Visual artist Juan Marco Montes recently sued Live Nation and C3 Presents for copyright infringement over works he had licensed for specific Lollapalooza events over a three-year period. Montes alleges that although the license covered only Chicago, IL and Santiago, Chile festivals, the concert promotion companies used his work to publicize other events, as well as on merchandise. Montes claims those usages were outside the scope of the license and also beyond the license’s time period.
Montes filed his lawsuit in the U.S. District Court for the Central District of California, and right now, this type of legal action in federal court is Montes’ only option if he hopes to stop the alleged infringement and also get paid for the loss of income he has incurred.
A new bipartisan bill recently introduced in the House of Representatives, however, could change that.
The Copyright Alternative in Small-Claims Enforcement Act of 2017 (CASE Act), more formally known as HR3945, would create a Copyright Claims Board within the United States Copyright Office. Claims filed there would have damages limited to $30,000 total ($15,000 per work), providing “a simple and less-expensive forum” in which creators could enforce their copyrights, according to advocacy group Copyright Alliance.
The CASE Act was sponsored by Rep. Hakeem Jeffries (D-NY) and co-sponsored by representatives Judy Chu (D-CA), Doug Collins (R-GA), Ted Lieu (D-CA), Tom Marino (R-PA) and Lamar Smith (R-TX) and has been referred to the House Judiciary Committee.
Why Emerging Artists Need the CASE Act
Copyright law protects original “literary, dramatic, musical, and artistic works” that have been fixed in a tangible form. Copyright protection, which attaches from the moment of creation and applies whether the work is published or unpublished, gives its owner the exclusive rights to do or authorize various actions concerning the work such as reproducing it or creating derivative works.
You don’t have to register a copyright with the U.S. Copyright Office to be protected, but you do if you want to bring a lawsuit based upon it.
Unlike Montes, most emerging artists and other creators haven’t licensed their work to a multimillion-dollar music festival like Lollapalooza.
Instead, the more common scenario goes something like this:
You, the artist, happen across an unauthorized use of your work, probably on the Internet. You want this usage to stop, and you imagine how much money you’re losing because someone else is stealing your work. Although your monetary damages may not even reach into five digits, the losses may still be “overwhelming” for your business, according to CopyrightDefense.com, a coalition of various groups, including the Digital Media Licensing Association (DMLA), Graphic Artists Guild (GAG), and Professional Photographers of America (PPA), which represents the interests of “hundreds of thousands of small businesses across America.”
“Copyright infringement takes a direct economic toll on these often one-person operations, who must shoulder the burden of policing infringements while at the same time seeking and fulfilling assignments, working on self-initiated projects and maintaining all the tasks of running a 24/7 business,” the coalition wrote in a press release supporting the CASE Act.
If you’re the victim of copyright infringement, the first course of action is usually to ask the infringer to stop using your work. Sometimes this is enough as some people still erroneously believe whatever they find on the Internet is free for them to use as they wish.
Or perhaps the person pilfering your work did so intentionally and knew they were wrong. Regardless, if they were to stop the infringement upon your request, you should count yourself lucky and victorious. Even though you’ll still be without the profits they made off of your work, asking the infringer to pay you back—no matter how nicely you do so—probably isn’t going to get you cash without a legal judgment.
In the event that the infringer refuses to cease using your work or refutes your claim, your only option currently is to sue them in federal court, like Montes did over his Lollapalooza license with Live Nation and C3. If this were your chosen route, you would probably need to hire an intellectual property lawyer instead of playing out your “Law & Order” fantasies with your copyrights on the line.
Unfortunately, intellectual property lawyers are expensive, if you can even find one who will take your case. A survey by the PPA found that two-thirds of the intellectual property attorneys asked said they wouldn’t even consider taking a case with potential damages estimated below $30,000.
This is an especially tragic number considering the PPA also found that 70% of professional photographers have faced copyright infringement (largely within the past five years) and that most of them estimate damages of $3,000 or less.
In other words, while suing in federal court may make sense for Hollywood studios and more famous, wealthier creatives because of the potential dollar amounts involved, for most emerging artists, the time and financial investment just don’t add up to making it worth your while to sue.
“For too long, our legal system skewed in favor of low-volume, high-value industries,” wrote Rep. Lieu. “But for many independent artists, whose claims of infringement often total a few thousand dollars, it is far too expensive to sue in federal court—essentially forcing creators to forfeit their rights.”
Quite simply, the current system leaves many creators without any way to recover damages stemming from copyright infringement—and this is where the CASE Act steps in.
What Would the CASE Act Do?
The CASE Act would allow emerging artists, bloggers, photographers, authors—anyone who holds a copyright—to bring a lawsuit in a specially created small claims court within the U.S. Copyright Office. You still may want to hire a lawyer to help you develop your case, but lawmakers have purposely designed the proposed system to be simplified so that litigants may not require much, if any, legal guidance at all. With dramatically reduced costs and a streamlined procedure, the CASE Act would remove enormous barriers to recovering copyright infringement damages.
“If passed, the bill would give smaller individual creators the same kind of protections that larger scale creators have enjoyed for years,” wrote CopyrightDefense.com.
Notably, the bill’s text is based on the U.S. Copyright Office’s legislative recommendations in its 2013 report, “Copyright Small Claims.” In other words, even the Copyright Office is on board with the CASE Act.
An important practical note for emerging artists: Just as in the current situation, you would have to register your copyright with the U.S. Copyright Office in order to sue based upon it. Yes, your common law copyright rights attach to your work at the moment of creation, but you cannot sue for infringement until and unless the copyright is formally registered with the government.
Now it’s your turn.
Right now, the bill is sitting in the House Judiciary Committee, from which it must emerge before facing a full vote of the House. If it passes the House, it moves to the Senate, and then finally to the president to sign into law.
The CASE Act is common sense, bipartisan legislation supported by the Copyright Office itself, so there’s no reason it shouldn’t pass other than Congressional apathy. Don’t let that happen. Exercise your rights as a concerned citizen by calling, emailing, sending letters, and generally doing whatever you can to make your voice heard on this important issue with your elected representatives.
Your future copyright infringement claims could depend on it.
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