THE CASE ACT OF DECEMBER 2020 CREATES A SIMPLER COPYRIGHT INFRINGEMENT CLAIMS PROCESS FOR PHOTOGRAPHERS & OTHER CREATIVES
The Copyright Alternative in Small-Claims Act (the CASE Act) became law on Dec. 27, 2020 and is a welcome alternative to expensive federal court lawsuits by individual creators and small businesses (Creators) across the country who all too frequently have their copyrighted works infringed. Prior to the Act, all copyright right infringement claims had to be brought in federal court, effectively discouraging many Creators from suing infringers due to the high costs involved. Additionally, federal court copyright cases are generally very complex and can go on for a long time, further adding to the legal costs and plaintiffs’ frustration. As a result, infringements regularly went unchallenged, leading many Creators or the small business owners of the Creators’ works to feel disenfranchised by the copyright system. In effect, these individuals/businesses had rights but no reasonable remedies.
Rather than file a federal court lawsuit, Creators will now be able to bring their infringement claims before a Copyright Claims Board (“CCB”) within the U.S. Copyright Office – a three-member panel of experts on copyright law. The panel will have the right to award, e.g., photographers, up to $15,000.00 per work and $30,000.00 per claim, assuming the works have been registered with the office. For unregistered photos, the amount of the award is reduced by fifty percent. In addition to monetary penalties, the Board could also issue a notice to the infringer to cease the infringement.
The commentator notes that a copyright infringement action brought in federal court requires that the work has actually been registered with the U.S. Copyright office. See the March 4, 2019 decision by the U.S. Supreme Court in Fourth Estate Public Benefit Corp. v. Wall-Street.com. It is not clear why this requirement is not required for a CCB proceeding. The commentator still recommends that a creator secure a registered copyright by filing for copyright registration within 90 days of publication to take advantage of the potentially greater monetary award provided by the CCB for registered works, or, in the alternative to have the option of a proceeding in federal court.
The CCB officers are appointed by the Library of Congress. The candidates must have demonstrated expertise in copyright law. For example, they must have represented or presided over a diversity of copyright interests, including those of both owners and users of copyrighted works. This helps to ensure that the officers are fair and unbiased.
Another problem with federal copyright infringement cases is that the judges cannot usually be expected to be subject matter experts in this complex area of the law. This lack of consistency in judicial background and experience has led to inconsistent copyright infringement decisions across jurisdictions or even within the same jurisdiction. Since the CCB experts will be subject matter experts, the expectation is that the decisions will lead to more consistently correct decisions than in federal courts. Hopefully, the CCB’s decisions will be published so they can be relied on in federal court cases.
There are numerous other provisions in the CASE Act beyond the scope of this Law Update. Contact us to discuss your options in bringing a copyright infringement claim under the CASE Act. We would be honored to represent creatives in their quest to protect the fruits of their creativity at a one-time flat fee.
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