By: Robin Gentry
Good news for copyright holders seeking to enforce their creations! A new copyright law (the Copyright Alternative in Small-Claims Enforcement Act of 2020) has been passed and will come into effect by December 2021.
This new copyright law establishes an administrative agency to adjudicate small copyright claims. Before this law was enacted, copyright holders could only sue in federal court which is often very time consuming and expensive. With this new alternative, if someone has infringed your copyright, you can bring a claim before a three person panel board of copyright experts. In order to qualify for this alternative your damages must be no more than $15,000.00 per work and $30,000.00 per proceeding. The copyright holder then has to choose between either statutory damages or actual damages.
The new small claims act is directed to cases of infringement on the internet, such as when a copyrighted photograph is posted on the internet without permission of the artist. But anyone who has had their work copied in any form may bring a claim. This could be a powerful new method for artists and creators who have been harmed by copyright infringement, but can’t afford the attorney fees necessary to bring a case in federal court.
This new Board will be able to hear and rule on copyright infringement claims, award damages and issue an order that the infringer stop the infringement. The Board will also be able to hear cases involving false takedown notices and cases where an accused infringer asks for an order that she is not infringing the rights of another individual.
There are a few different procedural rules that are different from litigation in federal court. First, a defendant may opt out of having the case heard by the Board. If that happens, the plaintiff can bring the case in federal court. Second, attorneys’ fees are not available to the winning side, as they generally are in federal court. Third, while a party may be represented by an attorney, it is not necessary.
Also, a plaintiff need not have an issued copyright registration to file a case, which is required for suit in federal court. Instead of an issued registration, a plaintiff only needs to have applied for a copyright registration. Moreover, a plaintiff who files a copyright registration more than three months after the infringement begins may still recover a statutory damages award up to $7,500.00 which would not be available in a federal case.
Specific rules for how these cases will be conducted will be issued this year and the Board members will be named. Lilenfeld PC will continue to monitor the developing law and help its clients decide the best forum to stop infringement.