SMALL CLAIMS COMMENT: DOES SIZE MATTER: Advice for The Register of Copyrights on Artists & Sensitive People

26 Jul

© Carrie Devorah   Submitted: 4 11 2013 Portions may be attributed. May not be reproduced without permission   

Congress requested the U.S. Copyright Office undertake a study assessing if and how “the current legal system hinders or prevents copyright owners from pursuing copyright infringement claims that have a relatively small economic value (“small copyright claims”).” The premise falters here. There is no Small Claim to an artist, photographer or writer who infuses their soul into their creations, their Intellectual Property, that is then taken, plagiarized, stolen online or offline then sent forth en masse, without the Copyright Owners authorization, to recipients unknown.

To be clear, having learned that hearing rooms are packed with wonks and lobbyists pushing policy for paychecks, it is important for me to state my Comments reflect the individual ‘artist’ who seems to be voiceless in prior Copyright proceedings. For the here and now, I am not talking for corporations. I am talking for art school students at my Alma Mater Pratt Institute, students across town at the Corcoran, fashion hopefuls nurtured by the Greater Washington Fashion Incubator . Not the singer, not the film actor but  the people who craft words and images that archive culture. The perceived, lowly starving artist who sends in lots of sketches to sell one; the starving writer who pitches stories then sees their pitch appear under someone else’s byline; the photographer who gives the free photo he’s asked for thinking it’s a loss leader- a freebie that leads to business. I am the reality check to all the prior testimony that didn’t adress the citizen building a business at their kitchen table, staying up into the wee hours long after the kids go to sleep. Maybe one day, that singular citizen will become the corporation feeding a thousand.

I am talking for the talented “small” person, the brain food of American innovation. I am making it clear that decisions Congress makes after hearing policy pushed by wonks on salary, lobbyists on retainer, people pushing for grants with rants, impacts my peer group- the artist, a single mom raising children on her own or a homeless man who takes that ONE photo of, lets say a Congressman in a compromising clinch that TMZ is willing to pay big $$$$ lifting that homeless man off the street and off the dole.

This is big for Congress to understand. To the aforementioned people, there is no small economic value. Every dime counts when it comes to putting food on their family table and keeping their home lights on. Wifi is accessed for free by squatting outside McDonalds or Dunkin Donuts. Starbucks pulled their plug learning that cyber squatters, on a 1 cup or refillable free water diet, were hogging paying customer seats. No, Congress should NOT now legislate that Starbucks rescind their decision. Congress has to focus on ways IP owners will get paid for Unauthorized Use of their IP, understanding here is no compensation for being violated, stolen from, artists struggle to comprehend. Some recover from. Some never recover. Some give up.

So this topic isn’t about Small Claims. This is huge.

Every so often a firm willing to help artists pro-bono, reaches out like Bruce Springsteen did in that iconic commercial, pulling wide eyed Courtney Cox up from the audience of thousands, on to the stage beside him. These moments of pro-bono opportunity are few and far between. There aren’t enough attorneys eager to fight the battle for every IP owner’s needs posted to Legal List Serves like Washington Association Of Lawyers For The Arts . The fight can be time consuming and expensive. There weren’t enough of these Legal Angels before the Internet exponentially exploded Intellectual Property theft. Now? There are even less. The Solomonesque questions are (i) how much is the Unauthorized Use of Copyright worth and (ii) where does the ripped off artist take the thief to duke this out- Small Claims Court or Higher Court, noting, ultimately, everyone eventually answers to the Higher Authority in the Moral Court.  FPG Int’l v. Newsday, Inc. had the blush of being a Small Claims Court case with a big settlement. FPG’s standard license fee is $2,000.  Newsday payout to FPG $20,000.

The issue of Small Claims has been on the table in front of the Register of Copyrights without solution since, no less than, 2006.


There is an answer. It isn’t their livelihood that Congressmen and Senators are debating. It isn’t professions they necessarily ‘get’ or respect, less so in the age  of technology with Congressional interns or staffers with iPhones and iPads stepping in to the role of traditional media, blurried, mind you. The rampant rise of the Internet and Freedom To Insult Or Stalk For Gotcha Moments, isn’t the fault of the 2D IP community. Congress did this to themselves deciding ‘who should live and who should die’ in the worlds of print & ink, that is, by granting technological giants ways forward without realizing the cost- shall we say text messages and emails- Anthony Weinter, David Petraeus. Let’s be honest- the Internet has honed a new level of disrespect in what used to be time honored crafts. The Internet has created home spun journos-in-their-own-mind who viciously attack with profanity or re work photos into offensive mocking diatribes, photos often used without authorization of the Copyright Owner, without concern of impact on the very people who protect even this whacked out interpretation of Freedom of Speech, Members of Congress whose families are expected to absorb these attack hits with grace. Politicians have a hard time being able to filter good-real-credentialed-mediaites from bad-wannabe-determined-to-twist words or plant bugs in offices  . The 2D IP community whispers if this was Congress’s livelihood being strangled or the livelihood of a “whale” campaign backer, family member or other, or Beyonce , effecting IPO Small Claims courts for 2D IP owners, would have been resolved long before the Senate’s and House’s last Congressional break could be threatened.

2D IP, Intellectual Property, is in Congress’s face, daily.

On Capitol Hill, Senators and Congressmen are surrounded with statues decorating Statuary Hall​the-national-statuary-hall-collection , , historic Brumidi art on the walls and ceilings of the Capitol itself , the Senate Committee Room , friezes on the House side, artworks on the Senate side and the very words emblazoned in gold high above the House Speaker’s bench “IN GOD WE TRUST “ . They are all Intellectual Property. Yes, even the words “In God We Trust” are art, a font or typeface. Whether shapings of the words’ letter forms are protected by copyright law, isn’t quite clear as argued or written here.  Imagine that, cant even get a consensus on Four Words that guide our nation.  Is this how far America has tumbled, words that drive our Legislators are fallen from Grace, barely discernable in the Capitol’s PR photo seen here .

Politicians scurry back and forth so fast enroute to and from voting that so much of the artwork  in the Capitol buildings have become a blur, short of being backdrops for legislative photo ops and press conferences, when all these famous IP, Intellectual Property’s that should be part of Congress Intellectual Property conversation. Staffers tours to constituents should not only be discussing Faith and the Founding Fathers, but also share the Intellectual Property on these walls, inspires generations of Legislators and generations to become Legislators. The Architect of the Capitol, the Honorable Stephen T. Ayers, FAIA, LEED AP, recognizes he is the gatekeeper for the Capitol’s IP, Intellectual Property. The AOC’s webmaster posted to Architect’s website  the Guidelines for restricted use of Architect of the Capitol photographs. The Guidelines state, “Image Use – Images on the Architect of the Capitol Web site can be downloaded in high-resolution through the AOC Flickr page. These images are in the public domain and, unless otherwise noted, may be used without permission for educational, scholarly, or personal (i.e., nonpromotional, nonadvertising) purposes. When any of these images is used in print or electronic publications, the photographic credit line should read “Architect of the Capitol.” If an image requires additional use permission, a note to that effect appears on the relevant download page. These images may not be used in any way that would imply endorsement by the Architect of the Capitol or the United States Congress of a product, service, or point of view. Photographs from the records of the Architect of the Capitol may be used for scholarly or educational purposes; they are not made available for promotional or advertising purposes.”  And “The images and video by the Architect of the Capitol are in the public domain and, unless otherwise noted, may be used without permission for educational, scholarly, or personal (i.e.,   non-promotional, non-advertising) purposes….. A detail or cropped image may not be used in a publication unless (a) it is clearly identified as a detail or cropped version of the larger work and (b) the full image appears elsewhere in the publication….. When any image or video is used, the photographic credit line should read “Architect of the Capitol.” If an image or video requires additional use permission, a note to that effect appears on the relevant download page. These images and videos may not be used in any way that would imply endorsement by the Architect of the Capitol or the United States Congress of a product, service or point of view.”

Somewhere in Brooklyn is a turnip truck under a bridge waiting to be sold.

