Small Copyright Claims . . .

Stock Asylum Staff Report
March 30, 2006


Asserting that photographers are "disenfranchised by the copyright system" because they cannot afford expensive court proceedures to protect their images, Victor Perlman told a congressional committee that the American Society of Media Photographers (ASMP) would support creation of a small claims copyright court or some other low-cost legal procedure to help copyright owners protect their work.

"Every year I get hundreds, perhaps thousands of telephone calls and e-mails from photographers and members," Perlman told the House of Representatives' Subcommittee on Courts, the Internet, and Intellectual Property yesterday. Perlman is General Counsel and Managing Director of ASMP.

"The scenario is almost always the same." Perlman said. "They've discovered an infringement, they've made a demand, the infringer basically says, 'Sue me.' The question is, 'What can I do?'

"As a practical matter my answer is usually, 'Nothing.' Why not? Because the photographer can't get into court. Usually there is not enough money in controversy."

The hearing was the first about the possibiltiy of creating an inexpensive legal procedure for collecting small copyright claims. The proposal has been pushed forward by the Professional Photographers of America, another photographers' group, and was mentioned in the recent Report on Orphan Works that was issued in January by the U.S. Copyright Office. Such a court might help creators of both assignment and stock photography collect from infringers.

A small claims copyright court is one idea that has received considerable attention, but committee members also mentioned the possibiltiy of creating an administrative procedure handled mostly with paper filings. The administrative procedure would reduce the amount of travel needed because much, if not all, filings could be handled by mail.

The Subcommittee on Courts, the Internet, and Intellectual Property is part of the House Committee on the Judiciary.

Perlman told the subcommittee he was speaking for ASMP, all other major photography trade organizations and the Graphic Artists Guild.

He said lawyers fees for copyright infringment cases can range from five-figures to the low six figures. Even when lawyers take a case on a contingency basis (meaning they do not get paid uless they win the case) most photographers can't afford to pay out of pocket costs like travel, expert witness fees and discovery costs, added Perlman.

"The promise of a refund down the line a couple of years later or after you get on the train isn't worth anything if you can't afford a ticket to get on that train in the first place," The ASMP executive asserted.

However, Brad Holland, founding board member of the Illustrators' Partnership of America, said his organization opposed the creation of a small claims court.

Holland tied his disapproval in part to the orphan works legislation proposed by the U.S. Copyright Office.

"The offering of a small claims court would only serve to legitimize the taking of orphan works," Holland asserted.

"The orphan works amendment virtually guarantees that the cost of suing an infringer would exceed whatever sum the copyright owner would recover in a successful small claims action," Holland contended.

The Orphan Works proposal would let publishers and others use copyrighted materials when the copyright owner is unknown or cannot be found. No orphan works legislation has been formally introduced, but a bill is expected soon.

Paul Aiken, executive director of the Authors Guild told the committee that 55 percent of his organization's membership are in favor of a small claims copyright court while just 17 percent oppose it.

Jenny Toomey, executive director of the Future of Music Coalition, said her group does not have a firm position on the issue.

The House Judiciary Committee web site is at: http://judiciary.house.gov

A video of the committee hearing is available at: http://judiciary.house.gov/oversight.aspx?ID=226

For more on orphan works, click here.