In 1990-1991, I was a freelance independent contractor working at a major toy company in New York City. During this period, my art was infringed and used on hundreds of thousands of product packages for a doll that was sold nationally. I asked for a licensing fee from the toy company that used my art, but they refused. The legal department told me, “So, sue the company.” Then an intellectual property attorney noted that, technically, I had copyright law on my side, but that suing the largest toy company in the U.S would cost too much. If they had just paid me their standard package design fee for an image – say $3,400 – I’d have been thrilled. That would’ve paid my rent and bills for a few months. But they knew they could get away with stealing my work, so they did.
Most professional artists have had their work infringed. It’s sort of a sick “compliment”; somebody will steal your work if it’s really good. Nobody steals bad art. And sadly, infringement of copyrighted images is rampant in the internet age. Look around you. Everything you see has an image, design, or pattern on it – including clothing, product packaging, and the websites you read. These are all examples of work by artists and creators, many of whom run small businesses and simply cannot afford to have money stolen by infringers.
Unfortunately, without a Small Claims court in place to facilitate “smaller” copyright infringement claims, and with Federal Court being too expensive and arduous for creators to use for such disputes, there is no recourse for independent artists to take when their work is infringed. Further, a recent survey by the American Bar Association indicates that attorneys simply won’t undertake infringement cases if damages are less than $30,000.
But there is a viable solution on the horizon that’s supported by artists and creators of all kinds, which is the creation of a Small Claims Court to handle copyright infringement claims, as proposed by H.R. 3945 – The CASE Act.
Why should we believe that The CASE Act’s proposed Small Claims court is a viable solution? For starters, it’s a plan that’s been discussed and researched for many years, including significant research that’s been conducted and shared by the U.S. Copyright Office.
Back in 2006, when I was the National Advocacy Liaison for the Graphic Artists Guild, the Copyright Office called me for input about an artist’s experience with “small value infringement,” and asked my opinion about the creation of a copyright “small claims” court. Shortly thereafter, the Copyright Office conducted a formal study. There were also roundtable discussions conducted with authors, songwriters, creators, publishers, user/consumer groups and numerous other interested parties.
In 2012, the Copyright Office asked organizations representing visual artists to conduct a national survey of artists and photographers about infringement of our works and our opinions about the creation of a copyright “small claims” court. In 2013, the Copyright Office released the results of its research via a study titled Remedies for Copyright Small Claims. In the report, it recommended that a small claims court be created to handle copyright claims that are too small to bring to federal court. The report also found that individual authors and creators suffered significant copyright infringements, and overwhelmingly favored a low-cost alternative dispute resolution.
More recently, Representatives Jeffries and Marino, along with Representatives Collins, Smith, Chu, and Lieu, introduced the Small Claims Enforcement Act of 2017 (the CASE Act) – H.R. 3945. We are grateful to the Representatives and their staffs, as well as to Maria Pallante and the Copyright Office, for the many years that they worked on research and recommendations to help solve this issue. And there’s absolutely no doubt that American authors/creators like me need and want a Small Claims solution to recoup income lost due to the theft of our work.
I urge visual artists – and creators of all kinds – to contact your Congressional representative, and ask him or her to enact H.R. 3945 in support of a Small Claims court. It takes just a few minutes to send a letter to your representative by clicking here, and doing so will benefit creators across the country.
Lisa F. Shaftel,
Shaftel & Schmelzer; Artists’ Advocates