Coalition of Visual Artists Welcomes Introduction of Establishing Small Claims Board for Copyright
Posted by Advocacy Liaison on July 14, 2016
WASHINGTON, July 14, 2016
In the wake of its release of a white paper setting out the key components of a copyright small claims bill, a coalition of visual artist groups commends the attention that this critical issue is now garnering on Capitol Hill. Rep. Hakeem Jeffries' (far right) [D-NY] introduction, along with original co-sponsor Tom Marino [R-PA], of a bill, H.R. 5757 establishing a small claims board and the forthcoming introduction by Rep. Judy Chu (right) [D-CA] of her own version of small claims legislation establishing a small claims tribunal in the Copyright Office, are a welcomed next step in a process that will hopefully result in much-needed legislative relief for photographers, photojournalists, videographers, illustrators, graphic designers, and other visual artists and their licensing representatives. These artists are currently squeezed out of the legal system by the high cost of bringing suit in federal court and have seen their licensing revenues decimated in recent years by the proliferation of copyright infringement, particularly in the online context.
We look forward to working with Representatives Jeffries, Chu and all members of Congress to correct this inequity in America's copyright system.
Earlier this year, the coalition, which includes the American Photographic Artists (APA), American Society of Media Photographers (ASMP), Digital Media Licensing Association (DMLA), Graphic Artists Guild (GAG), National Press Photographers Association (NPPA), North American Nature Photography Association (NANPA) and Professional Photographers of America (PPA), set forth recommendations with regard to key components in any forthcoming congressional small claims legislation.
Coalition members believe small claims reform to be their top legislative priority and call upon Congress to enact legislation that provides visual artists and other small creators with a viable, affordable alternative to prosecuting copyright infringement in federal court—a prohibitively expensive and little-used option by visual artists. This approach is largely consistent with the legislative recommendations set forth in the "Copyright Small Claims" report released in late 2013 by the U.S. Copyright Office which deserves much credit for its groundbreaking effort in this area.
A copy of the visual artists’ coalition's white paper is available here.
For more information, please go to http://copyrightdefense.com/action
James Lorin Silverberg, Legal Counsel for the American Photographic Artists, Inc. (APA) said, “A Copyright Small Claims Court promises to provide authors and content users with an expedient, cost efficient, forum for the resolution of copyright disputes. But the importance of a small claims system is not merely to resolve differences between rights owners and rights users. By making copyrights enforceable in practical terms, it acts to restore the integrity of the copyright system, and copyright licensing models, and it contributes to a more vibrant and healthier intellectual property economy.”
Thomas Kennedy, executive director of American Society of Media Photographers (ASMP) said, "Implementing a small claims tribunal system within the U.S. Copyright Office is essential to ensure photographers, illustrators, graphic designers and other visual artists are appropriately protected and incentivized to continue producing work that changes how people see their world."
Cathy Aron, Executive Director of the Digital Media Licensing Association (DMLA) said, “Our association supports the creation of a copyright small claims forum to encourage licensing of visual content from legitimate sources. A small claims court should help stem the tide of “right-click” image use as it offers content creators and their representatives a way to effectively enforce copyright and seek appropriate payment. The digital economy needs to work for all participants and this is an essential step forward.
Lisa F. Shaftel, National Advocacy Liaison of the Graphic Artists Guild (GAG) said, “Too often when an infringement is discovered, there is little or nothing a visual creator can do to stop the infringing use or recoup financial damages. Our current copyright laws are virtually unenforceable when damages resulting from infringement would be under $30,000. That’s not much to big business, but to self-employed independent contractors and small studios this is a significant loss of income. This relatively ‘small-value’ infringement happens to nearly every professional illustrator and graphic artist during his or her career, causing economic harm to small businesses and families.”
