Copyright Notices and Zombies
One of the easiest DIY ways to add some protection to your creative work is to include a copyright notice. It doesn’t require a lawyer, it doesn’t cost anything, and it takes almost zero effort, while providing several benefits — including just letting people know that you value your work and don’t want them using it for free. The history of copyright notices can be confusing and colorful (zombies! see below), but adding a copyright notice today is drop-dead simple for most works.
WHY SHOULD YOU INCLUDE A NOTICE?
There are many reasons why you should use copyright notices, but to be clear, you don’t have to use them. At least, not anymore. In ancient times (meaning, before 1989), failure to include a copyright notice in the correct form was potentially fatal to copyright protection. As a notable example, in 1968, the distributor for the horror film Night of the Living Dead forgot to include the copyright notice on the film when it changed the graphics for the title (it was originally called Night of the Flesh Eaters). Under copyright law at that time, the lack of a proper notice caused the film to immediately enter the public domain. This perversely increased its popularity, because television stations and theaters could use the film for free (and did so with gusto) — arguably leading to the overall popularity of zombie films today.
For any works created after March 1, 1989, however, a copyright notice is no longer required to maintain copyright protection. That said, there are several advantages (both legal and financial) to including a copyright notice whenever possible:
A notice lets potential users know that the work is protected and that they need to obtain permission before using it. This helps prevent infringement if potential users either mistakenly thought the work was free to use, or simply didn’t think about whether it was protected.
A notice lets potential users know whether the copyright is still in effect, in case they mistakenly thought the work was old enough to be in the public domain.
If you ever need to enforce your copyright in court, a notice prevents infringers from trying to limit their liability based on an “innocent infringer” defense.
Because a notice lists the copyright owner, it is another way of letting potential users know who to contact if they would like to pay for a license ($).
WHAT DOES THE NOTICE HAVE TO SAY?
Here’s the simple part — to be effective, a copyright notice only needs to include three things:
The copyright symbol © (or for sound recordings, ℗); the word “copyright”, or the abbreviation “copy.”
The year of first publication of the work; and
The name of the copyright owner.
So, for example, the copyright notice for my blog looks like this:
© 2020 by Mauck Law.
Pretty easy, right? Now for the details:
The year can be written out in Arabic or Roman numerals, though using Roman numerals is pretty rare outside of the film industry. If the work was published over multiple years (like the contents of a blog or a website that is expanded over time), you can use a date range, e.g. © 2019-2020 by Mauck Law.
If a work is unpublished, you can still include a copyright notice, and would just use the year that the work was created (Unpublished Masterpiece © 2020 by Ryan Mauck).
It is important that the name listed is the owner of the copyright, which in most cases is also the same person listed in the copyright registration (you are doing a copyright registration, right?). By default, this is the author of the work, but it may be someone else if the piece is either a work for hire, or if the new owner acquired 100% of all of the rights in the work exclusively. This last bit can be tricky - if someone just acquires part of the copyright (like the right to distribute the work, but not to create derivative works), or if they license the work on a non-exclusive basis, they shouldn’t be listed.
If you’d like, you can also include additional information after the notice, such as the ubiquitous “All Rights Reserved,” but such a statement isn’t legally required (by default, all rights are already reserved).
WHERE DO YOU PUT THE NOTICE?
Where to place the copyright notice is worth thinking about, particularly if you are trying to avoid distracting from or damaging the work’s visual aesthetic. It may be tempting to “hide” the notice in a place that isn’t normally seen, but this actually defeats the entire purpose of the notice.
As a general matter, the Copyright Office says that the notice needs to be placed “in such a manner and in a location that provides reasonable notice to the public of the claim to copyright. In all cases, the acceptability of a notice depends upon its being permanently legible to an ordinary user of the work and affixed to the copies in such manner and position that it is not concealed from view upon reasonable examination.”
In other words, the notice needs to be reasonably visible, and needs to be permanent. Concealing the notice by, for example, using a microscopic font size, placing the notice beneath the area covered by a permanent mat and frame, or placing the notice on the bottom of a figurine that’s glued to a base would render the notice defective.
