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Written by Kathryn Goldman.
A copyright small claims court is an idea whose time has come.
The problem with the current system of copyright enforcement in the United States is that it’s too expensive and complex. Estimates are that it costs an average of ~$350,000 to prosecute a federal lawsuit to enforce copyrights. I have been involved in cases that have taken as long as seven years to resolve and cost my clients anywhere from $250,000 to $800,000. Most creative professionals simply can’t afford to protect their rights. The game is for the big players only.
The way it stands now, visual artists, authors, songwriters, bloggers, vloggers, and small businesses have rights in their creative properties, but no meaningful remedies when their work is taken. Certain members of Congress, working with key stakeholders, are trying to fix that problem.
Copyright Small Claims: the Proposal
On September 27, 2018, the House Judiciary Committee held a hearing on the Copyright Alternative in Small-Claims Enforcement (CASE) Act HR 3945. The CASE Act is an attempt to create a simple and inexpensive process that will allow creative professionals to bring claims of infringement or seek declarations of non-infringement.
The idea of the current draft is that there would be a small claims tribunal called the Copyright Claims Board operating out of the Copyright Office. Three Officers would hear the claims. Attorneys would be optional; claimants could bring and argue their cases themselves. Hearings would be conducted electronically with no need to appear in person. So, no travel costs.
Using the Copyright Claims Board to resolve an issue is completely optional. A copyright holder does not need to file a claim there and the respondent (the person against whom the claim is filed) can opt out of the process.
Damages are limited. Statutory damages per work infringed cannot exceed $15,000, total damages cannot exceed $30,000. Filing an application for copyright registration is required before a claim can be brought. A claimant is limited to filing up to 10 cases per year, referred to as the “cap.”
I am by no means an expert on the legislative process but before September 27th, the CASE Act had stalled in Congress. Other pieces of legislation impacting intellectual property rights, specifically addressing the rights of musicians, took priority. Individuals and organizations who have worked on the CASE Act continued pressing to have the bill moved forward.
In August, I went to Washington with one of my clients to meet with Joe Keeley, Chief Counsel of the Subcommittee on Courts, Intellectual Property, and the Internet of the House Judiciary Committee. Our goal was to express our support for the bill and push for a hearing.
My client, Elizabeth Putsche, has been involved in litigation over ownership of a body of work consisting of 15,000 photographs for nearly four years in four different courts, both state and federal in two different states. Her ordeal has turned her into a copyright reform activist. Her persistence, as well as the hard work of many others, resulted in a hearing being scheduled just a month after our visit.
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