Back to the question, does size matter? Ask Congress. Where does Congress go to adress all the Unauthorized Uses of their Intellectual Property? SCOTUS? Federal? District? Small Claims…… The White House has their answer….        “In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, subscribers or account holders who are deemed to be repeat infringers…”

Everyday Brumidis bring  beauty to Congress’ otherwise challenging world. There are the artists who design gift items sold in Congressional gift shops; authors whose books tell histories about politicians campaigns cycle in and out of Congress some of whom may have even legislated over this policy in hearings. There are the journos recording bytes of what was said in pressers or on hot mics. There are the photographers who crawl in Hearing Room wells snapping photos that cycle long after the politician is gone home or to the Big Capitol in the Sky. One never really sees a Congressman’s staff touring visitors past their  winning students IP, Intellectual Property, artworks on display in the annual State Student Art Competition that graces the long walkway from Capitol to House​art_​competition . They should. These State Student Winners are future Intellectual Property constituents, artists, writers and photographers beneath the Congressional radar, who want to create with abandon their Intellectual Property, their IP. Let Congress tell them that making a living from their talent is a losing race in our rampant technologically Free Internet world.

It seems the President and Legislators respond to a “DO IT FOR THE KIDS” mantra. Do it for the kids. Create an affordable IPO Small Claims Court solution so these State Winning Youth can tell their IP thief, “Congress FINALLY passed this THOU SHALT NOT STEAL Small Claims Court/ mediation/ affordable forum law. Meet you in IPO Court!”

It has been almost eight years since 2006 

Granted, Rome wasn’t built in day but there are Small Claims Court models that have been effected in other parts of the world since. 2012, the Brits set up their IPO Small Claims Court system  With all else that America copies from Europe- boybands, Mr. Bean, Benny Hill, and the Beatles- why not copy this? The same technology that has exponentially massed online IP thefts is the GO-TO resource for conducting 24/7 global conversation feed Focus Groups. Go to Twitter, Facebook, Pinterest and Linkedin and ask for their input. With all these resources, how in Heavens name can Small Claims still be a stalled conversation before Congress? It beggars the mind.

You know, there is a basic tenet, in business, when an employee doesn’t perform- OUT. Cut their email accounts. Clear their rolodexes. Remove pertinent papers. Box their plant. Show them the door. Politics talent is to recycle politicians into Lobbyists who bring titles to a table, a political Show Horse of sorts, trotted out for name and gain, more often than substance. Sometimes, the “Former” has little more to offer other than punditing and postulating on themes he or she failed to accomplish in Congress. In art school, we put it differently, “Them’s that can DO, them’s that cant Teach.”The last thing the IP, Intellectual Property community needs is yet another retired opining voice out there. We need doers not visionaries. We need people who are plowhorse. They will put their noses to the grindstone and knock this concept out in weeks.

The answer to motivate resolution of this eight year plus Small Claims Court conversation is called a paycheck. While some IP creators are staff hence salaried with no ownership of IP created on the job, there are IP creators who are Independent aka Freelance. Independents /Freelancers gamble on their talents. While some work on fees, others are paid royalties based on performance of their Intellectual Property sales. An example of independent Royalty Paid Artists include Andy Warhol, Thomas Kincaid, Carrie Devorah  and Keith Haring    Intellectual Property creators and their licensing agents know that no sales of the creative’s Intellectual Property = (equals) no income, no living, at that, if Congress and the Register Of Copyrights worked under, would motivate them to “get the remedies done.”

Take a moment, click on the Keith Haring link. Click here   


Enlarge individual images in BING’s Gallery credited to Haring. Note, in the signature below the picture that the images come from different sources. Now, pull an image, any image from BING’s “Keith Haring” gallery on to your desktop. Pull another image. And another image. And another. You have now just successfully stolen Haring’s artworks, royalties from which fund AIDS research around the world. You are now liable to be sued. Serious. Without a signed license agreement, each one of those Keith Haring images in Bings Gallery is being used without Authorization. Each one of those images is a Small Claims Court/Mediation/Affordable Forum suit waiting to happen. So  should these secondary infringement IPO Small Claims suits brought about by BING, the direct infringer, be addressed and/or litigated one at a time? I have successfully illustrated to you how simple it is to be complicit in Stolen Property with Internet Search Engine BING’s Unauthorized Use of Copyrighted Images.

Simple as that.

So the problem Congress must evaluate just isn’t what is happening on the Sue-r end but also what is happening on the Sue-ee end. Hogwash? No. Congress facilitated the Search Engines thefts of other people’s properties. Congress must adress this to mitigate the ease of Intellectual Property theft along with providing an IPO Small Claims Court forum. Maybe employ the White House strategy… TERMINATE  ,  “terminating, in appropriate circumstances and at our sole discretion, subscribers or account holders who are deemed to be repeat infringers…”

There is a rub with BING’s Unauthorized Use of Warhol, Haring and Kinkade that will be adressed later, after posing the age old question “Does Size matter?” No.  Ask a woman. Theft is theft whether it’s one piece or ten. She doesn’t care if it was a small diamond of a big diamond, a diamond is a diamond. A single image can be a diamond in the rough, a golden ticket to retirement as illustrated with

the homeless man and compromising photo example. At hand, here, is where to adjudicate a claim lawyers don’t see value in representing and how to collect a Court award for Intellectual Property stolen in a Virtual World. Congress isn’t yet adjudicating in  Bitcoins. Bitcoins is a virtual, alternative currency.   Try collecting dollars from a Virtual company, an Anonymous Avatar on line or a shell corporation. Same diff’.

And then there is that reality Congress doesn’t factor in to legislation, the “what happens when….”

“Small” is in the eyes of an attorney who, measuring effort vs return, turns a legitimate claim down because he or she will lose money taking the case. Lawyers are business people with overhead, dependents and law school debt that governs their decision evaluation of cases they take on.  Some attorneys are empathetic Legal Angels who take Pro-Bono work seriously or as loss leaders into a new community of potential. Denial of representation does not mean there isn’t merit to an IP owner’s issue. But, many Intellectual Property creators are Left Brained People who will take denial of representation personally and hard, stressing more over finding an attorney under the Sword of Democles statute of limitations they must be mindful of.

A responsible lawyer communicates to a potential client- pro bono or paying- the time invested of your life into pursuing this matter is time you can move forward from, into time spent creating more work. The lawyer coaches ‘is it really money that you want or is it an apology or to make a difference or if the conversation could be brokered (seeing they already like your work) is there interest in exploring a working relationship. And then there is the real reality- sue them and there is the risk they will counter sue escalating this matter into a higher court dragging things out over time. Know that while Small Claims Courts cap out at “X” amount depending on the jurisdiction, there is nothing barring the Defendant from punting the matter up into Municipal Court where greater costs are incurred under a different set of rules with higher punitives and costs.’ Put THAT disclaimer before an owner of an Abused Copyright, watch the thought process change. The Copyright owner might want a face to face meeting and an apology and the ability to express their feelings (yes, artists enter a room their innocence on their face and their heart on their shirtsleeve.)

This is called Mediation.

Mediation excels ONLY when non-lawyers facilitate the meeting, in that lawyers, got to love them, think law first and resolution second or as a gateway to data gathering that lawyers are told not to do but do anyways. Ask a lawyer a question, they cite case law. Ask a Mediator/Artist the same question, they applaud participation, huggers by Art Heart. The Disciple of Mediation is Beverly Hill’s Burton Levy who commands mediations, backyard, poolside with lemonade and cookies (rumored), point being Levy brings people together in an environment where there is NOTHING IN BETWEEN THEM, no table separating them, a relaxed environment people ‘chill’ into and open up when they talk. Levy’s success rate, is somewhere up there in the 200% rate, an idea to introduce to Art School and Law School students graduating, as author Stephen Harper describes, “with Mortgages and no house.” Include Mediation Clinics in a comfortable IP forum- an art college, a gallery, ANYWHERE but in a court setting which is, lets be real, is intimidating and adversarial from the Get Go. Keep it “chill” the Burton Levy way- no tables in between people- coffee tables to the side a la Starbucks style. No joking. These IPO Small Claims Mediation Labs can be underwritten by corporate sponsors. Check out Googles campus. Think Resolution. Think Triage…..

