By Leah Shafer
On May 15, 2016, Richard W. Rodriguez captured a photo that quickly went viral.
Texas Rangers second baseman Rougned Odor punched Toronto Blue Jays Jose Bautista in the face after Bautista slid into second in the eighth inning at Globe Life Park in Arlington, Texas. It was the biggest MLB brawl in years and Rodriguez’s photo captured the pinnacle of a heated rivalry between the two clubs.
But Rodriguez could never have guessed what would happen with his photo within 24 hours.
Rodriguez took the photo during the eighth inning of a Rangers’ day game on a Sunday. He sent the photos in to his editors at the Fort Worth Star-Telegram, who published it online on their website and on social media. The Associated Press and Getty picked up the image shortly after and by that night, Rodriguez was seeing it for sale online without his authorization.
“I started receiving links that day from people and the image was being used by DIY t-shirt companies,” he said. “I went on eBay that night and saw people selling it on custom baseball cards, reprints, framed prints — it was kind of crazy how quickly that all started.”
This kind of situation is emblematic of the digital age, when a photographer’s copyrighted material can be hijacked and sold by anybody online. The two legal remedies for copyright infringement aren’t too great — but ASMP is working with politicians to help create new legislation that could create better remedies for photographers in the U.S.
In case you’re a little rusty on copyright, here’s how ASMP explains it:
Copyright is the legal bedrock upon which your photography business is built. It gives you the sole right to decide who can use the work you create. These simple basics will change the way you think about your images.
- You create it — you own it. Your copyright comes into existence automatically when you capture an original image.
- Any person or business must have permission (a license) from you to publish (reproduce) your images in any medium, physical or electronic. The specifics of what permissions you grant and how you go about granting them are detailed on the following pages.
- You do not have to register your work with the Copyright Office to acquire your copyright. However, the legal protections available to you are limited if the photographs are not registered. Those limitations can translate into lost income.
- Your name and/or the copyright symbol do not have to appear on or next to your image to have copyright protection. There are practical business reasons for labeling your work, but you do not lose your rights if that label is removed or was never present.
Rodriguez is a work-for-hire at the Star-Telegram, and his editor applied for copyright of the photo the day after it was taken. He has also sent several cease-and-desist letters to sellers using the image without permission.
“He got some eBay and Etsy sellers to take it down,” Rodriguez said. “I have found all sorts of uses — some were stylized, some were silhouettes. The funniest I saw was a onesie on Etsy. I have a toddler and I don’t know why you would put that on a onesie!”
Rodriguez says it’s been great to see the image well-received in baseball and sports photography circles. But it’s hard watching other people making a profit off something that won’t earn him any more money than his regular pay. His license with MLB says he can only use the images for editorial purposes, not commercial, so he couldn’t sell the image for tchotchkes even if he wanted to.
“Those DIY t-shirt places, you can upload an image and put in some text and you basically set a deadline or time limit to try to get people to buy the shirt and you have to sell a minimum of five or 10 for them to print it,” he said. “The one I kept seeing over and over had sold 3,000 or 4,000 at $22 a piece — doing the math on that was hard.”
Since the dawn of the digital age, there’s been an exponential explosion in the kind of infringements that happened to Rodriguez with his Odor-Bautista photo, says Tom Kennedy, executive director with ASMP in Washington, D.C. ASMP was founded to help improve the ability of professional photographers to make a living and have information at their disposal so they can be their most effective selves.
“The organization was founded to advocate for photographers’ rights in a variety of ways, with copyright being one of the elements,” Kennedy said. “With respect to copyright, it’s been about advocating for the strongest possible position for the photographers to assert copyright effectively and having their copyright respected.”
The legal system needs to be altered in some fundamental ways to better respond to photographer needs, he explained.
With regards to copyright infringement, there are only two remedies for photographers. One is to file a DMCA takedown notice and the other is to go into federal court to prosecute the merchant. The problem is, attorneys generally won’t take the case unless it has a value of $30,000 or more. Even though copyright is recognized the moment a photo is created, damages are less if the infringements happened before the photographer filed for it, Kennedy says. In a case such as Rodriguez’s, only a few of the infringements would hit that $30,000 mark. It’s a high bar.
That’s why ASMP is currently pushing for an additional way for photographers to pursue damages over copyright infringement.
“What we’re advocating now is a creation of a small claims tribunal as an alternative to federal court so members with lesser claims can still receive monetary damages,” Kennedy said. “We authored a white paper with a number of other creative groups advocating for creation of this tribunal and explaining the foundational elements of how this could work.”
On July 15, Rep. Hakeem Jeffries (D-NY) introduced legislation to make the small claims tribunal a reality for artists, photographers, movie directors, musicians, songwriters, authors and other creators to help protect their work from unauthorized reproduction.
The Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2016, H.R. 5757, which is co-sponsored by Republican Congressman Tom Marino (PA-10), would create a Copyright Claims Board (“CCB”) in order to provide a simple, quick and less expensive forum for copyright owners to enforce their intellectual property. The majority of the copyright owners that are affected are independent creators with small copyright infringement claims. While not replacing district court, the CCB provides an alternative forum for copyright owners to protect their work from infringement.
Participation in the CCB is voluntary, and respondents have the ability to opt out. The CCB will be housed within the U.S. Copyright Office, and its jurisdiction is limited to civil copyright cases with a cap of $30,000 in damages. A panel of three Copyright Claims Officers will be designated to adjudicate and settle copyright claims. The simplified proceedings do not require the parties to appear in-person and permit them to proceed pro se – i.e. without an attorney.
Another point of advocacy for ASMP is trying to get the U.S. Copyright Office to modernize its technology. Digital photographers take a magnitude more photos than film photographers generally did, and registering each and every photo needs to be more streamlined, Kennedy says.
“This is something where the House Judiciary Committee is the most involved and the chairman has held hearings over multi-year period looking at copyright law,” he said. “There’s no guarantee with Congress about anything, but we can, with other artists’ groups, put these ideas for change forward.”
Rodriguez says another area that needs addressing is the general public perception “if it’s on the Internet, it’s free and I can do whatever I want with it.” That takes education and public relations.
“To someone who doesn’t know, they just want to buy a t-shirt with a cool thing that happened with their team and they don’t know it’s not licensed—they assume it is,” he said. “It’s ignorance on the general public’s part.”