Melissa Lyttle, president of National Press Photographers Association (NPPA), explained the importance of such a measure to photographers. “Photojournalists tell the story of our nation and our world, and their work is a critical piece of our democracy, but rampant infringement has devalued our work and made it increasingly difficult to make a living in this field. A small claims solution has the promise to improve the financial viability of our profession and preserve the ability of journalists to tell stories that would never be told otherwise.”
Sean Fitzgerald, president of the North American Nature Photography Association (NANPA) said, “America’s photographers and visual creators are desperate. Today’s digital age has unleashed a torrent of ‘small’ but destructive infringements that are eating away at the value of their work, but the current copyright system is simply not designed to help with such claims. A small claims court designed to give photographers and visual creators a fighting chance at protecting their work and livelihood from infringement is sorely needed and long overdue.”
Guild Advocacy Liaison Testifies at Copyright Office Discussion on the DMCA Notice
Posted by Rebecca Blake on July 11, 2016
On May 2nd and 3rd, the Guild participated in panel discussions conducted by the Copyright Office on the DMCA takedown process – the procedure that copyright holders utilize to compel ISPs, OPSs, and technology companies to remove infringing work from websites. Lisa Shaftel, Guild Advocacy Liaison, was invited to participate on two panels as one of the few representatives of visual artists. The discussions addressed different issues with the DMCA notice, and permitted the Office to ask questions and solicit the experiences of stakeholders: creators, authors, licensing agencies, technology companies, web hosts, and others.
Jackie Charlesworth, General Counsel and Associate Register at the Copyright Office, opened the hearings by describing the DMCA takedown process as “a tale of two cities.” Her observation was borne out by the divided testimony: those representing artists and authors described a system that is essentially broken, while technology companies (including ISPs and OSPs) professed satisfaction with a process that serves them well.
A common complaint of rights holders was that as soon as their infringed work was removed in response to a DMCA notice, it would reappear; creators described spending several hours per day devoted to just hunting down infringements and issuing takedown requests. However, technology companies said they would not consider closing or freezing the accounts of repeat offenders.
Public interest group Public Knowledge, a DC-based non-profit that promotes an open Internet, went so far as to equate closing the websites of repeat copyright infringers with censorship. Rights holders on that panel questioned why the violation of their copyrights was dismissed, and pointed out that ISPs have no issue with closing down or freezing accounts for non-payment. They also described coming across online companies that exist solely to post or provide infringing content, and to immediately repost that content after complying with a takedown notice.
Another issue rights holders described in detail was the onerous takedown process technology companies such as Facebook, Google, Amazon, and YouTube, as well as some ISPs, have devised. The notices seem to be a deliberate attempt to make it difficult for rights holders and creators to issue notices. (Read Vox Indie on Google’s Roadblocks to the DMCA Takedown Process for a description of such a process.)
Shaftel’s testimony on the takedown process was drawn from the responses to the DMCA survey that the Guild and other organizations ran earlier this year. The representatives from the Copyright Office seemed genuinely surprised when Shaftel stated that artists and photographers reported that some OSPs require visual creators to submit copyright registration certificates with the takedown demand. (Copyright registration is not required by law for a DMCA takedown notice.) Others even rejected that as proof of copyright ownership, since registration certificates don’t include an image of the copyrighted work.
The most startling statement came from Patrick Flaherty from Verizon, who reported that Verizon ignores any takedown notices that aren’t accompanied by a court order. If this is correct, this means that to remove their infringed work from a Verizon website, a copyright holder has to hire an attorney and go to court to get a judge to issue a court order. The onerous requirements by OSPs (such as court orders, registration certificates, and multi-step procedures) ignores the intent of Section 512 of the DMCA law, which is to provide copyright holders an expedient means to remove their infringed work, while providing a safe harbor protection for OSPs from lawsuits.
Shaftel thinks rights holders and creators were able to impress upon the Copyright Office that the DMCA process is failing them. Her takeaway was two-fold:
1. Creators and rights holders were unanimous in stating that the law needs to be revised to takedown and stay down.
2. There needs to be a standardized form for takedown notices – perhaps created by the Copyright Office – to enable a clear, simpler procedure, and prevent OSPs and technology companies from piling on additional requirements.
