Why Creators Like Me Are Lining Up in Support of the CASE Act

By Jenna Close
May 23, 2019

“It is extremely uncomfortable and difficult to explain to a client that, while I own the copyright to the work I create specifically for their brand, in practice I have no way to pursue unauthorized use of that work.”

CASE ActI have heard it said that a right without a remedy isn’t really a right. This saying completely and accurately sums up my experience with copyright infringement in the modern age.

I am not an attorney, let alone a copyright lawyer. I am a small business owner whose livelihood is constantly affected by the lack of reasonable avenues for pursuing infringement of my work.

For more than a decade, I have been making my living as a commercial photographer and filmmaker. During that time I have witnessed my works infringed online—an exceedingly easy thing to do in the digital age—but also in print. A most memorable example of this was finding my photo enlarged as the backdrop to a competitor’s trade show booth while my paying client was rightfully using the same artwork across the room at their own booth. An act like this is both unlawful and egregious. But the extraordinary costs of pursuing a copyright infringement suit in federal court prohibit me from seeking recourse this way without taking on the additional risk of bankruptcy.

Devaluing Creativity and Damaging Reputations

The inability to defend against infringement does damage beyond the loss of potential income (which in and of itself is no small thing). Infringement actually degrades my standing as a professional and lowers the value of my services. It takes something I produce as a custom product for a paying client and renders it free without consequences to any other company who uses it. I have little reasonable recourse to pursue these companies because my only option is to hire an attorney and file suit in federal court—an option that I and so many men and women like me cannot afford. And trust me, many of these infringers know that.

It is extremely uncomfortable and difficult to explain to a client that, while I own the copyright to the work I create specifically for their brand, in practice I have no way to pursue unauthorized use of that work. That devalues both my client’s investment in my product as well as my reputation. Multiply that by the hundreds of thousands of photographers, songwriters, authors and many other creators in business today, and you see the impact this has on a significant portion of working class-citizens.

The Case Act: A Lifeline for Creators

What I need, what I am asking for, and what the Copyright Alternative in Small-Claims Enforcement (CASE) Act would help accomplish, is a more affordable and less complex legal process in which hiring an attorney is optional. Let’s take this bill for what it really is: it finally provides small business people with a real opportunity to seek recompense for infringements of their creative works. It is not a predetermined declaration of liability, which means I may win some cases and I may lose some. I am completely fine with that; that is the justice system as it should be and would be orders of magnitude better than the way the system presently works.

I am not in a position to risk the money and time to pursue infringements in federal court. This option is not a remedy for me. I am an independent businesswoman and, while I provide a service that is valuable to the economy of this country, I do not have the resources to dedicate to an endeavor of that scale. I am not alone in this. If you are reading this, I ask you to please support the rights of myself and others who are making their living in full realization of the American Dream by doing what they love, working for themselves, and providing a valuable service to others higher up the economic food chain. Please show your support for the CASE Act by writing your Senators and Representatives to urge them to support the bill. Help give us a chance to defend our Constitutional right and our livelihoods.

 

The Author

Jenna Close

Jenna Close is the Director of Photography at Buck the Cubicle, based in Southern California. She is also the Past-Chair of the National Board of the American Society of Media Photographers.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 8 Comments comments. Join the discussion.

  1. Family of American Creators May 24, 2019 8:47 am

    Well stated, Ms. Close. America’s competitive advantage in the world is the creativity of its people, which must be protected with laws and policies that deter such criminal activity and from the harm done to the creator, and our economy.

    Currently, our legislators and adjudicators do not see this for what it is: a theft, as you described, “….was finding my photo enlarged as the backdrop to a competitor’s trade show booth while my paying client was rightfully using the same artwork across the room at their own booth.” Yet, any moral and law abiding person does.

    Lastly, our children are creating and inventing online. The next generation of the creative class that our economy will need to prosper. I would like to see this potential legislation also stop the forced transfer of our children’s IP to the big tech platforms on which it was created via forced licensing user agreements.