“How Copyright owners have handled small Copyright Claims and the obstacles they have encountered” is a broad stroke of a brush, so to speak. There is a  Copyright holder who launched a company with a mouse, not a computer mouse, at that. This mouse was called Mortimer. There’s Jim Davis who sketched Garfield on a napkin, in pencil, as legend goes. Then there’s the Copyright holder who exhibited Turtleneck Kids at a local artisan’s show. A marketing genius, perusing craft fairs for inspiration, transformed the doll into a mega hit garden variety concept. The small time Turtleneck Kids Copyright holder wasn’t as adept with IP protection as was the Mouse’s corporate legal teams issuing ‘cease and desists’ when the Mouse’s copyright infraction was noticed. Don’t under estimate the Mouse. Mortimer aka Mickey became a behemoth. How? By protecting Walt’s Intellectual Property ownership from Unauthorized Use. The Turtleneck Kid granny did not.

Copyright gives the owner the right to decide who gets to use their work, who doesn’t, who profits from it and how, and other rights decision, too. Copyright is Intellectual Property – patents, trademarks, trade secrets, authors rights, related rights, moral rights, utility model and geographical indications, including Sui Generis, Latin for “of its own kind/genus”, “unique in its characteristics.” “The right to copy”, copyright, is a legal concept giving the creator of an original work exclusive rights to their IP for a limited time which on its nose is wrong.

What gives anyone the right to tell an artist they owned their IP too long, so now other people should have the right to own it too. Does that mean that family heirlooms are put curbside for others to take, lifetime +70? Does that mean that the Thomas Jefferson’s Koran Former Speaker of the House Nancy Pelosi used to swear Keith Ellison into Congress with,2933,233983,00.html has been in the Library of Congress too long, meaning that if someone walked out the door with it, they would not be guilty of theft? After all the LOC, had the Koran, too long. How about the liberal lawyer pushing for less copyright ownership time who didn’t like being told there was no argument with her theory of less copyright ownership and next month, will be her month for not keeping her salary that will go to someone else while she keeps working? She didn’t like that argument back. Guessing that if told,  her son in her profile? He’s, what, 10? She’s had him too long, so next week, someone who doesn’t have a kid will come by to pick him up. Why not? If an IP owner can be told they lose their IP after a Congressionally determined statute, then what flies…. Why not lose kids and salaries, except that it dumb and that is the point. Confiscating people’s IP’s is dumb, too.

Not every artist becomes a Mickey or Garfield. Many dream of becoming licensing stars. Look at the Sunday paper comics to see how many artists put their heart into weekly columns. Few become Snoopy or Charlie Brown. Few youtube artists become breakout Biebers. The reality most can hope for is to pay their bills from doing what they love – write, draw, photograph- and that some person doesn’t make a living from Unauthorized Use of their IP. All well and good until reality hits that success breeds imitation, in the form of copycats and thieves. A “Colonel Sanders” protects rights to his Secret Spices with a legal team. A hope-to-be Colonel Sanders most often cannot, wanting the option of representing themselves in small claims court. Few remember, or even know, the first small claims court was created in Cleveland in 1913, court designed for people to manage their dispute themselves, long before the Internet threw a wrench in protecting IP from thieves.

The process isn’t complicated. Or is it?

An action is initiated in small claims court, when a plaintiff fills out a form they get  from the local court administrator, filling in, correctly, the names and addresses of all defendants, describing the dispute then stating the amount of money involved. A filing fee is paid. A copy of the plaintiff’s statement is properly served on the defendant so the action won’t be dismissed, either by mailing the summons to the defendant or having it served by a deputy sheriff or process server as required. If the defendant’s a corporation, the plaintiff checks with the office of the Secretary of State or corporate registration department for the proper address. A corporation must register the name and address where it can be served. Generally there’s no jury. The judge or judicial officer makes a decision at the end of the presentation of evidence. If successful? The plaintiff can recover money awarded and the filing fee from the defendant.  The losing party can file an appeal. 

End of story? No. Beginning of an real problem in an Internet World.

Where does one serve an online violator of Intellectual Property? How does one serve a person or entity without a physical adress or an adress within the discernable jurisdiction? Where does one send the Sheriff? To France, if it is yelster/ getting served? Or Austria? Another of yelster’s named ‘residences.’ And is it even who gets served. The website divulges that  “123people is a product of the 123people Internetservices GmbH. 123people Internetservices GmbH was founded in 2007 by European IT incubator i5invest with initial funding from Austrian VC Gamma Capital Partners.  The company is today based in Vienna, Austria. Since March 2010, 123people is part of the French Solocal Group. At the beginning of 2012 the 123people Internetservices GmbH renamed itself into yelster digital gmbh.”

Where does The Warhol Museum serve Google? Or Bing? Or Facebook? for multiple violations of Andy’s iconic art. Where does the Keith Haring Foundation serve for the multiple violations against them, stolen money intended to fight AIDs. Going Google’s route to report Violations is an effort in futility  Wonks theory they push to make into law, sounds good until put into practice. The fact is IPO Small Claims Courts, even mediation and Unauthorized Use of 2D  in a digital world are just not compatible bedfellows. Technology isn’t simple to begin with, less so in a world pushing for Internet Freedom pushing the agenda of  ‘whats yours is mine and I owe you nothing.’

There is a bright light.

The sinking economy has created a “potential alternative to the current legal system that could better accommodate such claims” that can be ‘tweaked’ to creatively fill this need, doing so with potential impact on career and commerce- the marriage of law and art. The concept isn’t new.   

Touro College Law School took students to Ward 9, in Katrina’s aftermath, to facilitate the backed up legal process moving forward. Students got College Credit. Residents got legal help. The law firm of Drinkle Biddle and Reath LLP works nationwide with student groups at various law schools to provide mentoring and financial assistance.”  The only thing DBR is missing is an insightful artist who designs worlds perfect for betterment of the IP creaive’s peer community. It isn’t a stretch of the imagination to effect the same marriage here- Law School Credit + Small Claims Court IPO, developing new scholastic expertise trainings for both Law and the Arts – IPO Law Facilitation studies for Left Brain IPO creators with Right Brain Function and for Right Brain Law Students in touch with their inner Left Brain self. Set this in an IPO Mediation Lab setting as described earlier….. a new education industry is born, make that two. Google “law school death watch” to find out what law schools are at risk for closing down.

Art schools are beginning to teach ‘a business class’ of sorts mitigating potential IPO litigations. Granted, there is a responsibility for the artist to take steps on their own. Most artists need prodding and coaching with business. Schools are supposed to prod. Congress and the Register of Copyrights can prod schools to come together- earning law schools students Class Credit while building a resume, building esteem and learning more about other worlds they might or might not intersect with but learn they love- architecture, fashion, multi media, etc. worlds that cross into many of the Crowdsourcing alternatives to funding that are gangbusters in these days and times. Law schools already have clinics for community issues like housing and immigration. Clinics addressing Intellectual Property is a viable consideration, too.

Being real, creatives are people who prefer communes to bottom lines. There is potential here to bring the two together, to build an industry that may be more meditative than litigious, focused on IP, ID and commerce. Ask an art school student the one class they wish they got before graduating into the real world, they answer ‘the business of the business.’ Ask a law school student that question, their answer is the same. Google “Arts Schools” and “failures to teach business.” Graduated lawyers and artists post to online message board, school did not prepare them for the real world.  NPR’s Diane Rehm interviewed Steven Harper, author of “The Lawyer Bubble.” Harper describes, the “mortgage but no house” debt excepting that lawyers ‘mortgages without a house’ is larger than most artists ‘mortgages without a house’ except when one considers that  an Ivy league law school student steps into the working world with a potential 6 figure salary while the artist steps out into the real world where “artists are a dime a dozen.” There is no Small Claims, remember, just small beginnings. Along the line of Law School Clinics where students work alongside lawyers, school may be a place to begin here, too, brokering the field of manageable IPO Small Claims Court concept. Even before that, guidelines must be drafted to qualify what constitutes an IPO Small Claims Court Case versus what belongs in a higher court.

Art schools are beginning to teach ‘a business class’ of sorts mitigating potential IPO litigations. Granted, there is a responsibility for the artist to take steps on their own. Most artists need prodding and coaching with business. Schools are supposed to prod. Congress and the Register of Copyrights can prod schools to come together- earning law schools students Class Credit while building a resume, building esteem and learning more about other worlds they might or might not intersect with but learn they love- architecture, fashion, multi media, etc. worlds that cross into many of the Crowdsourcing alternatives to funding that are gangbusters in these days and times. Law schools already have clinics for community issues like housing and immigration. Clinics addressing Intellectual Property is a viable consideration, too.


