New Options for Holding Copyright Infringers Accountable
Creatives of all kinds whether they are photographers, authors, designers, or even software developers have most likely all felt the sting of seeing their content copied without permission. The years of work and capital investment that goes into developing creative works often carries both a professional and personal investment for creators which makes the notion of having that investment wrongly copied incredibly stressful. Historically, the path to holding copyright infringers accountable in the United States has been out of reach for most creators, especially those just starting out. Luckily, the US has recently made changes to bring about a more accessible means of copyright enforcement.
The Copyright Alternative in Small-Claims Enforcement (CASE) Act
As part of the Consolidated Appropriations Act 2021 signed into law on December 27, 2020 – a much needed reform was implemented in the United States Copyright system. The Copyright Alternative in Small-Claims Enforcement (CASE) Act establishes a copyright small claims system that allows copyright creators to take action against infringers that arises out of Section 106 of the Copyright Act on a smaller scale than filing lawsuits in federal court.
Traditionally, all copyright enforcement actions have needed to be in the form of lawsuits in federal court. Federal litigation is a lengthy and expensive process – which for many smaller scale creators is simply out of reach. The vast majority of copyright infringement cases in the United States are of relatively low monetary value – which sadly means that many copyright creators have been left without a realistic enforcement remedy.
Copyright infringement remains a federal cause of action and copyright owners will still be able to pursue cases in the federal court system, but the tribunal established by the CASE act is intended for those that cannot take on that expense. For instance, it may be an avenue when seeking relatively small licensing fees regarding creative work for photographers, graphic designers, and the like.
The New Copyright Claims Board
Creators will now be able to bring their infringement claims before a Copyright Claims Board within the US Copyright Office – a three-member panel of experts in copyright law. The Copyright Claims Board has similar authority to a traditional small claims court in that they may oversee a discovery process, conduct hearings, and award monetary and non-monetary relief as appropriate. This panel would be able to award creators up to $15,000 per work and $30,000 per claim, assuming the creators had registered their work with the office. In the event their work had not been registered, the recovery limits are cut in half at $7,500 and $15,000 respectively. With a copyright registration being a relatively inexpensive and quick process – it is a no brainer that creators should be seeking official registration of all their work. You can learn more about the Copyright Registration process here.
For Legal Professsionals
For legal professionals, it is important to note that while the Copyright Claims Board will be based in the Washington DC, the CASE act dictates that the governing law for each dispute shall be the federal jurisdiction under which the claim would usually have been brought. Secondly, board decisions will not be precedential. The board is also not allowed to consider whether the infringement was willful as a federal court usually would. Additionally, while attorneys’ fees are recoverable under the Copyright Act, the Board may not award attorneys’ fees except in the case of bad faith conduct—in which case, any fee award may not exceed $5,000, absent extraordinary circumstances, such as where a party has engaged in a pattern of bad faith conduct. For these reasons, each copyright claim will still need to be evaluated individually to determine whether the new small claims process or a traditional federal action is best suited for a creators situation.
Beyond the monetary penalties, the board will also be able to send the infringing party a notice to cease the infringing activity.
Potential Risks of the New Small Claims Process
It is important to recognize that parties can opt-out of this new small claims process—once a claim is filed, the accused has 60 days to reject the small claims process, which would force the action to be heard in federal court instead. Decisions of the Claims Board may also be appealed on a limited basis to federal court.
The CASE act also touches on the reality that copyright trolls will likely attempt to take advantage of the new lower cost bar by filing frivolous claims. In an effort to limit this, if a party is found to have brought a claim to the Copyright Claims Board in bad faith more than once in a 12-month period, they will be barred from bringing another claim before the board for an additional 12 months.
While the new small claims process is intended to be an easier bar to entry there is still legal strategy involved to determine whether it is the best route for you, navigating the claim process, and understanding the risk that it may ultimately end up in federal court based on removal by the other party.
Intellectual property rights are only as valuable as owner’s efforts to enforce them. While copyright protection is established upon creation – the remedies to infringement increase significantly, including those mentioned here if a creator’s copyright is registered. If you have reason to believe that your creative work is being copied by an unauthorized party – you can schedule a consultation here to begin the process of having your claim evaluated to see if this new process is a suitable option in our situation.