What is, arguably, one of the greatest injustices faced by artists in the United States?
My answer would be the lack of legal agency. The reality that artists lack legal agency to protect their original works of authorship from infringement is a systemic fault that deserves an adequate remedy.
Late last year, in an effort to address this injustice among artists, the United States House of Representatives passed the Copyright Alternative in Small-Claims Enforcement Act, known as the CASE Act, with an overwhelming 410-6 majority vote. The CASE Act would provide a low-cost, streamlined mechanism for artists to enforce their copyrights through the creation of a Copyright Claims Board, located within the U.S. Copyright Office, to decide copyright disputes over claims equal to or less than $30,000. However, since the Act’s sweeping passage in the House, all progress towards meaningful action has been entirely halted by a single Senator from Oregon. The fact that one person has the power to stand in the way of promoting the progress of the arts is, to me, a needless thorn in the thicket of briar that makes up the wide-spread injustices artists in the creative community already regularly confront.
The CASE Act is a necessary step Congress and the Copyright Office can take to ensure reasonable remedies for artists. Through the establishment of a Copyright Claims Board, the Office would be able to use its expertise to make informed decisions that promote the goals of copyright and provide creators with an alternative to pursuing claims in federal court. As musicians and copyright owners Marti Cuevas and Carlos Martin Carle explain, under the CASE Act, artists would have a reasonable opportunity to enforce their copyrights and prevent rampant infringement without breaking the bank in legal fees associated with federal litigation costs.
Nevertheless, the infringement creators regularly encounter is widespread, and enactment of the CASE Act is only the first step towards establishing much needed mechanisms to ensure the legal agency of artists. Action must be taken in order to close the streaming loophole, which allows rampant streaming piracy to occur without meaningful consequence. There is also a glaring imbalance in the current DMCA notice-and-takedown system, which classical composer Kerry Muzzey described in his testimony at the Senate Subcommittee on IP hearing on notice and takedown earlier this summer as besieged by “a sea of big tech Goliaths.” It’s also essential that Congress carefully consider abrogating state sovereign immunity in copyright infringement cases, so that creators like Rick Allen no longer have to fight costly, extensive legal battles with seemingly untouchable state entities.
These are all issues that the Copyright Alliance is working on to help preserve the value of copyright and protect the right of creators in our communities, and I was fortunate enough to support these efforts as part of my Legal Internship.
However, as too many artists in the copyright and creative communities have undoubtedly experienced during the current global pandemic, legal agency is further crippled by a lack of financial resources. Far too often when budgets are reviewed, or economies stall under hardship, the arts are the first to be depleted of resources and agency. Terrica Carrington explained back in April when COVID-19 was just beginning to wreak havoc in our communities that most full-time artists are considered working-class citizens in which the average musician in the U.S. earns $35,000 per year, the average photographer makes $34,000 and the average author grosses just $20,300. These pre-COVID-19 figures have certainly dropped due to cancelled exhibitions, concerts, gigs and book signings, and further decreased sales of visual art, artisan crafts, and other handmade works have threatened creators’ livelihoods.
While many organizations have come to the aid of artists during this time of need, some have sought to further exploit artists and deprive them of their exclusive rights as copyright owners. One such organization is the Internet Archive, which Keith Kupferschmid revealed has been taking advantage of artists for its own selfish gain well before the pandemic. To add further insult to injury, this past March the Internet Archive announced its “National Emergency Library,” which essentially bypassed the entire U.S. copyright legal framework by allowing for the unauthorized distribution of millions of works of authorship. In June, the Association for American Publishers, on behalf of its book publisher members, sued Internet Archive for its blatant theft of authors’ copyrighted works. The National Emergency Library has since been closed, but the economic damage suffered by authors as a result of this organization’s actions will have a lasting impact.
Unfortunately, artists’ lack of financial resources is not solely caused by COVID-19. Although the global pandemic has made it harder for artists to make a living, insufficient investments in arts education has caused continual suffering to artists. From my own educational experience, investment in the arts is lacking, even among institutions that praise interdisciplinary studies and strongly support STEM projects. Arts programs are routinely defunded, despite the fact that arts education establishes a foundation for securing legal agency for artists.
This is why I have long admired the view of former President and notable advocate for the arts, John F. Kennedy, that if more politicians knew poetry and more poets knew politics the world would be a much better place to live. I would similarly suggest that if more lawyers knew art and more artists knew law the world would be a much more just place. Lawyers and those who are educated in the law should not turn a blind eye to the arts; likewise, artists should not be discouraged by gaps in the law. There are ongoing efforts to better protect the rights of artists and copyright owners, and I’m proud to have been able to help support them.