The CASE Act of 2020 establishes a new Copyright Claims Board (“CCB”) to hear infringement, noninfringement and misrepresentation claims which meet certain criteria. Generally, the Act provides a less expensive method for harmed parties to assert copyright claims short of filing in federal court.
Remedies available include actual damages and profits, statutory damages and injunctive relief. Works timely registered with the Copyright Office are eligible for an award of statutory damages of up to $15,000 for each infringed work. Statutory damages for timely registered works may not exceed $30,000 in any single proceeding. Works considered not timely registered are eligible for statutory damages of $7,500 per infringed work, not to exceed, however, $15,000 in any single proceeding. For both timely and not timely registered works, statutory awards limitations are exclusive of attorneys’ fees and costs.
Claimants must file an application to register the allegedly infringed work prior to filing with the CCB. Although issuance of a copyright registration certificate is NOT required to initially file, registration IS required for damages to be awarded.
Why does it matter?
Lower value small claims may now be asserted more easily. For those seeking small licensing fees for use of their works or wishing to represent themselves, the CASE Act will help.
The CCB will be staffed with attorneys who may be available to help claimants evaluate or state their claim. This may allow certain claimants to file on their own without hiring a personal attorney; it should be noted, however, that CCB staff attorneys may or may not provide more than general guidance to the claimant and may or may not be available when needed.
Defendants/Respondents in CCB claims have the right to opt out of the proceedings (within 60 days) and to instead have the claim heard in federal court. If so, the claimant will have wasted time filing with the CCB and will still need to move forward in federal court, which will benefit large corporate defendants.
What to do?
- Get Registered. To take full advantage of the CCB statutory damages awards, copyrighted works need to be timely registered.
- Audit Content and Contracts. Don’t be an easy target for claims, meaning, review content and related contracts to ensure proper licensing or originality of content and add a layer of indemnity to contracts before small claimants can take advantage of new easier filing of copyright complaints against you.
– Pam Gavin & Elizabeth Sewell
(This is not intended as legal advice. Contact a lawyer for assistance in your particular situation.)