Being real, creatives are people who prefer communes to bottom lines. There is potential here to bring the two together, to build an industry that may be more meditative than litigious, focused on IP, ID and commerce. Ask an art school student the one class they wish they got before graduating into the real world, they answer ‘the business of the business.’ Ask a law school student that question, their answer is the same. Google “Arts Schools” and “failures to teach business.” Graduated lawyers and artists post to online message board, school did not prepare them for the real world.  NPR’s Diane Rehm interviewed Steven Harper, author of “The Lawyer Bubble.” Harper describes, the “mortgage but no house” debt excepting that lawyers ‘mortgages without a house’ is larger than most artists ‘mortgages without a house’ except when one considers that  an Ivy league law school student steps into the working world with a potential 6 figure salary while the artist steps out into the real world where “artists are a dime a dozen.” There is no Small Claims, remember, just small beginnings. Along the line of Law School Clinics where students work alongside lawyers, school may be a place to begin here, too, brokering the field of manageable IPO Small Claims Court concept. Even before that, guidelines must be drafted to qualify what constitutes an IPO Small Claims Court Case versus what belongs in a higher court.

Anonymous Comments posted to  reflect the merit of marrying Arts & a skill in the first years of  Law School and Arts Colleges to mitigate the “Mortgage with no house” debt Harper talked about to NPR-                                                                            [A ] “I do not plan to go to grad school. The reason is simply because I find that I have learned more on my job in the last seven months than what I have learned in all my five years of education. I find that work is a bit different from school — being able to do well in projects does not directly translate into success at work. The rules are different.”              [B ] “I found most of the courses that I have taken in the past to be very theoretical and not very realistic. My advice is to learn more from companies and take on projects in the industry that you want to get into.”                                                                                           [C ] “I have had all the training, but cannot find a position in which I can use that knowledge.”                                                                                                                                   [ D ] “You learn 10 percent at college and 90 percent in the work force.”                               [ E ] “My education has no correlation to the work I am performing. I wish I had majored in something that is marketable and could enable me to find work that I enjoy.”                  [ F ] “College is great times but not anywhere even close to the real world.”

A recent online forum on an Art School Graduate page asked how many students were working in their major. Not many. The average was, a few decades back, that a projected 2% of a class would continue to make a living in their career of choice. The complaint being repeated decades after I graduated and went into business of Arts, still is schools did not teach the business of the business.

Schools do webinars, in these days of the internet but nothing beats a sit down class for Creative People on how to avoid a problem that might lead you into a court- confidentiality agreements, receipts for leaving items for review, confirming meetings and follow up communiqués on what was discussed and proposed. These tools won’t eliminate the need for small claims courts for some. These tools will mitigate the occurrences of Copyright holders going to court on easily  addressed issues. Easily and addressed are an oxymoron when it comes to debating copyrights. Copyrights are ‘defined’ on 8 points- not by someone close to the art but by John Doe Public who should at a glance see what is ‘same/same’ or different, one conversation on copyright claims.

The premise that the “Copyright Act (the “Act”), 17 U.S.C. 101 et seq., protects a wide variety of works of authorship, ranging from individual articles or photographs that may not have a high commercial value to motion pictures worth hundreds of millions of dollars in the marketplace” is flawed in that, as at birth, all ideas start like babies, naked to the world, with no guarantee that the idea could not become a breakout star, as did The Cabbage Patch Kids or even Kim K who became a public name after her home made movie shot her to stardom after Mom-ager Kris Jenner jumped on top the media brouha. There is no predicting what might become big, through a ‘lightning strike’ or slam dunk marketing or even hard work. There was no predicting Maria Pallante would one day become Register of Copyrights or that any of the legislators would become what they did. All ideas are born equal. No guarantee ever that coal wont become a diamond or a quick sketch wont become a goldmine to its creator. So what is the process to determine an IP’s value to decide what venue to adjudicate in? That answer might come to kishkas, guts. Sometimes just, “ I am sorry.”

It has been interesting, as of late, observing wonks, lobbyists even lawyers addressing IP. Congressmen and Senators, breeds on to themselves, are saddled interpreting outreach to a community fronted with spokespeople. Here and now, there is a difference between IP creators and others.

Artists, if they are lucky to work within the discipline they trained in, are entrepreneurs of a unique sort whose minds never stop working. Intellectual Property creators live a reality the every-day-Joe-don’t-know. 9-5r’s, the nickname for people who go to a job, 5 days a week, 4 weeks a month and 12 months a year, do just that- same thing, different day. Artists are not one-trick, ponies. Know an artist? If they aren’t off on Cloud 9 when being spoken to, usually, something has caught their designing mind or distracted their attention resulting in a goldmine of potential- sketching thumbnails, making notations in book margins, magazine, pages, jacket flaps. Some have even been known to draw/write on their hand as not to lose thought. Who is to say anyone of those jottings is not potentially valuable to the artist OR to someone who sees the idea, then “borrows” it without compensating the Copyright Image creator. Remember Jim Davis sketched his first Garfield on a napkin.

IP creators are best compared to a woman with shoes in her closet. Never met a woman with just one pair. Never met an IP creator with just one idea. A creative person has ten solutions for every challenge put to them. And every idea out there is a potential IP stolen. Let’s say, the Intellectual Property creator submitted greeting card sketches to a company, through the United States Postal Service Certified Mail/ Return Receipt Requested. AND let’s say the AD, the art director, said no to all or yes to some sketches. AND let’s say the AD, left the company the IP owner submitted their concepts too. The Art Director takes the IP owners sketches with them to the AD’s new job or their own Startup. Let’s say the Copyright creator begins seeing their designs appearing, not in one place but in multiple places. In stores. On websites. On T-shirts, … and sues each one of the violators in IPO Small Claims Court or elsewhere for Unauthorized Use.

Courts were unable to process the amount of IPO claims pre-Internet. The courts are unable to process the amount of claims escalating post internet, in a viral world. Unauthorized Users have an air of entitlement. People are losing sense of boundaries. With hot issues pushing buttons on gun control, there is the growing concern of “psychological homelessness” trickle down incurred from technology has dumbed down people’s skills for resolution.

Sure a wronged person can sue BUT WHAT HAPPENS WHEN there are multiple legitimate wrongs, the person gets labeled in a bad way. How can a prolific IP owner, the Intellectual Property owner, protect their name while defending their Copyrights, each and every time another one of their idea babies.

Intellectual Property’s, is stolen. What happens? They are labeled. Litigious.

Bing Dictionary says LITIGIOUS means (1) inclined to go to law; tending or wanting to take legal action (2) of legal action: relating to litigation (3) quarrelsome: inclined to quarrel or argue. The definition on is (1) of or pertaining to litigation . (2) excessively or readily inclined to litigate: a litigious person. (3) inclined to dispute or disagree; argumentative . And Merriam Webster writes (1) a: disputatious, contentious. b: prone to engage in lawsuits . (2) subject to litigation. (3) of, relating to, or marked by litigation.

So as you can see, IPO Small Claims Court for a person who designs prolifically and is distributed globally, doesn’t work. IPO Small Claims Court for prolific IP creators, is a disaster waiting to happen, unless, the Copyright holder is Disney defending Donald Duck. Disney would be considered good businessmen defending their Proprietary product. But if the IPO plaintiff is John Doe from up the block, the IPO plaintiff is saddled with a stigma, that defines them as Litigious.  That they were the ones stolen from is ignored.

The potential price of a prolific IPO creator’s legal right for redress is slander. Libel travels with lightning speed on the Internet. Some people have the constitution to stand up to unkind labels. Some don’t. Reddit founder Aron Swartz committed suicide. .  IPO Small Claims Court works if Congress writes into the law for IPO Small Claims Court, that being labeled “litigious” is wrong and punishable or, if done by  Defendants’ attorney or Defendant on line, it is “bullying,”, since ‘slander’ and ‘libel’ seem to have fallen by the wayside when someone is being dissed, online.

