The Copyright Calamity
June 02, 2010
Events of the past few months remind us that copyright law, as it now stands, is hardly worth a warm bucket of spit to creators. When someone takes your car without permission, or enters your house uninvited and makes off with the silverware, you can rest assured the institutional outrage will be on your side, and the law will help.
Not so when your copyrights get stolen: You're pretty much on your own. Unless you have the money to chase down and prosecute the offender, you have to just suck it up. Imagine a society where the police and the courts sat on their hands for all the victims of theft except those with the money to pay for justice.
That's pretty much the state of copyright law in the digital age. Technology has made copyright theft easy, and most victims are powerless for lack of money to defend their rights. What to do about it was the subject of a recent ASMP symposium, and as we reported on PDNPulse [See our story, http://bit.ly/alCR80], the U.S. Copyright Office's own legal counsel said: "It's not clear if a set of arcane laws that need a lawyer to explain works well in a world in which everyone is a copyright infringer."
Given the impotent state of copyright law, it's no surprise that the thefts are turning sensational and brazen. And we're not talking about the infringements by ordinary citizens, which are plenty annoying and costly. We're talking about big companies that would never stand for anyone violating their copyrights, taking advantage of those "arcane laws" and their corporate clout to steal copyrights from photographers with impunity.
We recently reported on two such cases on PDNPulse. One was Ken Light v. Current TV, an independent news outlet in San Francisco owned by Al Gore [http:// bit.ly/8Y9Unt]. Light licensed an image of a Texas death row inmate to The New Yorker last summer for a sensational crime-and-punishment story. Current TV subsequently published the image on its Web site without permission.
Light sued in a California small claims court on the grounds of unfair competition and won a $500 judgment. Current TV filed an appeal, and lawyered up to bombard a state court judge with technical and legal defenses. Against that, Light was representing himself. The judge ended up throwing out the small claims judgment without explanation.
Light's remaining legal option is to spend thousands of dollars prosecuting Current TV in federal court for copyright infringement, with no guarantee of winning. For a few hundred dollars in compensation, that makes little sense, which is why Light sued in small claims court in the first place. So Current TV�which would apparently rather pay lawyers to fight off a pesky claim now and again than pay some photographers fair fees to use their images�now stands legally absolved of theft.
Just as galling is the case of Agence-France Presse (AFP) v. Daniel Morel [http://bit.ly/94SLzu]. Morel is the victim, and AFP is suing him for his "antagonistic" assertion of his rights and commercial defamation. Morel posted some of the very first images of the Haiti earthquake on Twitter. Another photographer re-posted the images as his own. AFP distributed the images worldwide with a credit to the imposter-photographer, even though at least one editor at AFP knew the images were Morel's.
Morel sent cease-and-desist letters to AFP and a number of its clients, and insisted that AFP compensate him. AFP finally sued to get a federal court in New York to declare that it did nothing wrong, so Morel would be forced to shut up and go away�and pay unspecified damages on his way out the door for wronging AFP. At the center of AFP's legal argument is its claim that under Twitter's Terms of Service, Morel was granting rights to third parties to "use, copy, publish, display, and distribute" those photographs. It's a dubious claim that AFP has a lot more money to argue than Morel does.
The rough treatment of photographers by corporations such as AFP and Current TV underscores the deficiencies of copyright law in the digital age. No image that is transmitted digitally is safe from theft. Making matters worse is that there is no effective deterrent to infringement. Unless photographers register images prior to an infringement or within three months of first publication�an impractical requirement designed for the snail's pace of the print publishing world of yore�those photographers can sue for nothing more than actual damages in federal court.
It is almost never worth the cost of hiring a lawyer to do that, a fact not lost on savvy (read: corporate) infringers. They can infringe, then thumb their noses. And when some Quixotic photographer does have the temerity to sue, the system favors the side with money. Corporate infringers can almost always hire more powerful lawyers, drag out the process, engage in legal rope-a-dope and weasel until most photographers are thoroughly ground up.
One might reasonably ask why copyright laws aren't updated to reflect the world we now live in, and protect all copyright holders more or less equally. The answer is: That can't happen until big, powerful copyright owners decide the system isn't working for them, at which point Congress will find itself under pressure to update the law.
Meanwhile, photographers and other small copyright holders are on their own. They are trying to muster strength in numbers by building coalitions and licensing clearinghouses on the foundations of current law, but those efforts have yet to bear much fruit. Another tactic is class-action lawsuits. Writers' groups successfully sued Google to ensure compensation for reproduction of their works in the Google Library project. Photographers' groups, led by ASMP, are trying the same tactic [http://bit.ly/bycnRa].
But until Congress addresses the fundamental deficiencies in the law, photographers are no doubt in for more bullying and abuse.
© Courtesy Joan B. Miller / Magnum PhotosWayne Miller, LIFE Photojournalist Dies
© Gerald Mabee/Brent Foster Photography & CinemaFrames Per Second: Pitching Video Storytelling
©Ali EnginFaces Portrait Photography Competition
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