The Copyright Office also provides guidelines on where to place the notice for different types of works. Some examples:
Books - copyright notices can be placed in many locations in a book, including the title page, the front or back covers, or the first or last pages of the main body (the guidelines linked to above list more options if you’re curious). However, you cannot just include the notice on a dust jacket, because those can be easily removed from the book (remember, the notice needs to be permanent).
Films - the notice should be embedded in the film (visually, like the title or the credits) either with or near the film’s title, in the credits, or at the beginning or end of the film. If you’re posting your work on the internet such as via YouTube or Instagram, I’d also suggest that you include your notice in the comments or text description.
Paintings, Photographs, Sculptures - either place the notice directly in/on the piece or permanently attach a label that includes the notice. The notice can be on the front or back (as long as it’s easily accessible to the ordinary viewer), and it can be on the work itself or on a permanent mount, frame or base, if there is one.
Computer Software - in today’s world, it’s becoming rare for software to come in any physical container that could be labeled with a notice. So software needs to display the notice when the program itself runs. This can be done in a couple of different ways, such as in a splash screen at startup, or in the About menu. If the software does come in a physical box and/or on disks, those should contain notices as well (and creative labels or packaging may be themselves protected under copyright law, anyway).
Blogs, websites - the best place to include a copyright notice is in your site’s footer, so that it appears on every page. Just don’t forget to update your date range each year.
Finally, a note on watermarks for photographs or videos posted online. Watermarks can include a copyright notice, but aren’t themselves a notice unless they contain the three items listed above. And, even if they do include the three components, they still need to be visible and legible.
Common Legal Questions for Photographers
Whether you work in portraits, landscapes, advertising or adventure, photographers face certain legal questions they need to consider: Who owns the photos you take? Do you need a model release? Where can you legally take photos and where can you not? And what about taking photos with labels, logos or artwork in the background? In most cases, avoiding these legal issues is not difficult, it just takes a little awareness and forethought.
WHO WILL OWN THE COPYRIGHT?
The good news is that unless you are an employee taking photographs as part of your job or you specifically agree otherwise in writing, you almost always own the copyright in the photos that you take, just by taking them. The bad news is this may come as a surprise to your clients. To avoid any conflicts down the road, whenever you’re hired for a specific gig you should be clear with yourself and your clients about who owns the copyright, and what the other party is allowed to do with the photos. For example:
If you keep the copyright, is the client allowed to make their own copies? To post the photos on Facebook? Or to use the photos in a future ad campaign if it’s for a business?
If the client will own the copyright, are you allowed to keep copies and use them for your portfolio, to display in your studio, or to use on your website or in advertising?
Determining who owns the copyright is also important for determining who will take responsibility for registering the copyright, particularly if there is any concern that others may try to copy or use the photo in the future. Probably not an issue for family photos, but a landscape or adventure photo may have licensing value to protect.
DOES IT MATTER IF THERE ARE PEOPLE IN THE PHOTO?
If your photographs include people, there are several potential legal issues that you need to think through.
RIGHT OF PUBLICITY
The first issue is that each of the individuals in the photographs may have a right of publicity. The right of publicity protects individuals from having their images used to promote or endorse anything if the individuals are recognizable in the photo. This doesn’t just apply to using a celebrity’s image without their consent. Imagine an extreme scenario – using a photograph of a devoted vegetarian and animal lover to promote the local hamburger joint without their consent – and you can see why individuals may want to have some say in how their image can be used.
The exact scope of the right of publicity, however, varies from state to state. Oregon, for example, does not have a statutory right of publicity. Courts have suggested that a person with an economically valuable identity – i.e., a celebrity – may have a cause of action under common law if their image is used for commercial purposes without their permission, but it’s unclear if most people would be able to assert such a claim. New York, on the other hand, does have a statutory right of publicity which explicitly extends to every living individual, celebrity or no. And California not only has a statutory right, but it even extends the right to the deceased.