The examples of Warhol, Haring and Kincade keep focus on the claims of Copyright Creators against Search Engines occupied with gathering, storing and disseminating IP, Intellectual Property, without authorization. If four Search Engines mount, without the Copyright Owner’s Authorization 4000+ copyrighted images, no less than 16000 Unauthorized Uses of the Copyrighted Image, which are then stripped of their Metadata by data bots hence converted into Orphan Works, which makes the Copyright Owner a cottage industry for a lawyer, legal team or, as stated in a video adress by Stavros Lambrinidis, able to pursue laws in existence on the ground

Athens born attorney Stavros Lambrinidis, the EUSR, EU Special Representative For Human Rights, addressed TECH@STATE, by video link, March 2013. Lambrinidis, the former Minister of Foreign Affairs of Greece and a former Vice-President of the European Parliament, took office as EUSR, on September 1 2012. Stavros, Vice-President of the Parliament’s Civil Liberties, Justice and Home Affairs Committee and, at one time, Chairman of the Committee for Human Rights in the Bar Association of Washington, DC, sees his role is “to enhance the effectiveness and visibility of EU human rights policy.” Lambrinidis said the “Internet opens the door for everyone to access private information in commerce and for criminals” reinforcing to “Deal with cyberspace as regular space- utilize the same laws in place as in cyberspace.” Lambrinidis made his point stating that on the internet ‘anyone can open private information… they should not be allowed to.’ IP in private places is being accessed by strangers for commerce.

This year is 2013.

The  House of Representatives’ Subcommittee on Courts, the Internet, and Intellectual Property held a hearing in March 2006 to learn more about the problems faced by small copyright claimants (the “Small Claims Hearing”). It doesn’t take being a rocket scientist to realize SEVEN YEARS LATER, nothing has changed except for technology and the rapid fire theft of IP. The Internet, still seems a Wild West Without Legislation. Lambrinidis equivocation of law guidance on the Internet to to law guidance on the Terra Firma is the most sane thing a legislator has said in a long time.

The Copyright Office  is doing too much “studying” and not enough “doing” if after all this time, definitive decisions have not been enacted. That, October 11, 2011, Chairman Lamar Smith nobly requested the Copyright Office to “undertake a study to assess: (1) The extent to which authors and other copyright owners are effectively prevented from seeking relief from infringements due to constraints in the current system; and (2) furnish specific recommendations, as appropriate, for changes in administrative, regulatory and statutory authority that will improve the adjudication of small copyright claims and thereby enable all copyright owners to more fully realize the promise of exclusive rights enshrined in our Constitution.” Chairman Smith’s assignment was not as expeditious as had he assigned staff to join as many LINKEDIN groups as possible to get him answers needed. FAST.

Here is a quick noodling on line produced for a potential Focus Group Community:

A quick search of “Intellectual Property” within LINKEDIN provided a result of 350,104 possible respondents on this issue; a search of “Artists” provided a result of 406,126; “photographer” provided a result of 564,260; “writer” provided a result of 1,209,539 possible respondents. For the fun of it “litigious” produced a result of 1,930 possible participants. Smith would then have a simple, bullet pointed questionnaire sent to the defined ‘sample’ Community with a ‘defined’ window of time within which to gather responses- weeks, possibly 3, maximum probably 6. A simultaneous similar fact finding questionnaire would be sent to colleges- “art school” provided a result of 1,094,158; “photography” provided 728,779; “writing school” provided 1,769,312; and “law school” provided 1,485,367. For the fun of it, “business school” provided 6,935,435. LINKEDIN provides an inexpensive route for Congress to go for answers. The numbers are out there for a consensus facilitating rapidly moving forward on Copyright and Commerce, the Courts and Business BUT if not done under the umbrella of the Registrar of Copyrights. Online search for the above data- 6 minutes. Copyright Office on the job? Seven years, almost eight years. and created business models around ID theft- use of a person’s image and personal data bundled on to their sites. A perfect example is . The bundled images include images that are copyrighted. How does one fight 123people’s “awesome” team, and where? 123people’s “awesome team” including Gilles Clouet des Perusches (CEO) who “led [Kodak’s] European Mobile and Internet Division, Martin Stemeseder (CTO) in charge of Verisigns Chief Architect Digital Content and Media, Julien Auger-Ottavi (CFO) who started his career as Internet Strategy Consultant at Pages-Jaunes, and Alexandra Senoner (PIO) who was a consultant at a PR firm in Switzerland focusing on the Austrian market having worked for the Austrian parliament for over five years. Only in the course of the TEAM BRAG PAGE does one learn the is ‘yelster digital’ and possibly based in Austria, quite an issue for a person whose ID’s been stolen and bundled for resale without permission by “Discover. Monitor. Protect-” Ironically, advertises “Remove Unwanted Web Content” stating “With advanced services like Webcleaner, its now possible to have personal content deleted from external sources. The Social Network Monitor is a powerful tool that can be used to protect not only your own Facebook profile but also those of your family?’

Is an IPO Small Claims Court in America, a venue for judicial action against No. The website says “123people is currently available across 12 countries in eight languages. It also provides people search capabilities on mobiles with an app for iphones and Android smartphones: USA, Canada, UK, Austria, Germany, Switzerland, Italy, Spain, Netherlands, France, Sweden and Poland,” a locale a little too far for a Sheriff from Texas to travel to serve yelster’s team, unable to collect a winning judgement from. The site states “123people is a service provided by yelster digital gmbh. The Austrian company has been part of the French Paiges Jaunes Group since March 2010.” Yelster digital gmbh, based in Vienna Austria, under the jurisdiction of the Commercial Court Vienna FN298562m, is a member of the Austrian Economic Chamber, Economic Chamber of Vienna, under the trade Authority of the District Office of the 6th District Simply read, our personal and proprietary ID has been conscripted by a foreign national untouchable off shore. site states it is a “free real time people search tool that looks into nearly every corner of the web” using their “proprietary search algorithm” to find “comprehensive and centralized person related information consisting of public records, phone numbers, addresses, images, videos and email addresses.” “Search Facebook and other social networking sites like mySpace, Linkedin, Xing, Wikipedia profiles and much more. All of this rich media profile content  is pulled from an extensive list of international as well as regional relevant sources, all to enable you to find people in real time. Find friends and business contacts now.” registered their trademark in the US Patent and Trademark Office. should be attachable in Virginia. Serve them  at the USPTO, in the least, since the USPTO “sanctioned” their business model with a patent.

It is worrisome that 123people’s TOS, Terms of Service, says “Yelster reserves the right to make modifications to these Terms and Conditions at any time and without notice to users.” There is a problem. Most people who personal data is being marketed by yelster are not users of the site, rather they are being used. Period. yelster’s “Service” states “may include advertisements or links to third party websites.” Yelster is trafficking people, plain and simple, of the 2D kind, albeit, but all those people  being sold are flesh and blood. Yelster is a foreign company, crossing international borders, telling people what it is and is “not a ‘consumer reporting agency’” and what it does, and doesn’t do, not providing a “consumer report” giving its site an air of legitimacy by mentioning the FCRA, Fair Credit Reporting Act, and FACT, Fair and Accurate Credit Transactions, advising people “under federal law, you have the right to receive a free copy of your credit report once every 12 months from each of the three nationwide consumer reporting companies: Equiax, Experian and Transunion. To request your credit report, visit” and directs people to read more about the FCRA on the Federal Trade Commission websites:

Yelster, an online search service for businesses plus, launched 123pages in France, January 2012. Sui Generis includes databases in France. Remember way back near the beginning? Sui Generis, “unique in its characteristics,” Intellectual Property? Copyright? Moral rights. Congress can facilitate Americans ability to pursue Identity Theft By Internet, in the case of yelster, with France, and to extend Human Trafficking to include online Identity theft and bundling, for sale or otherwise. No more of this ‘throw it up on the Internet, then take it down when found out.’ Poppycock. Provide injured persons the right to take, this too, to IPO Small Claims Court. Block the filing of future patents/trademarks/copyrights by serial offenders. Easy enough to gather that data. Remember Google? The big bad Voodoo Daddy who holds everyone’s private data? Grin….. fork it over when algorithms show serial stealers. Privacy? Sure its an issue, Door One or Door Two, the Lady or the Tiger….

