Congress Creates a New “Court” for Copyright Claims: Strategic Planning for Your Rights and Options

New and Dedicated Court for Copyright Claims. Tucked into the appropriations and COVID-relief bill passed by Congress in the final days of 2020 is a major amendment to the U.S. Copyright Act. It lays the foundation for a streamlined “small-claims court” to hear and decide legal claims of copyright infringements. It is a mixed blessing for all parties, with numerous complications. Because the new forum makes legal proceedings easier and less expensive to prosecute, it may be a welcome development for many copyright owners who find copies of their works proliferating on the web. However, for anyone launching a website, producing innovative videos, or crafting multimedia educational resources, even minor infractions might attract legal challenges. The law provides for formal service of notice and allows liability demands up to $30,000. Whether you are asserting claims or defending your actions, this is a good time to begin thinking strategically about the many implications of the new law. The intellectual property attorneys at Gipson Hoffman & Pancione are prepared to help clients anticipate these latest developments and more (contact information below).

Initiating a Copyright Action. In summary, the bill establishes a Copyright Claims Board to be based within the U.S. Copyright Office and staffed by three Copyright Claim Officers, and the Board will render determinations on claims, counterclaims, and defenses. A proceeding begins with filing a claim and serving notice on the respondent, who then has 60 days to reply. The reply can include available defenses, such as ownership disputes, expiration of the copyrights in question, and fair use. As you can surmise, the Board will need to evaluate some of the most nuanced issues of copyright law.

Options and Challenges for the Parties. To navigate this terrain, the Copyright Claims Board will hire staff attorneys and have the authority to request evidence and render decisions, including awards of monetary damages subject to various caps, but ultimately limited to $30,000 per proceeding. The new law is thick with details, and many of its benefits and pitfalls will be clarified only through years of experience. For claimants, the new Board might be simpler and more economical, but the available remedies are limited, and attorneys’ fees will seldom be recoverable. For many respondents, even the limited damages may be prohibitive, and expert legal advice may be necessary to handle complex defenses and counterclaims. For all parties, the constitutionality of the Board may be in doubt. In an effort to survive a constitutional challenge, respondents may voluntarily opt out of the new system, forcing the copyright owners to consider the burden of filing a conventional copyright lawsuit in federal district court.

Strategic Planning. The Board will not open for business until the end of 2021 or later. In preparation, clients who create or own rights in original works should consider securing and registering copyrights for enforcement in court or before the new Board – and they should watch for the expiration of the statute of limitations, if infringements already have occurred. For anyone clipping, posting, sharing, or using copyrighted works in any manner, this is the time to review uses and evaluate anew the scope and application of fair use and other exceptions and defenses. For all parties, strategic options merit careful consideration at all stages, whether you are filing new claims or have been served with a notice of infringement demanding your appearance before the new Copyright Claims Board.

For More Information. If you have questions about any aspect of copyright law, including the new Board, feel free to contact the experienced intellectual property lawyers at Gipson Hoffman & Pancione.

Kenneth D. Crews
Email: kcrews[at]ghplaw.com
Phone: (310) 556-4660
Website: www.ghplaw.com