RIGHT OF PRIVACY
Separate from the right of publicity is the right of privacy. Generally speaking, if you take a photograph of someone in a way that intrudes on their private affairs and then publicize it without their consent, you are invading their rights. For example, a haunting photograph of a person shooting heroin in a private room might be great art, but it also exposes the individual’s drug use to the world. If a photograph would mislead viewers into seeing the subject in a false light (e.g., an individual entering a rehab center when they were merely working or volunteering there), it may also be inappropriate.
MINORS
First, let’s dispel a common myth – there is no all-encompassing ban on taking photographs of minors without parental consent. So photographs of a park or wilderness area that happen to include some kids in the background are usually fine. However, kids have the same rights of publicity and privacy as adults, and while adults can sign a release and give permission to use their image, minors typically can’t. That means that a parent or legal guardian needs to sign any releases on behalf of anyone under 18.
SHOULD I GET RELEASES?
Speaking of releases, what’s the easiest way to avoid potential issues with rights of publicity and privacy? Ask any individuals who are recognizable in the photographs to sign a release. Even if you don’t currently plan on using the photo for commercial purposes, plans change. And you may want to use the photo for your own advertising or promotion down the road. A release doesn’t obligate you to use the photo, but it keeps your options open.
A release form does not need to be 10 pages long and filled with legalese. The important components are a description of the photo (e.g., photos at Riverbend Park taken February 21, 2020) so that it’s clear which photos the release applies to, a description of how the photograph may be used (which should be as broad as the subject is OK with), and a statement that the subject agrees to this use, with his or her signature and the date. If the subject is a minor, it should be signed by a parent or legal guardian.
Sample release forms are readily available on the internet or from DIY legal sources, but make sure you actually read the form and modify it to fit your situation. The language of a release form is not carved in stone, and depending on the age and source it may be totally inappropriate for your use. For example, if you plan on posting the photograph on Instagram and the release says nothing about social media or the internet, it may not do what you want it to do.
DO I NEED PERMISSION TO SHOOT AT A LOCATION?
If you are shooting outside of a studio, you need to consider whether you have permission to do so. Shooting on private property (including private places open to the public like stores, amusement parks and sporting events) without permission is potentially trespassing, so you should get permission first and respect posted rules that prohibit photos. Plus, since 1990 buildings can themselves be copyrighted, so your photographs of a private space may be infringing the architect’s copyrights (see below).
Shooting on public property (like a park) is generally OK, with a couple of important caveats. First, certain public places may restrict or prohibit photographs, especially courthouses, military bases, airports and museums. In some cases this is an outright ban, and in other cases only commercial photo shoots are prohibited, so you need to know and understand the rules.
Second, shooting in a place where someone has an expectation of privacy (such as a health clinic, an AA meeting, or a bathroom) will almost certainly run afoul of the right of privacy (see above) for anyone in the photograph.
Third, even if photos are allowed you may still need a permit, particularly if the shoot will interfere with daily operations (such as holding up traffic, blocking a sidewalk, or creating any sort of potential hazard).
IS IT OK IF THERE ARE TRADEMARKS OR COPYRIGHTED WORKS IN THE PHOTO?
Just as it’s important to protect your rights in your work, it’s equally important to respect others’ rights. That means exercising caution when your photographs include someone else’s copyrighted works or trademarks. Incidental use of copyrighted works may – or may not – qualify as fair use, but because fair use is highly fact dependent, there are no bright line rules to assure your use is OK.
Similarly, a photograph which happens to include a trademarked name or logo may qualify for fair use, but it would heavily depend on how the work was used, and whether the use may mislead a viewer into believing that the trademark owner was involved in or approved the photograph – and you won’t know for sure if your use qualifies as “fair use” until a judge or jury decides the question many tens or hundreds of thousands of dollars down the road. Plus, fair use depends in part on how you are using your photograph, so relying on a fair use defense can hamstring you in selling or licensing your work in the future. To the extent possible, avoid the issue by removing copyrighted or trademarked works from the shoot or in post-production, or getting permission ahead of time.
Public Performances Of Movies And Music For Small Businesses
In most minds, copyright infringement means illegally downloading the Game of Thrones finale or the new Beyoncé album. Last week, Disney provided a stark reminder that copyright law is much broader — and includes restrictions on publicly performing copyrighted works, even if you legally purchase a copy. Though that story appears to have a happy ending, most small businesses and even non-profit organizations can’t count on being so lucky.
