Copyright and Visual Works: The Legal Landscape of Opportunities and Challenges

The internet age has dramatically affected the lives and livelihoods of visual artists both positively and in ways that were not expected. Photographers, graphic artists, and illustrators have highlighted a growing list of issues in recent years, including whether copyright law adequately addresses the new challenges facing visual artists today. The Office has reviewed how certain visual works, particularly photographs, graphic artworks, and illustrations, are registered, monetized, and enforced under the Copyright Act. In April 2015, the Office sought commentary on the marketplace for these visual works, as well as observations regarding the obstacles that creators and users of visual works face when navigating the digital landscape. The Office’s resulting review builds upon previous studies and public inquiries in a number of areas, including small claims, orphan works, moral rights, section 512 notice and takedown, and overall Office modernization.

The Copyright Office’s review both reinforces the importance of visual works to this nation and identifies common obstacles that Congress and the Office itself may be able to alleviate. A number of stakeholders, including photographers, graphic designers, illustrators, and licensees, raised specific issues they face on a regular basis regarding current copyright law and practices. These challenges fall within three general categories: (1) difficulties with the registration process; (2) challenges with licensing generally and monetizing visual works online; and (3) general enforcement obstacles.

The Copyright Office takes these concerns seriously and has already taken steps to address them where it can, most notably with the ongoing Office modernization efforts in preparation for a wholesale technological upgrade to the Office’s systems. In other areas, legislative action may be the best solution. The Office continues to strongly support the idea of a small copyright claims tribunal located within the Office, as well as a legislative solution to the orphan works conundrum. Congress’ action in these two areas would go far to alleviate several important concerns raised by visual artists.

In January 2019, the Office submitted a letter to the Chairman and Ranking Members of the House and Senate Judiciary Committees summarizing the current copyright legal landscape faced by creators and users of visual works.