Shaftel is unsure of where the Copyright Office will take the findings; any adjustment to the law will have to be made by Congress. But she’s heartened that the concerns of visual artists were heard, and by Jackie Charlesworth’s assertion that she believed the Copyright Office did have the power to compose a standardized takedown notice and procedure so as to eliminate ISPs from making up their own requirements.
Below: The venue for the roundtable discussions, the Thurgood Marshall United States Courthouse in New York City.
Meet Yanique DaCosta, Southern Region’s Candidate for Representative!
Posted by Rebecca Blake on June 30, 2016
There’s a strong wind blowing from the South… We’re delighted to announce another candidate for regional representative, designer and fine artist Yanique DaCosta. DaCosta first came on our radar when she enthusiastically agreed to participate on a number of our member outreach initiatives, and her energy and drive – and infectious laugh – made a huge impression. So we were thrilled when she decided to run for the role of Southern Region Representative to National.
DaCosta originally hails from the South – the very far South beyond the US borders. She was born in Jamaica, but moved to Fort Lauderdale, FL in 2006. She has a long education in design in the arts: Associates degree in Graphic Design from Miami Dade, Bachelors in Studio Arts from Florida Atlantic U., and Masters degree in Media Arts from Full Sail. Her design firm, YKMD, focuses on brand development and new media. While her client base is broad, she’s been especially active in the entertainment industry, having worked on projects for HBO, ClearChannel, Atlantic Records, and Circle House Studios.
She has also continued to paint, and will be exhibiting later this year at a Caribbean art and music festival, as well as at Old Dillard High School Museum, a magnet school she first attended when arriving in the USA. In her spare time, she will be teaching a figure drawing at the African American Research Library and Cultural Center in Broward County, FL. The center is located in a predominantly African American and culturally enriched community, and teaching there is her way to give back to her community.
Below: DaCosta loves to connect with fellow designers, and continues to paint. (Used with permission)
DaCosta became aware of the Guild from the designer Barry Zaid, who she meet in the hallways of Miami International University, and Art Institute. Zaid is an accomplished designer and illustrator, originally employed at Pushpin Studios in New York City. He employed DaCosta in his studio, helping to digitize his vast library of artwork (much of which was created before the advent of publishing software). In hearing DaCosta complain about the low fees – packaged as work for “exposure” – demanded by entertainment companies, Zaid suggested she take a look at the Guild, an organization he had joined years earlier. She did, and became a member in March 2016, wanting to be a part of an advocacy organization for visual artists. As she said, “What’s the point in just sitting around and complaining? Do something!”
She’d like to bring that energy and drive to the Guild board, working to raise awareness of the Guild and the initiatives we support. At the outset, she’s working on utilizing social media to get the Southern Region noticed, scheduling Twitter chats and planning meetups. Her background in digital media and marketing is apparent; she’s already drafted a series of talking points based on information from our Handbook, and she’s gotten several design colleagues with big followings to participate. Her goal is to make the organization appear a bit less “starchy” so that our message of self empowerment and knowledge resonates. After all, “people won’t follow you unless they have a personal connection to you.”
© Watermark: A Tool to Protect Your Work Under the DMCA
Posted by Rebecca Blake on June 29, 2016
Think putting a watermark with your name and copyright symbol detracts from your illustration? You may want to reconsider doing without it. In “CMI and the DMCA,” attorney Leslie Burns explains how including such information, called Copyright Management Information, gives you an additional, powerful tool to protect your copyrights online.
“Copyright Management Information” is defined by the Digital Millenium Copyright Act as “information conveyed in connection with” copies, displays, phonorecords, or performances of a work. The information is broadly defined, and can include the name of the work, the name of the author or copyright holder, identifying numbers or symbols, etc. That means a simple “© 2016 Your Name” inserted into the corner of your illustration or design qualifies as CMI.