WHEN DOES A PUBLIC PERFORMANCE RIGHT APPLY?
Among the bundle of rights that every copyright owner holds is the right to decide when and if a work is performed publicly. “Public” in this context means a space open to a substantial number of people outside of a normal circle of friends and family – so movie night with your friends in your living room is fine, but projecting the same movie in the park to a couple hundred strangers is not. “Public” spaces also include privately-owned spaces which are merely open to the public (like retail stores, restaurants and coffee shops), as well as semi-public places that may be restricted, but are still open to a group beyond friends and family (like offices or private clubs).
Where many small businesses get tripped up is that public performance rights cover not just movies (like the Lion King DVD that sparked the opening story), but music, including karaoke, background music, hold music on phones and live musical performances.
WHOSE PERMISSION DO YOU NEED?
In order to publicly perform a copyrighted work, you must obtain permission (called a license) from the owner of the copyright. For films, that’s typically the studio or distributor. Music is unfortunately more complicated. That’s because a piece of recorded music actually contains two separate copyrights: the copyright in the written music, and the copyright in the recorded music; and the owners are often different. For example, consider the song Hallelujah. Leonard Cohen, who wrote the song, owned the copyright in the composition, and in order to publicly perform the song you would need permission from his estate (or someone authorized to give that permission, like a music publisher). But if you wanted to play Jeff Buckley’s cover of the song, you may also need permission to play that recording, which is likely held by the record label.
To complicate things even further, due to a quirk of history, sound recordings (e.g., Buckley’s Hallelujah track) did not traditionally have a public performance right – meaning you needed permission from the Cohen estate, but not Buckley’s label, to play the track. That remains true when playing old-school recordings such as vinyl records, cassette tapes or CDs. But it is no longer true for music that’s played over the internet or using digital transmissions (i.e., streaming). If a recording is played through those means, you do need permission for both the composition and the recording.
EXCEPTIONS
So who is potentially exempt from needing a public performance license? Not as many as you would think.
Establishments are permitted to display broadcast television and radio, as long as they don’t exceed certain thresholds for square footage and number of TVs/speakers (which is why bars and restaurants are permitted to show sporting events). But because this exemption only applies to broadcasts, it doesn’t provide an exemption for modern music streaming such as Pandora, Spotify or Apple Music. In fact, the terms and conditions for consumer music streaming services specifically prohibit using the services in a commercial setting – so not only is it copyright infringement to do so, it’s a breach of your agreement with the service.
There are also some exceptions for educational purposes (such as a teacher showing a documentary in class), and for certain types of works if the performance is for a non-profit purpose and either there is no admission fee, or all of the admission proceeds are used for charitable purposes. But as our opening story demonstrates, not all educational or non-profit uses are permitted.
HOW DO YOU GET PERMISSION?
The good news is that obtaining permission to publicly perform works is often easier than you think. In the case of music, most songwriters join performing rights organizations such as ASCAP, BMI and SESAC. Those organizations in turn sell blanket licenses that cover all of their members for a single monthly or annual fee. Pricing is dependent on the type of business and size, so small businesses typically pay less than big corporations. By getting licenses with each of the major organizations, you’ll be covered for most songs. To make things even easier, you can subscribe to a service that obtains licenses from all of the performing rights organizations for you for a single fee.
Of course, that only covers performing rights, and not digital recording rights if you want to use streaming service. Fortunately, there are several services – including, soon, Spotify and Apple Music – who offer versions of streaming products specifically designed and licensed for commercial settings.
Finally, you can also play music from local artists, who can directly give you permission – just make sure you are getting permission from both the songwriters and the performers, and that they aren’t including covers they don’t have the right to give you in the first place.
Films can similarly be licensed through rights organizations, who may charge an annual fee (if your organization does regular movie nights) or a per-event fee. Non-profit organizations can sometimes obtain special, more inexpensive licenses to publicly show documentaries and feature films, though the permission may be subject to certain restrictions (for example, they may have to agree not to charge admission).
