Copyright is a complicated issue to navigate, one which many artists avoid because they simply can’t afford to get involved when something comes up.The expense of a lengthy litigation and the energy that needs to be shifted from the studio to the courtroom (read: further loss in revenue) create a daunting scenario. Would a small claims court option eliminate those challenges?
I think anything that would make reclaiming design ownership easier would be progress from the current system. When you have creatives unable to protect their intellectual property, you essentially invalidate their work. When it’s been proven that creative cultures stimulate economic growth, it’s wrong to continue to overlook the broken copyright system .
One of my internet artist buddies, Kat Caverly, took many precautions to protect her work online. Still, one of her original photos was taken and released by someone else on flickr and tagged with a Creative Commons license. DMCA complaints barely put a dent in the use, and loss of income, resulting from the infringement. As she puts it, “Now I wait for the small claims option, to make the war worth my blood, sweat and tears. It is the only thing that is going to shake people out of their no risk attitude about using the work of other people without permission.”
I‘ve talked to other makers quite a bit about copyright, so I wanted to be better educated on the small claims option in order to even be able to discuss it. After reading 2 documents on the issue I still found the legalese intimidating though, I plodded slowly along, my eyes often and quickly glazing over. Though interesting, the complicated articles proved exactly why law school is so lengthy. Can we, as artists, benefit?
Here’s how I see it:
The actual proceedings would need to be simple, straightforward, and approachable to the average person. For the budget-minded it seems to be a great option: the artist could represent himself rather than using a lawyer. There wouldn’t be major travel costs since proceedings would be handled on the state level where written submissions and video conferencing would replace in court appearances.
Though the other side (think big retailers) would often still be represented by big pants lawyers, though, and I wonder how independent artists representing themselves would measure up. If copyright has been filed in a timely manner, the cost is a nominal $35. If you need to fast track the filing, it can cost closer to $800. (1) If copyright has been filed relatively close to the time of creation then it seems the process of discovery would be fairly easy and straightforward, though who knows? Maybe I’m a bit naive about this?
The fact that there would be no jury would make the process so the defendant would have to voluntarily join the action and if both parties don’t agree to small claims the issue at hand could be pursued on the Federal level with a jury trial. There is a strong possibility there would be a cap on damages asked for, making small claims a “better deal” for the defendant.
When I really think about it, small claims seems like a viable option; mostly because it would be an affordable option. It would work well for artists like Caverly, who are up against other individuals claiming her work as their own. On the flip side, I wonder how well an artist would be able to argue their case when up against a well-versed corporate lawyer? Time, well actually congress, will tell if small claims will be a possibility to sort out copyright infringement.