As Burns elucidates, including your watermark on your image confers two tools you can use in addressing infringement. First, according to the DMCA, if an infringer removes your © watermark and reposts your image, the infringer has committed one to two violations of the law – each carrying statutory damages of at least $2,500 – whether or not you registered the work. Additionally, the removal of your watermark shows that the infringement was willful. That means if you did register your work, the statutory damages could go up to $150,000. (The minimum stays at $750.) It goes without saying that you should register the copyrights on any work you publish online!
Burns states that the notice needn’t be large – just legible – and recommends that the notice include the copyright symbol ©, the year of publication, and your name. She also points out that including the CMI increases the chance for damages to be awarded – which would make a lawyer far more inclined to take the case on a contingency basis.
Leslie Burns is a California-based lawyer specializing in copyrights, contracts, and business law. Her background makes her a unique advocate for visual artists – for years, she was the studio and marketing manager for photo illustrator Stephen Webster. Her articles are both entertaining and informative; her article “More Monkey Business” (published on her Burns Auto Parts blog) was one of the most amusing takes on the monkey selfie dispute in 2014.
Below: Burns' copyright notice on her photograph (snapped while in law school) isn't large, but clearly imparts her information. (Used with permission.)
HOW Design Live: A Fun Pricing Game, and a Memorable Conference
Posted by Rebecca Blake on June 07, 2016
The Guild was invited to participate at HOW Design Live this past May, and decided to contribute a live version of our Pricing Game. For years, the Pricing Game has been one of our most popular webinars. Its advent was as a live event, created by the Boston Chapter of the Guild about 25 years ago, and continued annually by the New York Chapter for many years. (For the uninitiated, during the Game, the audience reviews the specs for actual design projects, and “bids” on what they would charge. Afterwards, the actual estimated and invoiced prices are revealed, and the designer’s pricing techniques are discussed.) While the format works as a webinar, the opportunity to bring it back live, with audience participation, was exciting.
For the HOW Design Live (HDL) Pricing Game, we solicited the work from three Guild members, all designers: Todd LeMieux (who is also our New England rep), Jonnie Bailey, and Peiro Salardi. Each contributed a beautiful piece of design – logo, brochure, and logo plus packaging, respectively – and more importantly, each had followed best practices in pricing and managing the project. The result was that the HDL Pricing Game attendees were treated to examples of beautiful work, as well as valuable insight into how competent professional designers conduct their business. The event was well received, in large part because the audience was so engaged in debating and defending their prices. A highlight was the heated (but polite) debate between “Mr. $500” and “Mr. $35,000”, who contested what the correct price for LeMieux’s logo design should be. (One was an independent designer working out of a small town, and the other worked in-house for a large branding agency – hence the huge pricing disrepency.)
Below: Last minute prep (and hyperventilating) before the presentation on Sunday.
Overall, HOW Design Live was an inspiring conference. Presentations were organized into concurrent morning and afternoon sessions, with morning, noon, and evening keynote addresses. The organizers covered a wide base of topics, from very practical advice (such as our Pricing Game), to diversity, to entrepreneurial advice, to the purely creative and inspirational. The conference drew well-known speakers, such as Stefan Sagmeister, Chip Kidd, and Debbie Millman. Many of the presentations were memorable and unique, such as James Victore urging designers to celebrate their weirdness, Ellen Luna advising to let go of the “shoulds,” and Frederick Ost and Magnus Berg punctuating their gleefully obscene talk with live rock-and-roll.
The unexpected bonus to HDL was connecting (and reconnecting) with other artist advocates. Highlights were a discussion with attorney Katie Lane on how we can educate better on intellectual property, and the evening spent catching up with art licensor J’net. Those discussions, and the interactions with HDL participants – during coaching sessions, or answering questions after the Pricing Game, or connecting with the local AIGA chapter – made HDL a truly wonderful experience.
Below: With slides like this, no wonder James Victore’s keynote address was wildly popular.
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