WHAT’S THE RISK OF NOT GETTING PERMISSION
The risk is that you are infringing someone’s (maybe multiple someone’s) rights, and there are consequences to doing so. Setting aside the morality of using someone else’s work without permission and without paying, the performing rights societies make it a point to enforce these rights, sending undercover scouts to venues to check for unlicensed uses and filing hundreds of copyright infringement lawsuits annually (including recent cases against a Bend tavern and two Portland bars). If you are caught, then at a minimum the rights holder is going to want you to retroactively pay the license fee (and maybe a penalty), and if they file a lawsuit you may be on the hook for statutory damages of between $750 and $30,000 per copyright, as well as needing to pay the other side’s attorneys’ fees (which may well cost six figures or more).
Enforcement has become so pervasive that Oregon recently passed a law regulating the way that performance rights organizations demand licenses and payments. The law prevents the organizations from engaging in over-the-top practices like causing a scene in a restaurant to try to force an owner to pay, or deceiving someone into signing a licensing contract, but it doesn’t prevent the organizations from enforcing copyrights or investigating infringements.
The bottom line is that getting permission to publicly perform music and films is usually required for businesses of all types, and is not overly expensive or difficult. On the other hand, the cost of not getting permission can be quite high. You may be familiar with the saying “it is better to ask forgiveness than permission.” That can be a pretty risky attitude when it comes to copyright infringement.
Art Consignment In Oregon - Automatic Rights And Responsibilities For Artists And “Dealers”
Many artists rely on consignment arrangements to display and sell their work while they focus on what they do best — create art. Under this type of arrangement someone other than the artist — a professional dealer or gallery, a local restaurant, a coffee shop, a bank, even a small retail shop — takes temporary possession of the work and displays and sells it to customers, usually in exchange for a commission when and if the piece is sold. Deceptively simple, consignment deals contain a host of traps if things go pear-shaped, particularly for the artists. Recognizing this, Oregon law provides artists with a number of automatic, guaranteed rights in any consignment deal — along with imposing certain obligations on any “dealer” who takes art on consignment, and penalties for failing to meet those obligations (intentionally or not).
WHO AND WHAT IS COVERED?
Art and Artists - Although the law speaks in terms of “fine art,” the law covers most forms of original, tangible art, including paintings, photographs, sculptures, calligraphy, graphic arts such as lithographs, crafts and mixed media art such as collages. It also specifically protects the artist, meaning the creator of the work, or his or her estate if the artist is deceased.
“Art Dealers” — The law applies to much more than traditional art dealers and galleries. By definition, any individual or company that agrees to sell a work of art on behalf of the artist is included, provided they do so on “consignment” (meaning the art is delivered to the “dealer” for sale or exhibition to the public). So the law covers not just galleries, but restaurants, coffee shops, local stores, etc. that arrange to display art and sell it in exchange for any compensation — a commission, flat fee, etc. (arguably, the benefit of getting to display the art work for free is itself a form of compensation, even if the “dealer” doesn’t collect a fee, though I’m unaware of any case in which the definition was stretched this far).
WHAT ARE THE ARTIST’S RIGHTS, AND WHAT ARE THE “DEALER’S” OBLIGATIONS?
Assuming that the arrangement meets the definitions above (and again, these definitions are very broad), Oregon law creates a whole host of automatic protections for the artist:
RIGHT TO A WRITTEN CONTRACT
First and foremost, the deal must be in writing (no handshake agreements), and the written contract must include:
(1) The retail value of the work;
(2) How quickly the artist will be paid once the work is sold;
(3) The minimum price for which the dealer can sell the work; and
(4) The fee, commission rate or other compensation that the dealer will receive for selling the work.
The “written contract” does not necessarily need to be a formal, lengthy document, but it does need to be in writing, it must include at least the four items listed above, and it should be signed or acknowledged by both parties.
The burden of making sure that there is a written contract falls squarely on the dealer. If, for whatever reason, there isn’t a written contract in place before the dealer accepts the art work, then the dealer must pay the artist a $100 penalty plus any damages that the lack of contract caused. Moreover, the artist has the right to void the deal entirely — meaning that the artist has complete discretion to either enforce the deal or walk away, whichever the artist prefers.
