On August 31st, Seth Resnick, Michael Grecco, and Paula Lerner filed a Class Action Complaint in
Federal Court against the Copyright Clearance Center (CCC) for its action's, since its inception
in 1978, of licensing photocopy rights to thousands of users without properly compensating the
creators for these rights.
During the period since 1978, the CCC has collected hundreds of millions of dollars in revenue
from major corporation, law firms and other entities that have desired to lawfully photocopy
materials found in major publications. A portion of these monies has been paid to publishers. But
very little, if any, has ever been paid to the freelance photographers and writers whose
copyrighted works appeared in these publications.
The plaintiffs seek compensatory and statutory damages as a result of CCC's infringement of the
plaintiffs' copyrights, and an injunction that bars the CCC from continuing to offer for sale,
license, or copying the plaintiffs' and the class' copyrighted Images without prior permission or
authorization. The plaintiffs also seek restitution and other equitable remedies.
If the court accepts the case as a class action then all photographers stand to benefit. The
court may decide that the case does not qualify for class action status, in which case the three
plaintiffs would continue their case as a separate action against the CCC. Either way all
photographers win. If the court finds in favor of the three photographers the CCC will be forced
to drastically modify their future actions, and this can only benefit photographers.
The complaint alleges:
- "This class action complaint arises from years of systematic and intentional direct,
contributory, and vicarious copyright infringement perpetrated by the defendant Copyright
Clearance Center, Inc. ("CCC" hereinafter)."
- "At all times relevant hereto, CCC knew that the copyright laws of the United States required
it to obtain prior permission from the holders of copyrights in photographic images ("Images"
hereinafter) prior to copying and selling copies of materials containing those Images, or
authorizing others, in consideration for a fee, to copy written literary works containing Images.
Notwithstanding this knowledge, since its inception CCC has willfully disregarded the copyright
laws of the United States by continuously and systematically copying and selling copyrighted
works, or authorizing others to reproduce copyrighted works containing Images, in consideration
for a fee, without first securing the copyright holder's prior permission or prior
authorization."
- "In furtherance of this unlawful conduct, CCC has gone to great lengths to conceal such
infringing and unlawful activities by making representations to the public that its business
practices are in full compliance with United States Copyright Laws and that by paying fees to the
CCC, the individual or entity copying the Images is in compliance with United States Copyright
Laws."
- "By engaging in extensive, systematic and continuance acts of
copyright infringement, either directly, contributorily or vicariously, the CCC has collected
hundreds of millions of dollars in revenue since its creation in 1978."
Why Now?
There has been some discussion on various online forums that the plaintiffs acted too quickly and
should have made more attempts to negotiate with the CCC before filing a suit. It should be
recognized that behind the scenes attempts to get the CCC to change their policies and ways of
doing business have been going on for years.
Resnick, Grecco and Lerner had their first meeting with the CCC in April 2000. At that time, they
and ASMP met with the CCC to voice the concern that photographers were not being treated fairly
under the CCC's pattern of transacting business. Despite extensive efforts since that time there
has been virtually no progress.
Leaders from the American Society of Journalists and Authors have been trying to work out some
agreement with the CCC on behalf of writers since the early 90's.
ASMP Executive Director, Dick Weisgrau has served on the board of CCC for a time. When he left
that position ASMP's counsel, Victor Perlman, was named to the CCC board. Despite the fact that
these men were in these high policy making positions at CCC, neither was able to bring about any
changes that would benefit photographers.
Clearly, there comes a time when continued meetings are useless, and legal action becomes
appropriate. If the publishers who control the CCC have any intention, whatsoever, of changing
their practices, they are still free to make such changes at any time.
History
The following is a little history as outlined in the complaint. In the late 1970's publishers
began to fear that their revenues would decrease as more people had easy access to photocopying
equipment. Publishers feared people would photocopy works rather than continue to purchase publications.
This concern was recognized by Congress in the legislative history related to the enactment of
the Copyright Act of 1976. As a result, the American Association of Publishers, in July of 1977
created the CCC. John Wiley & Sons, Inc., a major United States publisher, sought contributions
from various other publishers to finance the costs of the CCC. Since that time, and to the
present, CCC has served, as a 'clearinghouse' supposedly to protect copyrighted material and also
to facilitate third party copying of such materials for a fee. CCC collects money from these
third parties and distributes a portion to its 'members,' primarily those major publishers.
Those who pay CCC money for the right to reproduce copyrighted materials, tend to be large
businesses and institutions of various sorts. CCC says its customers number over 10,000
corporations and subsidiaries (including 92 of the Fortune 100 companies), as well as thousands of government agencies, law firms, document suppliers, libraries, academic institutions, copy shops and book stores.
The CCC claims to represent 9,000 publishers and the rights to 1,750,000 separate works. They
manage third party copying of these works for the copyright holders. Most major American
magazines participate in CCC, and the magazines direct any person who might wish to copy portions
of the magazine to CCC. According to information on CCC's web site it has generated over $200
million for publishers since 1976.
CCC holds itself out to those third parties who wish to copy copyrighted materials under its
control as the only (or best) way they can do so and be in conformity with copyright law. The CCC
consistently represents itself as a facilitator of copyright compliance, and implies in its
literature that the CCC was created with the approval of the United States Congress which is not
the case.
In granting its licenses to copy, and in otherwise facilitating third party reproduction of
copyrighted materials, CCC has long known that it is giving its licensees something it has no
right to give them. The CCC has known since its inception that freelance photographers typically
only license limited uses to publishers and do not transfer their copyrights to their Images. The
CCC has known that the images to which it is licensing rights are not owned by the publishers, or
the CCC.
In written comments submitted to the U.S. Copyright Office on February 5, 1999 the CCC has
acknowledged that it "needs to obtain authorization from each individual rights holder (whether
author or publisher) to license each copyrighted work (or portions thereof) on which S/HE holds
rights, as well as the fees that the rights holder wishes CCC to charge for each type of use
(that is, for each CCC program in which the rights holder chooses to participate)."
The CCC has known that the photocopying it authorizes licensees to do has consistently infringed
upon the copyrights of the plaintiffs and Class members in this case. Yet the CCC continues to
tell its licensees that once they have paid the CCC's fees they are authorized to photocopy
"anything" in the listed publications, and to make an unlimited number of copies so long as it is
for internal use.
The CCC pays a portion of these fees to the publisher, but has never had a plan for seeing to it
that any portion of the fees go to the freelance writers and photographers who are the rightful
copyright holders.
Through the International Federation of Reproduction Rights Organizations (IFRRO) the CCC
receives payments for overseas uses as a result of bilateral agreements with reproduction rights
organizations in 13 countries worldwide.
On its website, among other representations, the CCC encourages corporations to create copyright
compliance guidelines, while at the same time the CCC has been knowingly violating the copyrights
of freelance photographers and writers.
The principles outlined in the suit have the support of the majority of the board of EP and the
plaintiff's hope to gain support from ASMP, APA, PPA, GAG, IPA as well. Given the egregious lack
of respect for the copyright of image makers shown by the CCC, it is hoped that the wider
community of photographers and illustrators will give it their full support.