The American Society of Media Photographers (ASMP) and Copyright Clearance Center (CCC) are jointly producing a series of webinars to educate creators and users on copyright, licensing and monetization of content. The first webinar in a series is “What Everyone Should Know About Copyright” With Susan Carr & Richard Kelly.
Let me start by saying that I have been a long supporter of ASMP and have been a member since 1979. Having CCC as a partner being in the best interest of the ASMP membership is akin to Having BP partner with The Florida Beach Association and present a program on the importance of clean beaches or for the AMA to partner with Camel and do a program on the importance of clean air or proper health care.
I especially feel the first webinar called ”What Everyone Should Know About Copyright” makes a complete mockery out of copyright with this partnership.
The CCC provides clearance to corporations to photocopy articles at a profit. The CCC grants a license to photocopy without paying all of the rights holders and without having all the rights to do so. Back in 2002 myself (Seth Resnick), Michael Grecco and Paula Lerner filed a suit against the CCC. http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=zobel/pdf/resnick%20class%20certification.pdf
Freelance photographers Seth Resnick, Paula Lerner and Michael Grecco sued The Copyright Clearance Center, Inc. (“CCC”), for copyright infringement. Defendant is a corporation that acts as an agent for publishers by granting licenses to thousands of businesses, academic institutions, libraries, and other entities for the photocopying of magazine articles. The CCC and publishers enter into agency agreements that include a representation and warranty that the publishers own sufficient intellectual property rights to grant photocopy authorization.
Licensees pay the CCC for photocopying rights, and the CCC in turn distributes a portion of the licensing revenue to publishers. In their First Amended Complaint, plaintiffs allege that when they sell a photograph to a magazine, they typically grant a limited license for the use of the image and retain all rights beyond the one-time publication.
Some publications, such as Newsweek and Forbes, do not allow the CCC to authorize reproduction of photographs.They alleged CCC to have infringed plaintiffs’ copyrights.
Plaintiffs now bring a motion under Fed. R. Civ. P. 23 to certify the following class:
All persons and/or entities who own or are the holders of a registered copyright in at least one photographic image (“Images”) that was created and first published after January 1, 1978, and appeared in a publication contained in the database of over 1.75 million publications listed with [CCC], which, without the holder’s permission or prior authorization, was copied, licensed or sold by CCC, and/or CCC granted permission or authorization, in consideration of a fee, to others to copy such Images. ”
We lost trying to certify a class action against the CCC.
The District Court denied the motion for failure to satisfy the numerosity requirement. That is, Rule 23(a) provides that class certification is proper only if, among other requirements, “the class is so numerous that joinder of all members is impracticable”.
The Court wrote that “In order to satisfy the numerosity requirement, plaintiffs must show that it is impracticable to join all photographers who have sold their copyright-registered images to CCC-affiliated publications under limited licenses, thereby retaining the exclusive right to reproduce their own work. Citing deposition testimony by the former executive director of the American Society of Magazine Photographers (“ASMP´´), plaintiffs estimate that there are “roughly 20,000´´ freelancers working in the United States. Additionally, plaintiffs state that freelancers “typically only license limited use of their product.´´”
The Court continued that “The primary evidence for this proposition is plaintiff Seth Resnick’s declaration that “the standard practice in the industry is for freelance photographers to own the copyright in their photographic images´´ and excerpts from two ASMP manuals that suggest the same. Such bare assertions do not begin to address the question of how many photographers grant limited licenses to publishers that do not include photocopying rights. The record provides little basis for this Court to determine whether joinder of all class members is impracticable or, for that matter, whether the limited licenses granted by plaintiffs are typical of the class.”
The lawsuit against CCC was not about putting money in the pockets of the plaintiffs. In fact our goal was to file a class action suit which would put money in every photographers pocket who registered their copyrights. Further the goal was to set up a plan to pay photographers what they should be legally entitled to collect from their works. The lawsuit happened only after several years of trying to get CCC to come to the table.
The issue isn’t so complex. Organizations very similar to CCC pay photographers everyday in other countries. In fact the CCC is just about the only organization in it’s class which doesn’t pay photographers. They have had a decade and haven’t done one thing. They are actually gaining recognition for copyright info right now from this webinar series and to me that is simply reprehensible. I also find it unacceptable that ASMP hasn’t at least been honest with the membership about what CCC is really about. I simply fail to see how a partnership with the CCC can in any way lead to anything positive for ASMP members. Clearly it is great PR for CCC.
Why not take the initiative and ask the membership how they feel about this? I would bet my bottom dollar that if it were put to a vote by the membership to partner with or not that the “nots” would win with a huge majority.
The fact still remains that nearly a decade later, the CCC collects millions and millions of dollars and has yet to pay one dime to any photographer. How can ASMP justify doing a series of Webinars on Copyright sponsored by CCC the very organization that continues to gain financially from licensing our copyrights without compensation to the creator. At the time of our lawsuit they insisted that there simply wasn’t a database in place to compensate photographers like they have with authors. A decade later there has been zero progress.
I am truly appalled that the organization that I have paid dues into since 1979 could truly sponsor these lectures with the CCC. Ironically the next webinar says it all “What Everyone Should Know About Copyright”.Photocopying has gotten much more sophisticated. Digital reprographics, are available as perfect-copy reproductions, indistinguishable in quality from current printed pieces.In the past photographers have been paid lots of money for high end reprints from publishers. While many of them may argue over the amount of the payment most in the end have willingly paid for those reprints and many times it is a far greater sum then the original assignment. A company which would have gone to the photographer for permission and payment can instead obtain a license from the CCC to photocopy an article with one or more images. The company could use a newer state of the art color copier and reprint the article on higher end paper better than the original. The company would receive permission to make copies. The end result would be a distribution of a reprint granted by the CCC and the photographer would be cut out of the picture. Had this company gone to the the publisher they would have been told the company need permission from the photographer and would have paid the photographer but instead they can go through the CCC and the photographer receives zero.
Check the financials of the CCC and their annual revenues were in the hundreds of millions. Our lawsuit was almost a decade ago so if you add up the numbers the CCC has easily profited in the billions since our lawsuit and certainly had the funds to find a methodology of payment to photographers. In the U.S. alone, domestic reprographic royalties now total over 100 million dollars a year. In other countries, it’s estimated that 12% of reprographic money is returned to the photographic community but in the U.S. none of it is.
In the U.S. the Copyright Clearance Center (CCC) collects domestic reprographic royalties. CCC distributes some of this money to writers, but they don’t return any to photographers because they don’t acknowledge photographers to be “ authors.”This is where ASMP should in my mind be focusing the attention.
A system is really quite easy and would promote copyright registration if payment went to those who register their copyright. This in itself would do far more to get photographers to register than a webinar.
Lexis Nexis maintains a database of the majority of magazines and credits and one search would show every magazine that a photographer with credit has been published in with the issue date and page number. This is all that is necessary to get payments to photographers as a start and yet the CCC has never made an attempt.
We stopped pursuing our lawsuit because the CCC had oodles of money and while we wanted to appeal to a higher court, we didn’t because we could have been held liable personally for all the legal fees and while Michael and Paula and I were all for a fight, none of us had the finances to do this and risk our houses and families in the process.
We need all the trade organizations and certainly ASMP to take a real stance on this and try hard to force payment to the rightful owners of the copyrights. In my mind the absolute worst thing we could do is to glorify the CCC as an educator of copyright.