Why the CASE Act Is So Incredibly Important for Every Photographer

If you’re reading this, at one point or another you felt compelled to pick up a camera, pursue and develop the craft, or appreciate the immense talents of other image-makers.

You found the satisfaction in documentation, capturing a moment, preserving a memory, literally stopping time. You discovered the power of the universe in your hands in that instant, and it inspired and ignited you the way only art and creation can. You felt the creative connection that I hope all of us get to experience as often and fully as possible, that artistic expression of self.

Yet, somewhere along the way, photography was divorced from the rest of the art world. It was seen as related yet separate–not part of the ‘traditional’ forms of artistic impression. Tell me why Art History included not a single mention of photography, and why History of Photography was absent of any overlap with artistic influence from other mediums. To me, art is inextricably linked and interwoven with all aspects of life. Even back in college, I thought this was a discouraging and concerning oversight. Math is built into music–time signatures, rhythms, tempo. Paintings embrace ratios, proportions, and psychology via color theory. Sculptors use lines, curves, shapes, physics, absence of space, or spatial awareness to communicate in ways words fail to. And yet, despite this integral infusion of science informing art and art embracing science, photography has been treated as the technical stepchild. It is likened to the mere ‘pushing of a button,’ with its craft and artistry dismissed almost immediately. This is something I believe we’ve all faced as photographers at one time or another. I remember the first time I encountered it vividly–an aspiring painter in my college Art 101 class made a comment cavalierly. This was a clear indicator that I was not a ‘true’ artist. But instead that my pursuit was lazy, lackadaisical, easy, not the path of a real, ‘superior’ creative, one legitimately talented, not just ‘cheating’ with a fancy toy that would do all the work for me.

I realized then, I was an infiltrator, imposter, not a real artist; I became hesitant and reticent to identify myself as the photographer-brand of creative because while Noah was both narcissistic and arrogant, his opinion was unfortunately not uncommon. The imposter syndrome began, and it took twice as long to unwind and quiet that ugly little critical voice as it did to have it set in. Forgive my side-story tangent: I promise it’s relevant.

“And yet, despite this integral infusion of science informing art and art embracing science, photography has always been treated as the technical stepchild. It is likened to the mere ‘pushing of a button,’ with its craft and artistry dismissed almost immediately.”

I think it all begins with us, as emerging artists, being taught to devalue our work. The reason is because everyone else who is not a photographer does that the instant we begin investing in it. There are the collectors, the curators, the appreciators, etc. Don’t get me wrong: I’m not saying the world is absent of people who genuinely appreciate the art of photography. However, from the moment we embrace our craft, we are constantly faced with clients who say, “How much!?!”, “That’s really expensive,” “Why do I have to pay for licensing?” and all other myriad of dismissive and nonsensical comments. My personal anecdote speaks to why photographers seem to have an even harder time protecting themselves and their work, and having both warrant respect in our world. Painters, musicians, graphic designers, sculptors, performance artists, etc. – their tools are better understood, their implementations are seen as tools, not the creator of the art. For some reason, beautiful photography is too often attributed to the camera, rather than the artist. It’s the magic box that does all the work automatically! We don’t look at a masterful painting and conclude the reason is due to really fantastic brushes and excellent watercolor pigments, rather than the imaginative vision of the painter. When the camera is seen as the creator, our intellectual property, our creative inspiration, and our artistic expression is dismissed and forgotten.

“I realized then, I was an infiltrator, imposter, not a real artist; I became hesitant and reticent to identify myself as the photographer-brand of creative because while Noah was both narcissistic and arrogant, his opinion was unfortunately not uncommon.”

So no wonder, despite having copyright infringement laws on the books since 1909, we as a community rarely see our rights adequately protected, or our materials responsibly managed. All too often, photographers function on the same mentality of hopes and prayers that gun lobbyists think will fix our rampant gun violence issues. Legally, we may have a contract, licensing agreements, etc., and should the client choose not to honor the agreement or pay us, in theory, we can fight and claim what is owed. However, the chances of me winning while not costing myself more than the amount owed are unfortunately slim to f*cking none. Just look at this PDN article from March of this year discussing the 2.5 billion images during the majority of 2018: “Copytracks estimates the damages total [in terms of copyright infringement] in the neighborhood of $600 billion… a day.” We saw billions of thefts last year. I guarantee a significant majority weren’t even discovered, let alone prosecuted, and this isn’t a one-off or a new problem. Anyone else remember this groundbreaking ruling? The University of Houston used a photographer’s personal image of the campus, made on his own time, dime, and energy, from an expensive helicopter. The photographer had to sue on property theft rather than the basis of copyright, as governments have immunity from infringement. The article further goes on to state:

The university asked the district court to throw the claim out, on the grounds that copyright is not considered property for the purposes of the state and federal “takings” statutes. And even if copyright is considered property under those statutes, the university argued, its actions did not amount to a taking of Olive’s property—because while it may have infringed Olive’s copyright, it did not take his copyright. (Olive still has control of his copyright to the image in question.)