COMPENSATION IN CASE OF LOSS OR DAMAGE
If a work is damaged or lost while in the dealer’s possession, the dealer is responsible for that loss, unless he or she used the “highest degree of care” to protect the art — a significantly high bar to meet. Assuming the dealer failed to use the “highest degree of care,” the dealer must reimburse the artist for the value of the work, which is the retail value specified in the parties’ written agreement. If there is no written contract, then the artist is entitled to his or her portion of the fair market value of the work, which the artist may argue is significantly higher than the dealer was expecting — another way that the statute subtly punishes dealers for not having written contracts.
PROTECTION IN CASE OF BANKRUPTCY
Something that many artists may not consider when they put their work out on consignment is the danger that, if the dealer goes into bankruptcy or becomes subject to liens, creditors may be able to seize anything in the dealer’s possession — including the artist’s work — and use it to pay off the dealer’s debts. Oregon law specifically prevents this by confirming that creditors of the dealer do not have rights to consigned art, and that title remains with the artist.
TIMELY PAYMENT
As I mentioned above, one of the requirements in the written contract is specifying how quickly the artist gets paid once a piece sells. But in case there is no written contract or the contract fails to include this item, the law has a default setting, requiring the dealer to pay the artist within 30 days of receipt of the money from the purchaser. If the dealer sells a piece on installment, all of the installment payments first go to paying the artist, and only once the artist is fully paid does the dealer get to keep the remaining installment(s) for its commission or fee — again, unless the parties agreed otherwise (yet another incentive for dealers to have written contracts that ensure both sides are on the same page).
PURCHASER INFORMATION
For any sale of art over $100, the artist has the right to know the name and address of the purchaser (meaning that the dealer has an obligation to record this information for all such sales). If the artist makes a written request for this information and the dealer fails to provide it, the artist is entitled to both a court order compelling the dealer to provide the information and a penalty equal to three times the artist’s portion of the retail value of the work.
NO WAIVER, AND ATTORNEYS’ FEES
Unless the statute explicitly says so (like the flexibility to agree on a time for payment other than 30 days), none of these rights can be waived, even if the artist agrees. So a dealer cannot try to include a clause in the consignment contract that says the dealer isn't liable for any damage or loss, or that it has no obligation to provide purchaser names (more accurately, a dealer can, but the provision is void and unenforceable). The law also tries to make it as easy as possible for artists to enforce these rights by providing that, if an artist files a lawsuit to recover what it is owed from the dealer and wins, the artist is entitled to have the dealer pay for his or her attorneys’ fees and costs (and vice-versa if a dealer has to defend itself against a non-meritorious lawsuit).
NO SECRETING OR MISAPPROPRIATING WORK
Finally, it is not only improper, it is criminally illegal for a dealer to willfully and knowingly secrete, withhold or take a consigned work or the proceeds of a sale for the dealer’s own use or for someone else’s — meaning that the dealer cannot take a piece on consignment and then keep it in a closet, hang it in their office, take it home, or give it to a friend. Doing so (at least intentionally) is a Class C felony, subject to up to five years in prison and a maximum $125,000 fine.
As you can see, Oregon laws go a long way towards protecting artists who entrust their work, and in some cases their livelihood, to others to display and sell. At the same time, the law imposes several obligations — and in some cases, significant potential penalties — on those who accept these works.
Protecting "The Creative Middle Class" - The Case Act
The dirty little secret of copyright law has always been that enforcing your rights means being willing to plunge into the world of litigation — and all of the potential expense and aggravation that journey may entail. There are of course ways to minimize the burden of litigation. For example, timely copyright registrations may allow you to recover your attorneys’ fees, good demand letters help to resolve a dispute before litigation is filed, and a well-designed legal strategy minimizes costs and stress if a lawsuit becomes necessary. Nevertheless, many creators who are legitimately losing money or creative control over their work to infringers still feel compelled to shrug it off because the costs of litigation just aren’t worth it, economically or psychologically.
