Creators Get a New Weapon to Protect Copyrights

A New Online Board to Punish Infringers

If you are a creative person, copyright protection is important. It gives you the right to prevent others from copying your work, which is a valuable right that can be used, sold, or licensed. This article discusses the enforcement protection afforded under the Copyright Alternative in Small Claims Enforcement Act of 2020 (CASE Act).

If you are a creative person, copyright protection is important. It gives you the right to prevent others from copying your work, which is a valuable right that can be used, sold, or licensed.

The good news is that copyright protection is automatic. You do not have to do anything. But you should register your copyright with the United States Copyright Office. Copyright registration is required before you can enforce your copyright. It also allows you to elect statutory damages if you register within three months of publication, or before your copyright is infringed. Statutory damages are huge—$750 to $30,000 per infringement, up to $150,000 for willful infringement—at the court’s discretion. You can also ask the court to order the infringer to pay your legal fees.

More good news for you, you can register your copyright online by simply completing a form, paying a fee, and uploading a copy of your work.

Now for some not so good news: the law requires you to sue infringers in federal court. Federal courts can be intimidating, complicated, and slow. Typically, a lawyer must be hired. This results in many copyright owners not pursuing their rights.

What you need is a quick, efficient, and inexpensive way to recover damages for copyright infringement. You need a place to submit your charge of infringement, collect damages, and get an order to stop the infringement.

This year, you may get what you need. There will be a new board that takes effect at the end of the year, providing an alternative to federal courts.

The Copyright Small Claims Enforcement Act

The Copyright Alternative in Small Claims Enforcement Act of 2020 (CASE Act) was enacted as part of the Consolidated Appropriations Act of 2021 in late December. The CASE Act requires The United States Copyright Office to create a Copyright Claims Board (CCB) by December 27, 2021 to make decisions on copyright infringement damages. One of the huge benefits is that everything is supposed to be done online.

Creators give up some rights by not going to federal court, but the new CCB should provide enough advantages to balance out the loss.

What you need to know

• You can collect actual damages of up to $30,000.
• You can collect statutory damages of up to $15,000 per infringement, up to a maximum of $30,000 per case.
• Copyright registration is required to get an award. The minimum to start the process is an application to register your copyright.
• If you register your copyright within three months of publication, or before infringement, then you can take advantage of full statutory damages of $15,000. If you fail to register by this deadline, you can only get damages of up to $7,500.
• The board cannot order injunctions. But, if the infringer agrees to an injunction, the board will consider this in awarding damages.

The disadvantages

• The proceedings are voluntary, and the defendant can opt-out. If they do, your only recourse is federal court.
• The statutory damages are less than what you might be awarded in federal court.
• The board cannot award attorney fees unless there is a showing of bad faith, and then the maximum is $5,000. Federal courts have the discretion to award all your legal fees.

Creators Should Register their Important Works

If you have works that are valuable, you should register them within three months of publication to take advantage of statutory damages. You do not need to register everything that you create, but you should register the important works. Statutory damages are important because proving actual damages can be difficult.

For example, if you have images, the copyright office allows you to register up to 750 images in one application. If you have a blog, consider combining them in a “book” and register several at once. Videos can be registered as well. This is just a short list, the copyrights that you have may extend to many other valuable assets.

What is the Benefit to Creators?

The CASE Act provides a tribunal that can make decisions on copyright infringement and damages outside the federal courts. Depending upon the requirements that are established, it should be easy, less expensive, and a better path than federal court.

The only problem is the opt-out provision. The CASE Act allows an infringer to opt-out of the proceeding within 60 days. If they opt-out, you must proceed in federal court.

A strategy for some will be to opt-out. This forces you to file a federal lawsuit. This goes against one of the main reasons for the CASE Act: to provide a simpler avenue to those who need it the most. But, to give an incentive to infringers not to opt out, damages are capped at $30,000 and there is little likelihood of having to pay the other side’s attorney fees.  

The Takeaway

The use of creative works without permission takes valuable property from the creator. If you are a creator, register your copyrighted works. They must be registered for you to take advantage of the CASE Act or the federal courts. If someone infringes, and you want a potentially faster route, give CASE a try. The worst case is that the infringer opts-out and you must go to federal court. However, the courts are encouraged to award attorney fees, so that may be a good option.

The new CCB gives creators a faster, simpler, and cheaper way to get damages for copyright infringement. The online proceedings will give all creators a convenient way to protect their works. Take advantage of this new tool by registering your copyrights today.

If you would like to follow developments regarding the CCB and other intellectual property topics, subscribe at www.ipguy.com/ip-blog. If you have questions about copyrights, or intellectual property in general, e-mail Bill@IPGuy.com.

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William H. Honaker, BSME, JD, of Dickinson Wright, has over 30 years of experience and extensive knowledge and expertise in all aspects of patent, trademark, trade secret, and copyright matters including litigation in a broad range of technologies/industries. For his clients, many of which regularly land on the annual Fortune 500 list, Mr. Honaker evaluates patents, trademarks, and copyrights along with advising clients on the protection of inventions, trademarks, and copyrightable subject matter. He is a highly sought-after IP attorney in part due to his proprietary client communication and project management system, The Harmony System™.

Mr. Honaker can be contacted at (248) 433-7382 or by e-mail to whonaker@dickinsonwright.com.