Washington, D.C. (October 10, 2002) – Joshua J. Kaufman couldn’t believe what he was seeing, and hearing. His speech on the nascent Art Copyright Coalition (ACC) was interrupted by applause, in front of a standing-room-only crowd of fierce competitors at a recent trade show for art publishers.
"It was incredible," said Mr. Kaufman, who heads the Copyright, Unfair Trade and Entertainment practice group out of Venable LLP’s Washington, D.C. offices. "Having all of these people, who fight tooth and nail over the same artists, in the same room, applauding for the same cause, was a very satisfying feeling for me and for the people who put the ACC together."
Mr. Kaufman knows that nothing brings people together like a common enemy. In 1989, he won a unanimous verdict in the Supreme Court in the landmark case CCNV v. Reid, in which the Court decided that, by default, creators, not employers, hold copyrights on creative work done in the course of their employment. "There were about 500 amicus briefs on the other side," he recalled. "Every major corporation, computer company and media outlet was against me."
Times have changed, and now Mr. Kaufman has the support of major commercial ventures. Their common foe: copyright violators. Nine of the largest art publishers in the country, representing some of the most well-known artists, founded the ACC to combat piracy, and asked Mr. Kaufman to be General Counsel."
Josh Kaufman not only has deep experience in intellectual property law as it relates to art, but he already represents a long list of publishers and artists who highly recommended him," said Robert Sher, ACC President and President of the Bentley Publishing Group. "He is the pre-eminent authority in our industry."
The coalition needs all the help it can get combating a problem that permeates the visual arts and publishing industry. "I don’t think anyone’s ever quantified the problem, but everyone is getting ripped off all the time," said Mr. Kaufman, who is the third Venable partner named to a top spot in a leading intellectual property or technology association in just over a month. (In September, J. Scott Hommer was elected to a second two-year term as General Counsel of the 1,700-member-strong Northern Virginia Technology Council; and Newton B. Fowler, III, was named Chairman of the Greater Baltimore Technology Council).
Though piracy has been a thorn in the side of the art-publishing industry for decades, historically, publishers, artists and other copyright holders have not pooled their resources to fight it. Other industries have well-known associations protecting the rights of artists: in the music industry, it’s the Recording Industry Association of America; the film industry has the Motion Picture Association of America; even the relatively young software industry has the Business Software Alliance and the Software and Information Industry Association. But up until now, visual artists were on their own.
"In this century, it is the number one issue facing art publishers, and it’s not going to go away on its own," said Garry Peters, President of Art in Motion, a founding ACC member.
How Competitors Will Cooperate, and Who They Are Targeting
The Washington-based ACC is a non-profit organization, in which members contribute to a pooled fund. Complaints of infringement can only come from members. "This prevents the fox getting into the henhouse," Mr. Kaufman said. (Any legitimate artist, artist agent or publisher can join.)
The complaints are reviewed by Mr. Kaufman, and if a violation is found, all of the ACC members are notified. Frequently, several members are affected by a violation. These members can then form a "Joint Enforcement Team." The JET can decide whether to pursue a lawsuit – part of any monetary recovery is filtered back into the ACC. Rewards will also be offered to informants.
Some violations are blatant old standbys, like unlicensed reproductions, which are frequently imports and are often being sold under the artists’ names. Unlicensed goods bearing the artists’ images are also a major problem that has long affected the industry.
Of late, some of the most problematic violations involve cutting edge technologies that have become widely available. For example, virtual galleries often show millions of dollars of stock, but in fact most just hope to make the sale first, and get the art later. How do they do this?
"Anyone can get a $200 scanner, swipe catalogs of legitimate companies at trade shows and scan the stock photos for virtual galleries online," Mr. Kaufman said. "Sometimes they just grab the catalogs and run out of the room. They’re not subtle," he said. Mr. Kaufman is convinced that the copying of the catalogs for a virtual gallery is a copyright violation, and he says the ACC will go after the operators of these websites. He also will support members who act against sellers of derivative works that may be over the legal line. (Can a person buy a $30 print, reproduce it on tile or canvas and legally sell it at a markup? No, according to Mr. Kaufman.)
Mr. Kaufman is realistic, but confident about the ACC’s ability to make a difference. "We can never stop piracy completely," he said. "It’s like squeezing a balloon. You squeeze it one place, and the air goes somewhere else. But our members would be in the squeezed part of the balloon." With the ACC putting the squeeze on violators at every point in the distribution chain, maybe one day the balloon will burst.
To speak with Mr. Kaufman, please contact Keith Emmer or Sarah Gudsnuk.
One of the American Lawyer’s top 100 law firms, Venable LLP has attorneys practicing in all areas of corporate and business law, complex litigation, intellectual property and government affairs. Venable serves corporate, institutional, governmental, nonprofit and individual clients throughout the U.S. and around the world from its headquarters in Washington, D.C. and offices in California, Maryland, New York and Virginia. For more, visit www.Venable.com.