For a very long time, copyright holders who were not savvy or long-sighted enough to sock away a few doubloons every month to fill their litigation treasure chest faced a severe dilemma when the time came to decide whether to pursue a violation of their copyrights in court.
It has happened innumerable times; a copyright holder has her rights infringed, and blatantly, and there is no doubt that she now holds a colorable claim. But, the lawyers tell her, copyright litigation is the exclusive domain of the federal courts, and litigation in these courts is expensive, with most cases costing at least $200,000.00 in fees to reach trial, and many cases costing a multiple of this amount. So, what is the copyright holder with the colorable claim to do?
Unfortunately, the options have historically been limited. She can seek the assistance of a pro bono attorney, or an organization like the great California Lawyers for the Arts, or attempt to bring the case in propria persona. Or, if she is lucky, she will connect through her network with an attorney who will handle the case on a reduced fee or contingency basis. This latter option is called the “cousin-of-a-friend” approach.
How Checkbox’s ‘Legal Front Door’ Can Transform Your Workflow
Leveraging agentic AI to triage, prioritize, and automate the law department inbox.
The problem with this connected kinsman approach is that the lawyer who is willing to handle the case on the cheap or as a favor is one who most likely has little experience with copyright law or the federal courts or both. And there are so many complexities, pitfalls, and nuances in litigating a copyright case in federal court that an attorney lacking in applicable experience may actually be doing the client (and all other artists, as later explained) a profound disservice in bringing the claims.
This is true for a number of reasons. The first is probably the most bizarre and counter-intuitive and has to do with the recovery of litigation costs and attorneys’ fees. The Copyright Act was promulgated to encourage the creation of new and diverse artistic works and to incentivize the protection of those rights by, among other things, allowing the artist to potentially recover the costs and attorneys’ fees she incurs in bringing her infringement suit.
To so recover, the copyright holder, usually an artist whose work has been used without permission, must first prevail in the litigation, which makes sense, and second, must have filed a one-page form with the U.S. Copyright Office to register their work before the copying at issue in the case took place. This second factor, a mere technicality, operates to deny the right to recover costs and attorneys’ fees to the lion’s share of independent artists and small businesses. And also has the unfortunate effect of dissuading attorneys from taking otherwise meritorious cases on a contingency basis.
What is even more outrageous, given the Copyright Act’s supposed protections for creators, is that this same attorneys’ fee recovery provision in the Act can be used by the corporations or other defendants who have allegedly copied a work without permission to recover its costs and fees if it prevails (on the merits or even on a technicality in some cases). And, bizarrely, the draconian registration requirement does not apply to copyright defendants.
Protégé™ In CourtLink® Explains The Whole Case Faster
Designed to reduce manual docket work by prioritizing what litigators need most: on-demand full docket summarization that explains the whole case to date, followed by on-demand document summaries for filing triage, and AI-powered natural language searching for faster search and retrieval.
This inequity is a huge problem, particularly because the Copyright Act was intended to incentivize copyright holders to enforce their rights but, because of the registration inequity, actually does the exact opposite. Exacerbating matters it that most defendants in copyright infringement cases are large corporations or studios or otherwise deep-pocketed litigants with access to the best and most expensive copyright lawyers in the land.
And, when important copyright issues are litigated at the injunction, summary judgment, or trial stage, with the cousin-of-a-friend doing what they can to prove up the artist’s claims, and the expensive copyright specialist presenting the alleged corporate infringer’s defenses, the inequity in counselor quality and experience often results in case law that disfavors the artist. And this case law is then applied in the next case and the one after that, ultimately resulting in a problematic set of precedential circumstances for the artist.
So, the playing field is often a non-expert cousin-of-a-friend attorney litigating for a low fee on behalf of the artist against a high-priced copyright specialist billing like crazy for a corporate defendant, with case law that more often than not favors the alleged infringer. And, in most cases, the artist will not have a timely registration, so only the corporate defendant will be entitled to seek to recover the staggering attorneys’ fees it has incurred in crushing the artist’s claims. Not the greatest set of circumstances.
Enter the CASE Act of 2017, or H.R. 3945 if you’re feeling statutory. Congress and various administrative committees have toyed with the idea of a copyright small claims court for years, citing many of the reasons discussed above — the cost, complexity, and burden imposed by federal court litigation. But, there had been no progress in this regard until earlier this month, when a bipartisan group of Representatives — including Venice’s own official, Ted Lieu, and, less auspiciously, the recently disgraced Tom Marino — presented the Copyright Alternative in Small-Claims Enforcement Act of 2017, or CASE Act.
This proposed amendment to the Copyright Act would create a small claims court for infringement actions, and would establish a “Copyright Claims Board” to oversee cases that would be streamlined and bound by damages caps of $15,000.00 per infringed work or $30,000.00 total. In theory, this sounds like a very appealing option for content creators without the resources or wherewithal to sustain the impositions of lengthy and expensive federal court litigation. But, in looking more closely at the proposed parameters of the CASE Act, a few wrinkles and cracks quickly appear in the text’s veneer. We will explore those next week.
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 [email protected], and you can follow his law firm on Instagram: @veniceartlaw.