This Small Claims Report section has been created to chronicle ASMP's efforts to lobby Congress to adopt an alternative, straight-forward, cost-effective system in which our members and others can seek relief for the type of copyright infringements that have become all too common today—especially in the online environment.
Mike Klipper, ASMP's outside counsel, and Tom Kennedy, ASMP's Executive Director, will be posting articles and related documents, highlighting actions of the U.S. Copyright Office and those being taken on Capitol Hill to progress the establishment of a Small Claims Tribunal, which has been the focus of ASMP and other visual arts organizations.
Rep. Jeffries (NY-08) introduced a bipartisan piece of legislation designed to help artists, photographers, movie directors, musicians, songwriters, authors and other creators protect their work from unauthorized reproduction. To see full press release, please click here.
ASMP’s quest for legislation to create a fair, cost-effective, and streamlined venue in which its members can seek relief for relatively modest copyright infringement claims took an important step forward on July 13th with the introduction of H.R. 5757: Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2016 by Rep. Hakeem Jeffries (D-NY) and Rep. Tom Marino (R-PA). Rep. Judy Chu (D-CA) is expected to introduce her own version of a small claims copyright bill in the near future. Representatives Jeffries, Marino, and Chu are members of the House Judiciary Committee which has jurisdiction over such legislation.
As expected, H.R. 5757 closely tracks the legislative recommendations contained in the U.S. Copyright Office’s comprehensive and well-received 2013 report entitled “Copyright Small Claims: A Report of the Register of Copyrights.” It also includes a number of key provisions endorsed by ASMP and other visual artist groups in a white paper they submitted to Congress earlier this year.
Among the provisions set forth, H.R. 5757:
- creates a Board within the Copyright Office to hear claims that do not exceed $30,000, with adjudicators with experience in copyright law and alternative dispute resolution.
- provides a less formal, streamlined process where legal representation is optional.
- in order to satisfy constitutional norms, allows defendants upon receiving notice, to opt out within a certain time frame and choose federal court instead.
- enables the court to not only decide copyright infringement cases, but contractual issues related to the infringement.
- empowers the Board to award actual damages, profits, or limited statutory damages.
- allows defendants to raise all defenses available in federal court, including fair use.
During the forthcoming legislative process, ASMP will urge Congress to adopt additional provisions that ASMP believes are necessary to the overall success of any small claims process. For example, under H.R. 5757, a photographer or other claimant who is confronted with an uncooperative defendant who refuses to abide by a decision of the Small Claims Board must go the federal court in the District of Columbia to enforce that decision. This is a major problem for small copyright claimants who live outside the District of Columbia and would be forced to appear and/or retain local counsel to seek enforcement of such a decision. We believe it is imperative that any forthcoming bill must provide that such enforcement actions must not be so limited and should be able to be brought in federal courts more convenient to the claimants.
ASMP looks forward to working with Representatives Jeffries, Marino, and Chu as Congress goes about the critical task of ensuring that the creative works of photographers, illustrators, graphic designers and other visual artists are appropriately protected so that they are incentivized to continue producing works that change how people see their world.
While there has been a great deal of discussion recently about the possibility of Congress creating a small claims process for visual arts, several visual artist groups, representing hundreds of thousands of creators, have joined forces to propose key components of potentially forthcoming small claims legislation. Collectively, the groups represent photographers, photojournalists, videographers, illustrators, graphic designers, artists, and other visual artists as well as their licensing representatives.
The white paper, which can be viewed here, advocates for the creation of a small claims tribunal within the U.S. Copyright Office. The document is a collaboration between American Photographic Artists (APA), American Society of Media Photographers (ASMP), Digital Media Licensing Association (DMLA), Graphic Artists Guild (GAG), National Press Photographers Association (NPPA), North American Nature Photography Association (NANPA) and Professional Photographers of America (PPA).
These organizations have identified the creation of a small claims option to be their most urgent legislative priority before Congress. They assert that the cost and burden of maintaining a lawsuit in the only existing venue for hearing copyright infringement claims — federal district courts — is prohibitive and all too often leaves visual artists no way to vindicate their rights. They see a small claims court within the Copyright Office as providing a fair, cost-effective and streamlined venue in which they can seek relief for relatively modest copyright infringement claims.
This negotiated document, which lays out the basic framework for small claims legislation, is in large part consistent with the legislative recommendations set out in the "Copyright Small Claims" report released in late 2013 by the U.S. Copyright Office. In some instances, the white paper offers alternative suggestions to those put forth by the Copyright Office.
The visual artists' organizations listed above have now distributed this legislative proposal for a copyright small claims tribunal to members of Congress, the United States Copyright Office, the members of the undersigned organizations, and other important copyright stakeholders.