How US Copyright Law (sometimes) Fails Small Photographers

Photo District News is reporting that US Airways, it’s insurance company AIG and their lawyers have moved to prevent photographer Stephen Mallon from displaying photos of the recovery of Flight 1548, photos which he appears to own the copyright to. Mallon was hired to document the recovery process by Weeks Marine, who had given Mallon (as had the NTSB) their okay for showing the photographs involved. Mallon is asking people to contact US Air and AIG and express their displeasure on the subject. I’ve done that, but in this point, I’d like to talk, maybe even rant a bit, about the problems with the copyright system and the law as it applies to small-shop photographers like myself and Mallon.

Mallon appears to have a fairly ironclad legal right to publish those images, so why is this a problem at all? It’s a problem because neither has the wherewithal to undergo an expensive legal process to defend their rights, because AIG would, if they prosecuted this case, have to make it a federal case of it, both literally and figuratively, and therein lies part of the problem.

If someone comes into my yard and breaks my lawnmower, and I want restitution, I can file a claim in California’s small claims court. In California these courts inexpensively handle small (less than $7500) cases, and the rules of those courts are set up to make them accessible to folks without a lawyer. Sadly, there is no equivalent of small claims court in United States Federal Law, as such, prosecuting even the smallest copyright case through the court system is likely to end up costing tens of thousands of dollars. Mallon probably would have trouble proving that his claim was worth tens of thousands of dollars (not to mention how the case would play out with his client, Weeks Marine, who’d get caught in the middle of this), and so the court system is effectively useless to him.

The same dynamics play out nearly as poorly for small photographers whose copyrights are violated by theft. If someone grabs one of my images and uses it on the packaging for their cat litter, I’m going too have to judge whether the chance of recovering the license fee, probably no more than a few hundred bucks, is worth the investment of tens of thousands of dollars. In many cases, I’ve lost before I’ve started.

There is an important exception. The Digital Millennium Copyright Act gives me a tool that can be used in cases where the copyright theft ends up on-line. If Fred grabs one of my images and uses it to sell cat litter on his web site, I can issue a “DMCA takedown notice” to their web hosting company and ask that the infringing content be removed.

This DMCA can even help with tangible products. Last year, a music CD was produced with one of my images on the cover. I spent two weeks trying to contact the record company and the band to no avail, but eventually I realized the product was being sold on Amazon.com, and that my image showed up in the product listing there, so I DMCA’d the infringing content at Amazon.com. Less than 90 minutes later, the record company was trying to contact me, and within a day, I had a check speeding my way for payment. Had the CD only been distributed off-line, I’d’ve had no lever to enforce my rights.

I’d like to see that fixed, perhaps with a “small claims court” for copyright, any other suggestions?