The 1984, Tennessee Protection of Personal Rights Statute, gives a person and their heirs the rights to the famous person’s name, photograph and likeness, allowing the family to protect the celebrity’s images and to profit from the celebrity’s image, too. The Internet is a petrie dish for Instant Celebrity and Everyday People. What makes a celebrity different than Jane and John Doe whose image is conscripted by sites like and The question on the table, might be, does youtube celebrity and a million hits qualify for protection under the Celebrities Rights Act, California Civil Code Section 3344, for the publicity rights of living persons, and Civil Code section 3344.1, or not. An every day person on Facebook or may just find themselves starring in a movie they did not tryout for. LINKEDIN is circulating, in 2013,  “Friend Requests” for Andrew Breitbart. Breitbart died tragically in 2012. If LINKEDIN is using Breitbart to solicit fake “I know him” responses or as part of an algorithm, then isn’t LINKEDIN liable to Breitbart’s estate in that Breitbart was

“any natural person whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death”.  Dead celebrities may be used to open up consumer and commercial wallets but what about 12 year old Susie, her photo lifted from an online page, then manipulated to look as if she is appearing in a porn flick or as a baby in an online trading commercial spoof. Then what? IPO Small Claims Court? Or what? Commercial value used to have a different meaning before the Internet. Now, with cookies and online tracking of person’s habits that is being done, everything on the Internet has value to someone. Which IPO Small Claims court zip code would a viral video online sensation queen go for legal redress if her 15 minutes of fame was uploaded in the backseat of Dad’s car traveling between 90210 and 20002?

Conversely, what about celebrity look-a-likes profiting because of a twist-of-face, looking like someone notorious. Luis Ortiz is the dopplanger for President Barack Obama excepting Ortiz’s mole is on the other side of the nose. Imitation isn’t always the best form of flattery. Where would Mr Ortiz sue Mr. Obama for altering his life, just kidding, but not. How is this that much different than giving the impression, yelster is a decision a person made to participate in rather than having to invest time to “remove!”

The law does bifurcate defining Celebrity when it comes to uber stars like Kim K and everyday people seeking to stop Internet sales of their image, identity, and IP bundled by entities like Laws are on the books that when a celebrity is dead, their image is protected, yet search engines like BING are getting away with IT. Is the question when does it become Identity Theft or is the acknowledgement, this is Identity Theft, akin to IP and Commerce theft. Is this an IPO Small Court Claims matter or something cops get called in on. Identity theft statutes vary by state yet impacts people in every state. The types of information protected from misuse by identity theft statutes includes  Name, Date of birth, Passwords, Parent’s legal surname prior to marriage, among others. Details like passwords, parents legal surname prior to marriage are bundled on to these sites. Unauthorized Use of Warhol, Haring and Kinkade, online beggaring the question, does Congress ever look back at what it did before it worries about how to move forward?

Congress facilitated Search Engines without all “i’s” dotted and “t’s” crossed when it came to Unauthorized Use of IP and ID, online. What is missing is catching Congress up to speed, defining Small Claims in an online IP interconnected world.

The methodology of a homeless man moving his two huge rollie bags at Farragut Park the other day inspired wondering how this man, logical and analytical with a goal in mind, was outside of Congress while Legislators are in. The man had his “stuff.” The homeless man was set on moving his “stuff” forward, making sure it would not get stolen. A 3rd bag on his back, the man rolled one bag half way, leaving his second bag behind. He went back to Bag 1 then rolled it up beside Bag 2. Then he moved Bag 2 up the block some more, over and over to he got where he was going. Why cant Congress learn from this man’s example. IP Bag 1, Unauthorized Use of ID is already on the books, addressed under California and other Civil Codes, addressing Dead Celebrities. Move IP ID Bag 2, everyday persons ID being used online without authorization and move IP ID Bag 2 to where IP ID Bag 1 is.  Celebrity isn’t an exclusive Club anymore. What is the real difference between a Dead Celebrity and a youtube sensation waiting to happen or a Facebook Avatar used to build content on a Search Engine? The difference is a corporate business loss leader a corporate entity with a fat bottom line can afford to make that a lowly starving Intellectual Property owner moonlighting at the neighborhood Java Joint.. Good Pr with the fan base community. Let the fans loose. The dollars will come. In the meantime, the artist is scraping together nickels from tips.

Technology is complicating ID matters in that the dead are being brought back to life by technicians skilled in digital imagery of making dead actors interact with live actors, hold and pitch product. Coke had Elton John canoodle with Jimmy Cagney. Groucho Marx had a great time with Paula Abdul. Elvis boogied for Pizza Hut- all licensed by heirs or licensors of the celebrities post-life image. Natalie Cole dueted with her dead dad Nat. Point being shared here is the technology of image synthesis, image created from data input into the computer, and photogrammetry, computer image matching to a model, is that fantastic that soon enough it will be near impossible to tell the living apart from the dead. Dead celebrities can work the rest of their life. And then some. Fred Astaire’s widow licensed the hoofer out to Dirt Devil. She was paid. Astaire’s widow explained her late husband liked to dance with unusual items in unusual ways. Once can only wonder, now that Hoover bought the FBI building, will there be a Dancing With the Stars on the walls of downtown DC. In a IP manipulating world, what is to prevent video of Jimmy Smits dipping SCOTUS Sotomayor on a dance floor into a video of the Justice being dipped by the pedophile next door. Or the infamous magazine cover of the 4 year old standing on a chair nursing at his mom’s teat to be manipulated into the viral internet forward of Michael Bloomberg nursing from Barack Obama. Oh wait, that was done. So, who does the IP  owner sue and where does the IP owner file suit, if the image was scrubbed before going viral in social networks. Computer industry technots say the line in the sand is when an image cannot be tracked back to the original image. In the case of Fairey v AP, Sheperd Fairey outed himself in an interview. Busted.

Down the road prediction of Identity, ID, being used without authorization, is a real concern for ‘Face-Lifts,’ not of the traditional kind of nips and tucks, but the lifting of a person’s image from the Internet and making a stranger look just like them. Celebrities are used to having their features and fashions coveted by fans who go to all lengths to be ‘like them.’ The security fear is ID THEFT where a persons photos removed from their page, by sites like yelster or Search Engines, without authorization, where it is then made available to more people who use the IP without permission which can, with the invasiveness of Technology into where people are through GPS in their phones, can result in the person being stalked or access to secure sites like the White House or into a car waiting for a Congressman.  While this isn’t the concern for Jane and John Doe, being impersonated, it is a concern for lawmakers. Remember Luis Ortiz? He does well as Obama until people get close to Luis or Luis speaks….. and spokeo are selling people. Selling a person is trafficking. Should the definition of human trafficking be expanded to include using and/or selling a person’s life/data without permission. How does one pursue Trafficking in an IPO Small Claims court? Possibly by putting the Onus on the search engines, the Behemoths behind all this clatter that are Ground Zero for IP and ID and commerce that must be contained if laws on the books are to be administered as design and as orchestrated under the Ten Commandments. DON’T. NO. HANDS OFF, coupled with requiring Search Engines to develop an Alert System warning people when their site has been compromised and by whom, giving the person real time within which to adress their IP, ID and Commerce thefts. A model of sorts already exists in Whenu, a company that produces“contextualized” marketing software. Whenu’s software monitors an Internet user’s browsing habits, and display customized advertising content in “pop up” windows. Whenu was sued by Wells Fargo, a large bank based in San Francisco, a constituent of former Speaker of the House Nancy Pelosi, Wells Fargo & Co. v., Inc. (293 F.Supp.2d 734). Wells Fargo claimed Whenu’s pop-ups “framed” Wells Fargo’s own Web site. Whenu’s pop-ups often advertised for competing banks.

Remember “Faceoff.” John Travolta, Nick Cage. The synopsis goes “An FBI covert terrorism expert assumes the identity of his arch-nemesis, a sadistic terrorist. Things get complicated when the terrorist awakens from surgery, faceless, and forces the doctors to attach the FBI agent’s face. Both characters then carry out one another’s lives in a game of cat-and-mouse–the FBI agent pretends to be the terrorist while trying to locate and dismantle a nuclear weapon, while the terrorist assumes the role of FBI agent and family man.”

The year? 1997. The future is here.

Five days ago, news reported “How 3D Printing Gave This Man His Life (and Face) Back.” Eric Moger received a detailed prosthetic 3D-printed face. Almost half of Eric’s face left side was taken off about four years ago along with a tumor the size of a tennis ball, leaving Eric with a gaping holes. CT and facial scans facilitated Eric’s doctors, overseen by implant specialist Dr. Andrew Dawood, to create a digital blueprint of his 3D printed jaw then printing off a face prosthetic using nylon plastic, screws and all, holding his head together, so to speak.