We’re the age of digital pirates – sounds way cooler than it actually is. Because the age of the internet makes it simple to steal, thieve, and plunder this doesn’t change the fact that doing something like what the University of Houston did is straight-up artistic theft. The photo is being used explicitly for branding and marketing, which directly aided in ‘selling’ the school to potential ‘buyers.’ We understand the idea of paying marketing agencies, advertisers, promotional materials, etc. We forget that the visual component comes with just as worthwhile and justifiable a cost as those copy editors, ad execs, or graphic designers creating your gimmicks.

Or how about this one? As a documentary photographer who makes political commentary and social justice based work, the resulting feeling of violation after seeing my work used for patriarchal propaganda would be akin to someone invading my home or body, and claiming part of me as their own, repurposed and twisted into the most horrific re-imaging of it. To have an image you created with your values, your morals, or ideals as part of it, stolen and turned against those very values? Unquestionably, that’s a crime. It’s like using someone’s likeness without their permission in an STD ad. That’s why it’s called intellectual property: it’s not just the image itself, it’s also the ideas and imagination that built it. We have the right to say when, where, how, and with what message our work is used.

And even though we have our copyright inherently built into our images from the instant the shutter is clicked, we still encounter situations like this. Even when there’s a clear violation of copyright law, the defendant can claim they did nothing wrong by attacking a lack of proper copyright registration. I won’t even get into the cost-prohibitive nature of registering images with the copyright office, or the recent slew of celebrities claiming fair use.

Ultimately, no matter how clear the violation, how indisputable the disregard, we as a community have our copyright consistently infringed upon with a disturbing frequency of severity and with little to no ramifications. So much so that often photographers don’t even bother to pursue legal action–which sounds an awful lot like how our legal system treats rape and sexual assault. That’s why when I read articles like this whiner Stan wrote, I have little to no sympathy for his deep concerns about the potential legal ramifications that would accompany the CASE act or his opinion of it being a ‘shake-down.’ Dude, this isn’t me holding you at gunpoint demanding money from you – this is me telling you “you stole my stuff, now pay up” like you would be expected to if you hit my car, or break my camera. The violation is not of these at-risk infringers of copyright, it’s of the all-too-often-taken-advantage-of photographer. Mr. Adams goes on to write:

Even though the Supreme Court recently ruled that the registration process must be completed (either the Copyright Office granted or denied the application for registration) before filing infringement claims, registration is not required to bring an action under the CASE Act. This leaves everyone (other than the original author/photographer) with no guaranteed way to determine who holds the rights to unregistered works. Even if you identified someone as a potential rightsholder, it could be difficult or impossible to verify their claim of ownership without the official recognition by the Copyright Office. So even if you are acting in good faith and attempt to obtain permission before using a work, you may not be able to do so and there is no guarantee that you will have obtained permission from the correct party, leaving you exposed to claims via the CASE Act. For example, you see an image (perhaps a vacation photo) on a friend’s social media page and ask their permission to share it with your network. They agree and you share, not realizing that your friend copied that image from somewhere else, perhaps a travel company website. Your friend did not have the rights to that photo, and you made and distributed an unauthorized copy, exposing you to the possibility of an infringement claim from the actual photographer. Sharing that single photo could cost you $7500.

Just because you didn’t know it was illegal doesn’t make it an excuse to break the law or violate someone’s rights without punitive damages or reparations made. If I go to Singapore, I know I best learn the law before I’m there, or I could come back with one hand. You can claim ignorance and apologize for your lack of awareness. It doesn’t absolve you of financial responsibilities or legal damages – you still need to deal with the consequences.

If you’re still not sure how to feel about the CASE Act, here are some additional resources, including an Op-Ed piece written by ASMP member and community advocate Jenna Close on how and why respecting and protecting copyright is more important than ever, and this piece written by Zoe Keating in support of the legislation. Just about every professional association, non-profit, and organization has also advocated for the CASE Act, including and certainly not limited to ASMP, APA, the Copyright Alliance, PPA, NPPA, the Author’s Alliance, and the Graphic Artists Guild (you can review a more comprehensive list here).

You can keep most up to date with the CASE act here, you can contact your representatives and senators regarding the CASE act here, and for more information on how to submit cases of infringement that you’ve experienced, click here.