A new law may change this calculation. The CASE Act (or Copyright Alternative in Small-Claims Enforcement Act of 2019) would create a kind of small claims court specifically for certain types of copyright infringement actions - a remedy for the “creative middle class,” according to the bill’s sponsor, Representative Hakeem Jeffries (D-NY). The bill was overwhelmingly passed by the House in October, and is currently awaiting a vote before the Senate, where it has already received the approval of the Senate Judiciary Committee.
The Pros and Cons of CASE
In theory, the streamlined nature of the new proceedings would allow copyright disputes to be resolved both faster and cheaper than a traditional Federal lawsuit. Instead of a court, cases would be filed with a special Copyright Claims Board (or “CCB”) created within the Copyright Office; and instead of a judge, cases would be decided by a group of three copyright experts appointed by the Library of Congress. Discovery (which can drag on for months and costs tens or even hundreds of thousands of dollars in a traditional case) would be limited, and the lawyers and parties can participate in hearings remotely rather than travel to court in person for a trial.
In keeping with the “small claims” nature of the process, the remedies available to the copyright owner are narrow. Statutory damages would be capped at $15,000 per work, and $30,000 total (by contrast, statutory damages in a traditional case can reach $150,000 per work with no upper limit on total damages). Attorneys’ fees would also only be recoverable in extraordinary cases, which further cuts in to the potential recovery. And the Board cannot issue injunctions (orders to the defendant to permanently stop using the work), unless the defendant voluntarily agrees to stop as part of a settlement. These limits will in most cases provide an economic incentive for both sides to be efficient and minimize legal fees — after all, there’s little reason to spend tens of thousands of dollars on attorneys’ fees when there is, at most, $30,000 at stake.
Similar to arbitrations, the ability to appeal the CCB’s decision will also be limited to extreme cases, such as fraud or corruption, or issues that were clearly mistakes (presumably, things like typos or accounting errors in the written decision).
Perhaps most importantly, participation in the new process is voluntary - copyright owners can still file a traditional lawsuit if they prefer, and defendants can opt out at the beginning of the case if they would rather take their chances in front of a judge or jury.
Although the CASE Act enjoys rare bipartisan support in Congress and the backing of a host of copyright and artist support groups, several criticisms have been leveled at the CASE Act by groups including the Electronic Frontier Foundation and the ACLU. Most notable is the accusation that the Act will lead to a flood of lawsuits by copyright trolls or owners going after “innocent” infringers who are using copyrighted material in purportedly innocuous ways, such as social media posts or internet commentary. On the other hand, one of the biggest clubs a copyright troll can wield is the threat of large statutory damages and recovery of attorneys’ fees, both of which are eliminated under the CASE Act. In addition, because defendants can opt out of the CCB and force copyright holders into Federal court, a claimant can’t take it for granted that a lawsuit will be either cheap or easy.
Who It (May) Help
The advantages and disadvantages of the new procedure make it most useful for “the creative middle class” that Rep. Jeffries described — independent artists and small creators who have a legitimate copyright grievance that just isn’t worth the expense of a full federal lawsuit. In cases involving one or two infringements and just enough damages to be worth the time and expense of the expedited procedure, the CASE Act may provide a welcome alternative. However, the CASE Act isn’t going to be the answer for everyone or every situation.
The lack of injunctive relief means that any infringement which is likely to continue — such as disputes between competitors, or involving serial infringers — will still need to be resolved in Federal court, unless you like returning to the Board every few months. The cap on damages and lack of fees recovery means that disputes involving multiple works or significant economic damages are still probably better off handled through a traditional case. The possibility of a monetary award still matters little if the defendant is judgment proof. And, of course, the right of defendants to opt out means that you may end up in federal court even if you try to file with the CCB.
A New Option Means Opportunity
Even with the potential disadvantages, if the CASE Act becomes law it will, if nothing else, add a new tool in the toolbox for independent artists and creators who want to enforce their rights, particularly if the value of the infringement doesn’t make it economically viable to go through with a traditional lawsuit. And more options means more opportunities to find a creative legal solution and strategy for protecting your work.