Intellectual Property

Copyright Litigation: Now More Expensive And With More Delay Than Ever Before!

Now litigants and courts will waste untold amounts of time and money on a formality that bears little benefit for anyone.

By  
on

Last week, the Supreme Court dropped a couple of steaming-hot whoppers into the laps of artists and copyright litigators across the United States (artists abroad emerged unscathed, for reasons to be discussed). We wake up this week in a world where copyright cases will take longer and be more expensive to litigate and where it will be more difficult for victorious litigants to recover their now-increased costs.

In Rimini Street v. Oracle, the Supreme Court interpreted the phrase “full costs” in 17 U. S. C. § 505 of the Copyright Act to mean not all costs incurred in the litigation but the full amount of the types of costs enumerated in the generally applicable 28 U. S. C. §§ 1821 and 1920. While it seems surplusage-y to have this reference to “full costs” in the Copyright Act when these other statutes would apply without the reference, the Court found this argument unpersuasive. So, moving forward, do not expect to recover those expert costs should you prevail in your copyright infringement trial.

While this decision will hurt artists, the damage will not be massive in most cases. The second Supreme Court decision from last week, though, is far more problematic and is already being exploited by infringers’ counsel.

Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC addressed the question of when an artist can file suit. The Supreme Court held that an artist cannot file suit until the U.S. Copyright Office approves the artist’s copyright registration. This can take a very long time and can only be mitigable by paying an $800.00 fee to expedite the Copyright Office review process. If you are lucky enough to be an artist outside the U.S. who first published your work internationally, you are exempt from this cost and the whole registration process. But, inside the U.S., you have to sit on your rights and wait more than half a year in most cases for the Copyright Office to rubber-stamp the one-page registration document.

Together, these two decisions almost tripled the initial costs for a U.S. artist seeking to file a copyright lawsuit and made clear that the larger chunk of those initial costs are no longer recoverable. And the impact has been immediate. Artists used to face a cost of $435.00 to file a copyright infringement case, with that amount comprised of a $400.00 court filing fee and a $35.00 copyright registration charge. Overnight, assuming the artist does not want to wait more than half-a-year for the Copyright Office to act, that cost ballooned to $1,200.00. While this sum is not enormous, it is enough to dissuade independent artists from filing suit.

And, in Circuits where courts historically allowed artists to file suit after they had submitted the registration paperwork but before the Copyright Office acted (which made sense because it mattered little whether or not the Copyright Office approved the application — in either situation, the case could proceed), infringers’ counsel are spitting out reams of letters citing Fourth Estate and demanding that cases be dismissed and that the artist wait to enforce their rights until after the Office acts on the registrations for the works at issue. This is, of course, a delay in the administration of justice that serves nobody’s interests other than the infringers who do not have to defend the claims until a later date.

The negative impact of this decision on artists is illustrated by a recent dispute that is still bubbling online. A creative had her content stolen and published by a web brand to their commercial social media page. She filed the requisite DMCA takedown notice and the material was removed from social media. But, the website then filed a false DMCA counter-notification to have the material reinstated, claiming that the removal was in error when it was not. The material was then reinstated by the social media platform and the creative was advised that if she wanted her material removed she would have to present proof of a complaint being filed in court. Before Fourth Estate, she could have filed her copyright registration application and her complaint on the same day and immediately sought relief. Now, she has to wait until the Copyright Office acts on her application, a delay that can take weeks if she can afford the $800.00 expedite fee and months if she cannot. All the while her material is being exploited with impunity online.

Sponsored

The solution to all of this insanity and inequity is simple: remove the requirement that a work must be registered with the Copyright Office in order to file a complaint regarding the work in court. This is already the case for international artists and there is no reason why the same protections should not be afforded to U.S. artists. The whole registration process was a great way for the Library of Congress to amass an amazing collection of Ben Franklin tomes hundreds of years ago, but it is wildly outdated and serves no purpose today. We revised the Copyright Act in 1976 to remove most formalities and lessen the friction for copyright litigants. But, today, these litigants and the courts waste untold amounts of time and money on a formality that bears little benefit for anyone.

And many artists will still register their works even without the requirement, as registration provides additional damages and the right to recover attorneys’ fees. But, doing away with the registration requirement will encourage more artists to enforce their rights in their work, which is one of the underlying principles of the Copyright Act, and will conserve precious resources that are now being wasted on technicalities that have no real reason to exist.

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

Sponsored

Topics

, ,