Monday, February 15, 2010

Supreme Court To Decide Copyright’s Fate For Online Monetization

The U.S. Supreme Court will soon make its most momentous decision affecting photographers, stock photo agencies and other creators. It will soon decide whether creative works must be registered with the U.S. Copyright Office before they can be included in a class action law suit concerning copyright infringement. What’s at stake is the future of revenue for most of the Internet uses of creative works.

The USA is one of the countries that require governmental registration to enforce one’s copyright in court. At issue is whether or not this formal registration of copyright should be required to participate in a class action law suit that is copyright related.

It’s a plausible argument. If registration is required for individuals to sue for copyright infringement in U.S. Federal Court, a larger “class” that includes many individuals could also require registration to collectively sue on behalf of those individuals.

On the surface, this might seem like a boring legal technicality. In practical terms, though, this Supreme Court decision could ultimately determine each creator’s ability to make money in the digital age.

Some estimates say there are 20 unauthorized copies for every licensed song online and 100 stolen versions for every authorized image. There are about 3 trillion images online and billions of new images uploaded every month. The problem of unauthorized use is increasing almost exponentially as each new web use exposes that copyrighted work to still more unauthorized copying. Surveys indicate that half to three-quarters of people think it should be OK to take the images of others for personal use on a web site. For rights holders, it’s practically impossible today to get paid for small Internet infringements. Despite all the mircostock shops, it could be argued that a failure of the marketplace has already occurred at the low-end of the market for images online.

The class action law suit is currently the best method for individual creators to get paid for vast quantities of tiny digital infringements. (Other solutions, like Veripixel™, are on the way). A class action can leverage the ability of each individual photographer to monetize their copyright. Without class actions, enforcing low-value, online infringements is virtually impossible because the cost of governmental registration and pursuing a Federal law suit far exceed the potential reward from each minor, individual infringement.

The importance of copyright is paramount in the digital age. Copyright piracy costs the U.S. economy 373,375 jobs and $58 billion in annual output, Senator Hatch tells us. We should have great respect for the framers of the U.S. Constitution who had such clairvoyant foresight in understanding the value of creativity. Copyright was so important to the founding fathers of America that they included it in the Constitution. (Later “after thoughts” added Freedom of Speech, the Right to Bear Arms, Trial by Jury, and the Abolition of Slavery).

So, will the highest court in the land agree with the legal premise that what applies to the one must also apply to the many? Or, will it side with the greater good to society that copyright provides creators and content consumers, which was more in the spirit of the Constitution? The answer is very close and could come as early as the week of February 22nd when the Supreme Court resumes from its current hiatus. In any event, it will be decided before the court adjourns this coming June.

While we wait for the court’s momentous decision, the great copyright debate is increasingly entering the awareness of main stream America. We are all observing the tug-of-war that is evolving between corporate giants and individual creators over who will control the revenues of creative works online. Against this “backdrop”, which is deciding the value of online image use, the importance of copyright education must be emphasized. It’s important that photographers, illustrators, song writers and other individual creators be well informed on the topic and proactively engage in the efforts that represent their collective best interest. One good opportunity to do both is ASMP’s one-day symposium entitled “Copyright and the New Economy: Issues & Trends Facing Visual Artists” on April 21st in New York.

Randy Taylor
Co-founder of The Copyright Registry at

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