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Making a CASE for the “Small Claims” Copyright Claims Board

Copyright is a federal right granted under the Constitution. Copyright registration is administered through the Copyright Office.

Copyright protects creative works from unauthorized copying, distribution, performance, display, and creation of derivative works. Copyright protects human authors and owners of creative works. These works can fall into several categories including, but not limited to, visual, textual, and musical. When you or your business creates or uses any of these creative works you may discover that 1) your creative work is being used without your permission, or 2) someone else may accuse you of infringing their creative work.

Before passage of the CASE Act in 2020, copyright disputes were heard only in federal court. The CASE Act created a new venue, the Copyright Claims Board (CCB) which went live in June of 2022. To bring a case before the CCB you must either have a copyright registration or have filed a copyright application. Ideally, the CCB provides owners and users of copyright-protected material with a vehicle to resolve disputes more efficiently, and more cheaply, as compared to federal court.

The CCB is similar to a small claims court, but with several important differences. First, while the CCB is within the Copyright Office, all proceedings are conducted remotely. A small claim in the CCB is defined as up to $30,000 in damages. One of the more important differences, is that the CCB is completely voluntary. In other words, those who bring a claim can choose to resolve a copyright dispute in federal court or before the CCB, and those defending against a claim can choose whether they want to participate in the CCB proceeding or opt-out.

The first claim submitted to the CCB was on June 16, 2022. Since then, almost 500 claims have been submitted. As of this writing, only two cases have had a final determination. More than a third of all cases submitted have been dismissed as being deficient before being served on an opposing party and several others have been dismissed for failure to timely file proof of service on an opposing party. About 25 respondents have opted out of CCB proceedings and about 12 respondents have received second warning notices of an impending default judgment.

The first case to reach a final determination, Flores v Mitrakos, received that determination in February of this year. See, No.22-CCB-0035. There, the parties jointly requested dismissal from the CCB and agreed that the Respondent (defendant) would retract his false takedown notice by a certain date.

The second case to reach a final determination, Oppenheimer v. Prutton, was also decided in February of this year. See, No. 22-CCB-0045. There, the case was jointly referred to the CCB from federal court. The case related to the unauthorized use of an aerial photograph of a courthouse by an attorney on his website. The CCB found in favor of the photographer and awarded him $1000. The specifics of the case caused the CCB to award damages on the low end of the range of possible damages. In the CCB, statutory damages range from $750-$15,000 per work.

While there aren’t a large number of decided cases at this time, the CCB’s activities thus far do provide some guidance. Before deciding to use the CCB for “small” copyright claims, consider these 10 things:

1. Designate an IP attorney: Appointing your IP attorney as an agent to the CCB, helps you to avoid missed correspondence and default judgments.

2. Cost Savings: The fee to file a CCB claim is $100. An attorney experienced in copyright can help you file a CCB claim, and the cost will be orders of magnitude lower than the cost of litigating in federal court, which is about $300,000.

3. Time Savings: Limited discovery and other procedural approaches by the CCB reduce the time to final determination. Most CCB cases are completed in about 9 months, as compared to two years in a federal court.

4. Copyright-Specific Tribunal: The CCB is made up of three members, each of which have extensive experience in copyright law. This is in contrast to federal court judges who are generalists.

5. CCB decisions are binding: A CCB case can settle a dispute quickly and inexpensively. It is binding on the parties and cannot be re-litigated in federal court. However, a CCB case is not precedent for future CCB or federal court cases.

6. Opt Out Process: If a respondent fails to opt-out within 60 days, an CCB proceeding will begin. If the respondent does not respond in a timely manner, they may receive a default judgment. If a respondent opts out, the case may still be filed in federal court.

7. Limited Appeals: A CCB decision can be vacated only in limited cases such as fraud or the CCB exceeding their authority.

8. Removal from Federal Court: If both parties agree, a federal court case may be removed to the CCB resulting in a cheaper and faster resolution.

9. Damages are capped: Whether the damages are actual or statutory, the maximum before the CCB is $15,000 per work, or a total of $30,000. The CCB only awards attorney’s fees with a showing of bad faith. This is in contrast to uncapped damages, attorneys fees, and statutory damages up to $150,000 per work in federal court.

10. Injunctive Relief: Unlike federal court, the parties must both agree to injunctive relief before the CCB. The injunctive order can still be enforced by a federal court.

The CCB appears to be doing what it set out to do, which is to expediently dispose of deficient cases saving time and effort that would be required in federal court. The CCB may be a worthwhile option for you or your company when faced with a copyright dispute. Work with an experienced copyright attorney to discuss the factors listed above and decide the approach best suited for you and your company.

KPIP Law helps clients identify, protect, and monetize their intellectual property (IP) assets. KPIP Law is a 100% woman-owned small business (WOSB) whose clients include entrepreneurs, experienced business leaders, and artists.

Attorney Kim Peaslee earned a B.A. in Chemistry, cum laude, from the University of Southern Maine, and a Ph.D. in Biophysical Chemistry from Dartmouth College. Kim earned a law degree, cum laude, from Franklin Pierce Law Center (FPLC) in Concord, NH where she was a Merck Patent Fellow and the winner of the Intellectual Property Owners Education Foundation’s Donald W. Banner Corporate Intern Scholarship. Attorney Peaslee is an adjunct Professor at UNH School of Law and is active in the community.

With KPIP Law, rest assured you can feel confident knowing that your case is in the best hands. Get in touch today — we look forward to hearing from you.

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