litigation in federal court. Visual creators’ organizations have been asking for this recourse for creators’ lost income for well over ten years.

There are many businesses large and small that have been built on the model of not paying for the images they use. Licensing images—certainly for commercial reproduction and display—is a standard and customary business practice for creators and users of images. It is the cost of doing business, as well as a legal obligation for the user.

Using images without permission and without paying a licensing fee to copyright owners is simply stealing. It’s no different than stealing paper or lumber or a truck. These businesses have been able to get away with not paying for the images they use because they know that copyright owners cannot afford to file an infringement lawsuit in federal court for lower-value licensing fees and actual damages.

Authors and creators trying to earn a living from their work suffer death by a thousand cuts with no practical legal recourse to stop the bleeding. Image theft has devalued our creative product to the extreme. The thought process has become; Why pay for something that can be stolen without recourse? The internet is populated with stolen images that drive traffic to commercial sites, but image creators reap no financial benefit from those who drive the traffic or those who sell the goods or services. More traditional businesses observe this trend and take advantage of the infringing activities believing they too can steal without recourse. Some websites and businesses, such as the online “corkboard,” have based their entire business model on unauthorized use of copyrighted works.

The CASE Act creates a simplified and less costly alternate dispute resolution process for creators and copyright owners to recover the licensing fees owed them by businesses that have already made unauthorized use of their photos, illustrations and graphics. The ADR process will provide the means for authors and creators to get injunctive relief from an offensive unauthorized use of their work as well. It also serves notice to the business community that there will be a low cost legal opportunity for authors and creators to enforce their ownership and copyrights, and underscores the value of creative works. Unless the value of assigned original images is reestablished, an entire industry that has already been crippled by image theft will disappear completely in the United States.

In 2012, England and Wales established a Small Claims Track for low-value copyright infringement cases. It’s working. It motivates settlements between the parties, and most claims don’t proceed to the hearing. The CASE Act would do the same in the U.S.

Businesses and their trade associations that object to the establishment of a small-value copyright tribunal fear that their business model of ripping off visual creators won’t be viable anymore. These organizations oppose the bill because they want to protect the member businesses and people who steal copyrighted works. The CASE Act doesn’t change copyright law, nor does it change our court system. The CASE Act would level the playing field by enabling authors and creators to enforce their copyrights without being required to hire an attorney and file a lawsuit in federal court that would cost more than the damages they’ve suffered. The only reason to oppose the CASE Act would be because the users do not want to pay the author/creator for the unauthorized use of their creative work.

If you’re worried about what Facebook did with your data, you should see what they do with your pictures.

Lisa Shaftel is a scenic artist, graphic artist and illustrator who has been working on creating a small-value copyright claims court system with the US Copyright Office for over 12 years. John P. Schmelzer is an illustrator and cartoonist.

Shaftel & Schmelzer is a consulting firm established in 2016 with a mission to promote and protect the economic and professional interests of visual artists through advocacy and education.

Hi resolution and low resolution versions of John P. Schmelzer’s cartoon are available for both print and online use.

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