In an Internet world, the process of addressing Unauthorized Use of Copyrights and IPO Small Claims Court must start with the Internet, itself. Guiding rules should be written simpler in everyday English, in shorter sentences so the “nuances  of copyright law” can be understood by people wanting to evaluate stepping in to the process, before even hiring a lawyer. Any and all, online entities must declare a land/brick adress, must provide an active phone number with calls returned within 24-48 hours (as per the DC government model). The online entity must be in compliance with local law which includes declaring themselves a business entity, facilitating the potential IPO Small Claims Court to “focus more on a paper practice with fewer (if any) hearings.”

The potential Tsunami of Unauthorized Use of Copyrights and Copyright litigation, in Small Claims Courts or otherwise, are building. The increasing connectivity of the Internet and Broadband and the potential for Interstate claims in an increasingly mobile culture has IP watchdogs on the lookout for secondary infringement of copyright. Secondary infringement happens when one party facilitates other parties infringing copyrights. Secondary infringement is also called Indirect Infringement. A proposal that brings existing Terra Firma law on to the Internet is the accessing of a website without permission, Trespassing.   eBay, Inc. v. Bidder’s Edge, Inc. (100 F.Supp.2d 1058). A databot that trespasses on to an IP, Intellectual Property owner’s site removing IP, is trespassing, an issue could become part of a matter argued in the IPO court, described in use in the UK.It is futile to go after and/or sue tens, hundreds, or millions of direct infringers. The Copyright Owner could sue the “gatekeeper” responsible for facilitating en masse violating of copyrights. “Portal Pimps” or “Gatekeepers” include a long list starting from Search Engines down to Pinterest Princesses looking to pump up their online Viewer-bility. 

Discovery is simple, not- proof of identification, proof of ownership ie publication, etc. by someone with expertise in recognizing photoshopped images- ie. a photographer would know to ask for the card, the images, stuff like like. And herein is an argument to keep the United States Postal Service alive. Once upon a time, people, to cheaply protect their Intellectual Property, would Xerox their idea, put it into an envelope, mail it to themselves and, upon receiving it, leave the envelope sealed unless needed for litigation, proof of date of creation. The slow devolution of the USPS is another stake in the heart of an IP owner mitigating their cost of IP protection. As stated by Stavros Lambrinidis, in his video statement broadcast to TECH@STATE, the Internet is being read by others. Emailing an IP to oneself is an Online License To Be Stolen From. A question without an answer- if an IP owner emails something to themselves are they then guilty of IP theft? Just kidding. Not.

The last office, to be given oversight of this process should be the Copyright Office, in that in over 7 years, the Copyright Office has failed to expeditiously bring about change to protect Copyright Owners, at the same time, appears to be taking steps, with notions presented for Orphan Works, to exploit Copyright owners. The Copyright Royalty Board is limited to industries it provides oversight. The Register of Copyrights stepping into 2D, emerging 3D and other industries would only be more of a cash grab in what is already nicknamed the “only profitable government office,” the USPTO, after all, isn’t it about the Dream, the lottery win.

FAIR USE is the fly in the ointment in this conversation in that FAIR USE has become the artful place to dodge to. FAIR USE is simple- a bit of it not all of it- a slice of the pie not all of it. The change needed here is a definition of 1/16th of the Coconut Crème Key Lime pie or 1/4r or 1/8th or 1/2? No, not 1/2th or 3/4rs or more. Either “pay the lady” as the racing commercial went or move on. Use the image then do so knowing suit is possible. The doctrine holds that an author can use copyrighted material to report on newsworthy events with the effect of the use upon the potential market for or value of the copyrighted work. When an image is used online, unless the image is locked down and barred from being printed or removed to a desktop, the reality is a good chance that image will be removed then used elsewhere without license. An example of FAIR USE in the Internet stage is removal of public information from one site to access pertinent information brokered on another site Ticketmaster Corp. v., Inc. (2000 wl 1887522). Taking the info from Ticketmasters site is Fair Use, had taken Ticketmaster’s logo, that would not be Fair Use. The Argument of FAIR USE has clogged to many courts and people’s time already by No Gooders wanting to push envelopes and agendas as far as they can get away with the Unauthorized Use, hoping the Copyright owner will give up and go away.

The Copyright Royalty Board does not speak for the world of 2D Licensing.  The Copyright Royalty Board addresses web casting not licensing Garfield for Nurses Scrubs or Mylar balloons, greeting cards, plush and infant pacifiers. Prior definitions of business are skewed by the Internet- largely anonymous. ISP’s are not exactly zip codes. The “hunk next door” might be sitting in prison. The babe with the hots might be 400 pound hairy Vladimir in the Ukraine. How does one sue a person or entity without a known adress or contact? If Vladimir is tracked down how does one sue persons like him or an entity located in a foreign country? How does one determine cost of loss if one must hire a lawyer first to engage the Search Engines to release the information?  Should a Search Engine now become part of the process if the Copyright Owner was successful in an infringed image take down? Where does one sue Search Engines, the facilitators of IP Theft? What about the .ru thief utilizing Christian Laboutin’s trademark to gather LIKE’s on FAcebook then conscripting an Administrator’s role on a Facebook subscriber’s site which is then linked to a restaurant in Punta Corda Florida, taking online credit card payments the dowager running the restaurant didn’t understand, being from a sleepy retirement community. The logo, the menu, the list goes on of the IP stolen. Where does one sue and who?

While the conversation defers to State courts NOT having “expertise in copyright jurisprudence”, neither do the Search Engines have “expertise in copyright jurisprudence” to respond to Infringement Claims. Search Engines are acting as Judge and Jury in Take-Down petitions for alleged Copyright Violations basing take down decisions on data the Complainants provides to the Search Engine. Technically, with Search Engines being the “decider” to take alleged Unauthorized Use of Copyrighted material off the Internet, then the conversation of an IPO Small Claims Court is moot, in that the Search Engine is acting in that capacity, all except for issuing awards.

If a Google can send a take-down complaint to Chilling Effects then Google can send an ALERT of the IP, ID and Commerce to the Copyright owner. Chilling Effects is a “collaborative archive created by Wendy Seltzer  and founded along with several law school clinics and the Electronic Frontier Foundation to protect lawful online activity from legal threats. Its website, Chilling Effects Clearinghouse, allows recipients of  cease-and-desist  notices to submit them to the site and receive information about their legal rights and responsibilities.” Google is aware of their “legal rights and responsibilities.”

All that is left to determine is the penalty and where and how to collect it. There are many suggestions. I shudder making them as the suggestions would take America down the route of Greece dipping into people’s accounts. The honor system does not work. If the Honor System did work, the matter would not be addressed at all. In the world of the Internet, impounding Infringing Copies does not apply to 2D IP and ID creators. Parents send their children to bed without dinner in a pre-Lets Move world. How does one send an Anonymous thief to his bedroom to think what he did over, in a Virtual world? The tickler is brainstorming on that version of a notion. What would people do without, to make them want to not steal someone else’s IP? Taking away the Infringer’s computer is an idea but in a world of diminishing PDA’s that not a very good remedy. Restraining Orders? That would be a good remedy against sites like and and others like them. THE MINUTE a site like that is spotted on the Internet if 10 people answer NO when asked if they provided their image/ID/IP to the site, then site is in immediate backup for documentation of evidence, frozen by the Search Engine, all data erased in that the Search Engine would be complicit in ID/IP theft (knowingly) and the state/foreign government would be fined. Also investigated would be the possibility of enacting  mail and wire fraud, any fraudulent scheme to intentionally deprive another of property or honest services via mail or wire communication a federal crime in the US since 1872, with an eye on the RICO Act due to the nature of participants seeking ID gleaned from these sites.   

That said, WAMU reported, April 9, 2013, Maryland’s governance went home, after signing laws. One law stuck out as a sad reality the world is less of a place to get “away” with anything, moreso now when it comes to traveling Maryland EZ Pass lanes without authorization. Bottom line, cameras snap the tag or car idea. The person will be stalked across the country and fined. Ecruing fines would impact renewing car licenses etc. Not at all a fan of big brother, but all the Internet platforms are sharing data, anyway, why not have an IPO Small Claims Court decision, public information, shared with the Search Engines who could facilitate an IPO owners quest for take down then provide documentation the IPO owner could carry into an IPO Small Claims Court with them. The award? OMG, Bitcoins? Not serious. Serious. Rome wasn’t built in a day, remember.

