Sarasota Expert Crafted Artist Protections in Federal Omnibus

Todays News

BY JACOB OGLES SRQ DAILY MONDAY BUSINESS EDITION MONDAY DEC 28, 2020

Tucked within the omnibus spending bill signed late Sunday by President Donald Trump is a new law aimed at protecting freelance artists from having their work used for unlicensed purpose by unscrupulous publishers. Part of that language was written with the help of Bruce Lehman, a Sarasota expert on copyright law.

Lehman, an advisor for the Artists Rights Society of the United States and for the Association of Medical Illustrators, has been one of the nation’s lead voices on copyright issues for years, including serving as President Bill Clinton’s Commissioner of the U.S. Patent and Trademark Office. He paid close attention to the crafting of the Copyright Alternative in Small-Claims Enforcement Act of 2019. He noted enforcement of copyright law in the U.S. falls entirely under federal jurisdiction, which in the past has required artists fearful of infringement of bringing action in federal court, a costly and often inconvenient venue. The new CASE Act allows cases involving less than $15,000 in claims to be settled by a tribunal convened by the federal copyright office.

“It’s intended to deal with cases in which the damages would not be sufficient to justify full-scale federal litigation,” he said. “A lot of authors haven’t had as a practical matter an effective remedy because it costs more to sue than you would get.”

But such legislation inevitably becomes complicated— and it holds the potential for unintended consequences as well. Many of Lehman’s own clients in the medical illustration and visual art world, some of whom contract with international companies known to reproduce illustrations in multiple medical journals without asking, feared the CASE Act could eventually be turned against artists themselves. The fear is that publishers could push the artists into CASE Act arbitration against their will and settle a dispute for a small amount of money, then go about republishing the work excessively, potentially an action that would result in much larger damages.

Lehman helped craft language dealing specifically with this concern, and it was ultimately written into the CASE Act and the omnibus bill by Rep. Gerald Nadler, D-N.Y. The language makes clear the CASE Act “is intended to be completely voluntary for both claimants and respondents.” It also makes clear publishers can’t require original work-for-hire contracts for all arbitration go to a CASE Act tribunal rather than being taken up in the existing federal court channels. It’s a fine balancing act, Lehman said, trying to make sure artists have a cheaper way to settle small disputes without relinquishing their rights to seek major damages when appropriate.

It could all be especially important to the art world in Sarasota, where the Ringling College of Art & Design produces illustration majors, many of whom go into medical illustrations.

Of course, the spending bill itself has become controversial. Trump criticized a COVID-19 relief bill passed by Congress that’s closely tied to the omnibus spending bill, but ultimately signed it into law to avert a government shutdown. Susan Nilon, managing partner for Lehman Nilon & Associates, has been tracking the legislation closely for the firm. She said the language survived into the final omnibus bill because the CASE Act provisions had bipartisan support in Congress.

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