Photographers got a late Christmas present when President Trump signed the massive 5,593-page, $1.4-trillion omnibus spending and COVID-19 relief bill, titled the
Consolidated Appropriations Act, 2021. () Buried deep within this omnibus spending bill was the 63-page
CASE Act.
The CASE Act has been working its way through Congress for more than 10 years and sets up a small claims court within the U.S. Copyright Office. This makes it possible for copyright infringement disputes to be heard outside of expensive federal copyright litigation system and creates an affordable process for independent creators to enforce their rights without having to hire attorneys or pay hefty court fees.
This should benefit all copyright holders including: photographers, illustrators, graphic artists, songwriters, authors, bloggers, YouTubers, and many other creators.
Civics Lesson
This is a perfect example of how our dysfunctional government works. Instead of dealing with issues that might benefit citizens as they arise Congress has developed a system of lumping lots of small, diverse issues – the Good, Bad and the Ugly –into one must pass “omnibus” bill. Most such bills are of interest to small groups of the population, The omnibus bill focues on one big issue – in this case Covid-19 relief payments that are expected to benefit 89% of all households– and hopes that none of the members of Congress will have time to pay attention to all the other little issues. In most cases the members simply follow the leadership’s recommendations. But if they do bother to try to understand what is actually in the bill, there will probably be at least one thing that really benefits a few of their constituents. If there are also things the Congressperson or Senator doesn’t like, it is probably still better to vote for the whole bill.
This is how bills that give money to various special interests get passed and “bridges to nowhere” get funded.
Once passed by the House and the Senate the president is left with no choice but to either sign or veto the bill. He can’t pick and choose certain parts to reject and others to keep. Anyway, he probably doesn’t have enough time to read, know and understand the implications of everything in the bill since that would interfere with his golf game.
How Will The CASE Act Benefit Photographers?
Cases brought to the U.S. Copyright Office’s small claims tribunal will be decided by a three-judge panel of experts. Damages would be capped at $15,000 per claim and $30,000 total.
However, the creator will still need to find the infringements and locate contact information for the infringer. That probably means he will still need the services of organizations like ImageProtect, ImageRights, PicRights, Copytrack, Higbee & Associates, KodakOne (renamed
RYDE), LAPIXA, Permissionmachine, Photoclaim, Pixsy (See
this story for links). They have set up systems to search the Internet for unauthorized uses. It is unclear if this will make the business of chasing infringement claims easier for these firms, but if it doses the additional profits will probably not trickle down to creators.
There is also a question of damages. Just because the plaintiff goes to the court and says, “They made an unauthorized use of my photo and I would normally charge $1,000 (or $15,000) for such a use,” that does not mean the court will grant that amount of money. I would expect that before deciding damages the court to look for evidence of what similar customers have paid for similar uses.
Back in 2018 I did an analysis of what
Getty was charging for the images they licensed. These figures come from a small sample of Getty sales, but I believe they are representative. Only 1% of the sales were for gross fees greater than $1,000. Only 11.35% were for fees greater than $100. One-third were for fees below $5.00. The average fee was around
$29.00.
Recently, I did an analysis of the 2020 sales for one of Getty’s major photographers. The average gross license fee had declined to
$21.04. In this year 47% of images licensed were for less than $5.00. In the last quarter, the average license fee for a Shutterstock image was
$3.79.
What do you think a judge will decide is a reasonable license fee for one of your images?
In addition, once the court has made a judgement that does not mean there will actually be a payment. If the infringer does not voluntarily pay the judgement, a sheriff of the state where the infringer resides will need to enforce and collect the money. I have been told that given case backlog, sheriff's tend to pursue the highest amounts first since they receive a percentage of the collection for their service.
It seems likely that unless the infringer uses a huge number of your images the amount the court will decide to grant for the use of a single image will not be worth the trouble of bringing the small claims action. You may fight the case on principle, but it is unlikely to be for the money. If the CASE Act had been passed years ago when stock photo fees were much higher it might have been of more value, but this is today’s reality.