  2. jack May 24, 2019 2:17 pm

    Why not extend the provisions of the CASE act to all creators, I mean inventors. Why only copyrights? If I create invention or artwork there is no difference in my situation when comes to real enforcement of my rights.
    In China at least they created administrative offices dealing with infringements at no cost to patent owner or small patent owner. In EU mosaic law there is 30 euro cost to apply for (Utility Model) in Germany and 7 years you can wait before start examination process with their Patent office. There is couple of hundreds cost of any challenge to your design patent not couple hundred thousands like in US…..In US law means big money paid to moneyed lawyers. Culture we live in where big corporations steal left and right with no regards to anybody right doesn’t reflects well on so called American democracy.
    There is no democracy where is basic injustice and thief openly enjoy fruits of his/hers actions. I think law and democracy in US was long time ago hijacked by Lawyers. The issue of affordability of “JUSTICE” in US is across the lines touching every single citizen with certain level of income. In the CASE law case it defies logic if we create remedy just for small group of people not all creators / inventors.

  3. jack May 24, 2019 2:35 pm

    What a RELIEF. Reading of plight and tragedy of so many US inventors ruined by “efficient infringement” finally I came to one possible conclusion.
    Focus abroad and put your US patent applications on back burner extending it as long as possible in wait for return of common sense to US patent law.
    WHAT A RELIEF realizing that i can focus on real development , real IMPLEMENTATION without expecting that sooner or later my rights are going be trampled by some SOB.

  4. Benny May 26, 2019 1:44 am

    Family @1
    “Lastly, our children are creating and inventing online. ”
    However, they also expect to get everything online for free. (When was the last time your children paid for online music? My generation bought physical copies of recordings for real money).

  5. Anon May 26, 2019 11:58 am

    I actually agree with a point being advanced by Benny (at his post @ 4).

  6. Family of American Creators May 26, 2019 3:48 pm

    To our legislators and adjudicators: In the coming months you will hear this @ Benny 4 and @Anon 5 anti-patent, big tech tact and mantra, repeatedly: our children and independent inventors are thieves and trolls. Their big tech lobby messaging will insist upon the status quo and the CASE Act and Section 101 reforms are not needed, even counterproductive.

    Additionally, be aware that the Benny and Avon accusations are inaccurately based on a bit of a technical time warp. A decade ago, the music industry grudgingly adopted digital rights management platforms, to the benefit of Spotify and Apple and Google Play Music, whereby music has since legally and rightfully been purchased by consumers and children (though fair to music artists is questionable). Further, there was time when big tech platforms offered free or discounted charges for use of their platform products so that children and students learned on them, and their earned patronage and loyalty later graduated to professional, full-pay, products. No more, not enough margins and profits. Now, children and students incur forced transfer of their IP to big techs, which is much more profitable as are the big tech efficient infringement business models.

    So, let’s do what is obviously right for America, and its creators and inventors of every age and class, support the SUCCESS Act and Section 101 reform. Thereby leveling the playing field for all Americans, and ensuring the prosperity of our economy and country.

  7. Anon May 27, 2019 11:17 am

    FAC,

    You misconstrue the position that I have indicated that I am in agreement with.

    These are NOT innovators that I am talking about, nor are they “creative” in the mere “I saw this on the internet and thus it must be free” mindset that has been identified.

    Further, had you bothered to recognize my positions on the many other items to which I comment upon, you would recognize no greater anti-Big Tech “mantra” and Pro-Patent advocate than I.

    If you want to explore the topics that you additionally note, please feel free to do so without the improper classification of the point provided.

  8. Chris July 28, 2019 5:36 pm

    This is actually a horrible bill that patent troll type attorneys will be all over (I’m an attorney…I deal with trolls all of the time). It will be abused and tens of thousands of Americans will become targets. Given the lack of judicial protections and ease of default judgments, it truly is frightening litigation.

    BUT you are correct, the problem needs fixing. And every intelligent attorney in the country knows the easy fix. Make KNOWING violations (such as the one by your competitor) atrociously expensive. Something like:

    A) If you lose a copyright infringement case, that was knowing and intentional;
    B) You owe the other side a $100,000 penalty and 10x their total legal fees;
    C) Make the legal fee damages non-dischargeable in bankruptcy;
    D) If dont by a business, that can’t pay the judgment, make the stock/ownership of that business forfeited to the aggrieved party; and
    E) For infringement cases brought in bad faith, the penalties apply to the claim bringer.

    AND, the only person that can bring the claim is the ORIGINAL OWNER of the copyright (e.g. slay trolls).

    The entirety of the copyright/patent system has become a game for unscrupulous lawyers to profit from scamming people.

    To fix the problem, you first have to end the trolling, then protect the victims.

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