By Mark Leibowitz
Originally published in Morning Consult. Image by Todd M. LeMieux.
As a commercial photographer and director, I’ve had the opportunity to shoot all over the world for the world’s largest companies. I love my job, and the travel, but sometimes I wish my photos didn’t travel quite so well.
The advent of digital photography and distribution has many benefits, but it also makes stealing my pictures much easier. Posting photos online, without permission, has become so commonplace that it’s impossible to keep tabs on where my work appears. The world has become a place where taking content from creatives is the norm, not an exception.
Many of these uses are not malicious or illegal and most don’t drive profit for the people posting my work. However, when companies, websites, and individuals illegally post or otherwise use my work to advance their businesses, in clear cases of advertising and marketing – that is obviously wrong and illegal.
For photographers, there is little recourse when it comes to stopping the digital theft of our works. But, a bill currently making its way through Congress has the potential to help. If enacted, The Copyright Alternative in Small-Claims Enforcement Act of 2019 (CASE Act) would establish a small claims board within the U.S. Copyright Office to settle copyright infringement cases.
Currently, if I want to litigate, I must do so in federal court, where it costs an average of $397,000 for a single case. For most individual creators, including me, that kind of money simply isn’t feasible.
To be clear, a lawsuit is as an absolute last resort. I always prefer a conversation and reaching an agreement. But when an agreement can’t be reached and the cost of litigation is higher than the infringed work is worth, most creatives just have to let this kind of theft go unchallenged. In the instances where we can’t find a common ground with the infringer, the CASE Act will enable creatives like me to more efficiently represent ourselves in court and stand up for our creative rights on our own terms. The bill is limited in scope but, while not perfect, it gives creatives like me an opportunity to be heard.
The existence of a streamlined process could even serve as a deterrent. As I mentioned, negotiations are always the first step and are far more common than filing claims. I am hoping the existence of the tribunal and the possibility of an expedited lawsuit will make it more efficient for me to negotiate with businesses that infringe my work.
The positive ramifications of this bill, should it pass, will ripple far beyond individual creators who gain the ability to file copyright claims. Small businesses battle the scourge of piracy, too, and happen to make up 84 percent of the creative industries in the United States. When we lose earnings to infringement, it’s not just one person’s job in jeopardy, but many. My small business hires office personnel, camera assistants, grips, lighting technicians, videographers, editors, re-touchers and other workers for every commercial shoot we do.
We’re just a drop in the bucket of the core copyright industries, which provide jobs for 5.7 million Americans across the country. From film to music to video games and beyond, we are a nationwide community that, all told, contributes more than $1.3 trillion to the gross domestic product – more than the aerospace, agriculture and pharmaceutical industries.
Particularly in New York, where much of my work takes place, Sens. Kirsten Gillibrand and Charles Schumer are questioning the importance of the bill. For reference, New York City alone is home to 293,000 people and pays more than $30 billion in wages. Additionally, New York’s creative economy contributed roughly $110 billion to the country’s GDP in 2017. I would ask Gillibrand and Schumer to help protect this vital part of New York’s economy as it is crucial to so many of their constituents.
The CASE Act has re-energized me. I will never be able to stop every pirate who illegally posts my images, but the CASE Act will make it much easier to at least fight the more egregious infringers – especially those who don’t care about the millions of small businesses and individual workers from whom they are stealing. For many creatives, recovering at least some of the losses incurred by piracy can mean the difference between making their next project, or not – or paying the rent, or not.
The CASE Act isn’t just a benefit for individual creatives, it will help strengthen a creative community that doubles as one of America’s most important economic drivers. Supporting this bill will help give us the freedom to pursue our art as a career, to have confidence that the countless hours and resources we put into crafting our culture-shifting works will be meaningfully rewarded. This bill must pass in order to protect the hard work of millions.
Mark Leibowitz is a director and photographer based in Los Angeles who creates commercials, print advertisements, editorials and digital activations for top companies and editorial outlets; his clients include American Express, AT&T, Cisco, Instagram, Visa, Google, Twitter, Netflix, Bank of America, Proctor & Gamble, Glamour, Esquire and GQ.