The NEW SYSTEM begins with sticking to the Berne Convention premise that “IT ISNT YOURS.” When someone takes what isn’t theirs, its called Theft- petty theft, larceny, Grand Theft. Stealing is stealing. The only difference between stealing a chocolate bar or an idea be anything other than calories- THEFT IS THEFT.

Put the onus on Search engines to report Take Downs. Pick a number. Three take downs, thirty? Point being, at some number the take down is a permanent  shut down. If a lawyer wants to protest a violator’s shut down, knock themselves out to put up a bond. If the lawyer doesn’t want to put up a bond, the client can. There is a cost of doing business. Lawyers needing to work will learn that sometimes a McMansion can be earned by working in greater numbers in mass markets. Build the connection between People in the Arts, Law and Business before they are in their final year. Start the symbiotic relationship in Art and Law school freshman years.

There is no understanding why all copyright claims must fall inside the exclusive jurisdiction over copyright claims. 28 U.S.C. 1338. The Registrar wrote “jurisdiction in federal courts is generally beneficial because copyright law is federal law, and federal courts have become familiar with copyright analysis and thus should bring a level of consistency to copyright cases. What should be done is removal of the requirement to timely registered.” 17 U.S.C. 412, 504, 505, Recovery of statutory damages and attorney’s fees should be part of the process.

The modern day difficulty, in these days of the Internet, to collect a judgment from an online defendant is the old world problem of collecting judgments from shell companies. The IPO Small Claim Court plaintiff will have to do diligence on learning who the parties to name are. “…not all of these copyright owners, however, have the same resources to bring a federal lawsuit, which can require substantial time, money, and effort.” Clarifying if the suit is a Brick Matter from Click Matter or issuing a ‘With Prejudice’ judgment that covers both is a consideration. Piracy on the Terra Firma is no where near the numbers of piracy on the Internet. Piracy on the Terra Firma does not preclude Internet Theft nor, conversely, does Internet theft preclude Terra Firma theft. ‘With Prejudice’ tends to keep potential re-violators toeing the legal line by providing the IP creator the opportunity to return to court, when the Unauthorized Use violations continue. The IPO Small Claims Court should assure the matter cannot be moved by a defendant in to a higher court nor can a defendant counter sue without presenting, at the Mediation process documentation, a counter suit is valid.

All on board that an IP creator with history of licensing/royalties can participate in an IPO Small Claims Court. An IP creator WITHOUT historic sales/royalties is social climbing, so to speak, unless proof is submitted defendants profits/sales can be documented. IP Small Claims Court could create a pod of online investigators to facilitate pre-determination of case potential. Companies sometimes do answer honestly in phone queries as to how well an item performs at Point of Purchase. Point being, IPO Small Claims Court is one of several logical related services to bring under one roof to seek redress for a Violate IPO owner.

All this said, like horse races, there is no predicting winning or losing, in the paperless world of the Internet where ‘contracts’ change at will of the site, without notice, it will become increasingly more difficult to prove data wasn’t manipulated.

There is never reinventing the wheel. Never say never. One man took an alternative route to Resolution, the internet, not recommended but effective if he felt better and able to move forward. He posted his claim to his pirated copyright, quite colorfully, to say the least. Crusoe asked the question best along with encouragement “ What the hell is the point in patenting it in the first place then, if any bollocks can come along and re-patent it and clean up?? Go get’im boy, and the best of luck!”

A “new small copyright claim system” as delineated by the Registrar of Copyrights exists. It is a UK system, under the stewardship of controversial Lord Justice Leveson. Leveson misguidedly declared Newspapers pursuant to the Milly Dowling murder in his Opinion are Alive and Well.

The joke may be that when America sneezes, England gets the flu, but Europe is where America got is bikeshare concept from, its meterless parking from and so much more. When it comes to England it is the  tail that wags the dog, America.  It beggars the mind that the RSC, Republican Study Committee and the Register of Copyright did not notice that across the pond the United Kingdom’s news. The UK had initiated Small Claims Track for business intended to “speed up the court process and make it cheaper and easier, particularly for small and medium sized businesses, to protect their intellectual property (IP) rights.” There is more to England than Prince Harry’s imminent visit to Jersey or Harry’s infamous visit to Vegas proving that what goes on in Vegas, comes off in Vegas and surely doesn’t stay in Vegas.

Business Minister Michael Fallon welcomed Patents County Court (PCC) announcement that the Small Claims track provides “copyright, trade mark and unregistered design holders the option of pursuing basic IP disputes through an informal hearing, without legal representation. This is expected to reduce significantly the cost of pursuing IP infringement cases. Claims allocated to the small claims track will be subject to damages restrictions of £5,000 or less to ensure they are proportionate to what is at stake. Fallon said “Small firms, whose intellectual property has been infringed, will have today a simpler and easier way to take their cases forward, by writing direct to the judge and setting out the issues. Lower legal costs will make it easier for entrepreneurs to protect their creative ideas where they had previously struggled to access justice in what could often be an expensive progress. A smarter and cheaper process is good for business and helping businesses make the most of their intellectual property is good for the economy.” An IPO office, Intellectual Property Office, overseen by the BIS, Department for Business, Innovation and Skills,  alternatives to court action for “resolving IP disputes, including hearings before an IPO tribunal, or using the IPO’s mediation services. It recommends that legal action is only taken as a last resort.”  

The UK “IPO operates in a national and an international environment and its work is governed by national and international law, including various international treaties relating to IP to which the United Kingdom is a party” which beggars the mind why this has not been part of the conversation moreso in light of “yelster” ID theft protected under French law. ‘Plan for Growth ‘, published at Budget 2011:.Date of release: 1 October 2012

Let’s be clear here, if artists were business people (most of them), the expression “starving artists” would not even exist. Not everyone is a Michael Kors or a Gloria Vanderbilt (Anderson Cooper’s mom) or even a Kim Kardashian whose talent was a video that has parlayed itself into a clothing line for JCP, the new JC Penny’s or going to be one in a growing franchise of Reality Housewives with a talent for preening who then get marketing opportunities tossed at them. One never can say they’ve seen it all. In a world of Intellectual Property, whoever would have imagined that Jane Goodall would be accused of plagiarism Say it ain’t so, Jane.

Getting to the IPO Small Claims court is work. Getting there is also loss of time at work. The average artist makes it hand to mouth, pursuing their art and craft. Not everyone is the artist who designed the NIKE swoosh for $35 who received stock when NIKE went public, according to wikipedia. Docents at the Library of Congress, tell on tour, Carolyn Davidson, was inspired by an element in the Library of Congress, the wing in the famous mosaic of the Greek Goddess of victory, Nike, inspiration for many courageous warriors. Story is told that Greeks would say, “When we go to battle and win, we say it is Nike.

Litigation is the last resort.

First, the Unauthorized Use has to be discovered.

Then comes letter writing in an effort to mitigate matters

Then comes Mediation

Then comes Court with a whole lot of “What If’s” in between

What all the violations are not found?

What if a contact person, entity or agent cannot be found?

What if the contact person, entity or agent is outside the country? Can the local embassy accept service?

What if the contact person, entity or agent don’t respond?

What if there are multiple Secondary Infringements because of the Direct Infringement? A search engine, maybe, who removed © Materials from a personal site © warning et al. Solutions for building a working IPO Small Claims Court will emerge each time a new question arises. THINK of an IPO Small Claims Court as a lump of clay being “thrown” on a potters wheel.

To win, IP owners have to do a weekly/monthly search on multiple Search Engines through thousands of links; Daily Google Alert;  Stalk themselves online; keep revisiting sites that took images down or did not; search WHO IS to locate site’s contacts; Send a DMCA take-down notice. Trust peers, sharing the names of Infringing sites since if they steal from one are stealing from others. Understand that every minute of a creative person’s time invested into pursuing IP theft, is a moment they are not putting into their creativity. It is, commerce lost.

The time is far past Federal Courts and Tribunals. Digital works is putting Intellectual Property creators works at the greatest risk ever. Digital works are used as is, shared, processed, changed and manipulated. Court should be the FINAL step. An IPO Small Claims Court is viable. The merit of an IPO Small Claims Court is that it gives someone small the ability to do something brave. For God’s sake, erase the stigma of Litigious for pursuing thefts of an IP owners, IP and ID.

In New York, the expression was “turn the lights on and watch the roaches run.” Lights on. Get this Congressional clog flushed and running. Let’s get this done.

Mantra here when addressing if size matters? NIKE!!!! (Victory)






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