Copyright Small Claims: Is It Really Enforceable?

by | Mar 22, 2018 | Advocacy, Small Claims Report, Strictly Business Blog

rainbow over Gobi Desert, Mongolia
rainbow over Gobi Desert, Mongolia

© p2photography

There have been some excellent questions in response to my recent post, POV: Small Claims from a Photographer’s Perspective. One in particular stood out as a very important item to address. Mike Klipper, the lawyer who has been instrumental in helping ASMP with the heavy lifting on this bill, provides a response.

Q: Does the current small claims bill being proposed include a path or method of enforcement? Currently in America, small claims suits are pretty much unenforceable. Winning your claim is nice, but it doesn’t mean much if you can’t collect on it. Currently if someone refuses to pay on the judgement rendered against them, the best one can do is file a lien against their property (and that will only pay-off when they finally decide to sell it) or a wage garnishment.

A: HR 3945 [the Small Claims bill] deals specifically with enforcement of judgements rendered by the small claims board. §1407 addresses this very point.

Basically under this provision if a losing party fails to comply with the judgment of the board, the prevailing party can go to a federal district court–either the federal district court in DC or any other district court that has jurisdiction to hear the case and ask the court to enforce the judgment of the board.  If the court issues an order enforcing the board’s judgment, the losing party must pay the winning parties attorneys fees associated with that enforcement action.

 Two points:  ASMP was instrumental in securing two critical changes to this section.
First, as originally drafted the enforcement action could only have been brought in federal district court in DC!  That meant that the photographer who wants to enforce his judgment would have been forced to come to DC and incur travel costs and most likely attorney fees.  At ASMP’s suggestion, that language was changed so that the enforcement action could be brought in a more convenient location.  (It is critical to note here that the parties are not required to appear in DC at the “trial” before the small claims board. Those proceedings are typically going to be held online and no travel to DC is required.  Thus, it would have been very burdensome to require a photographer from Idaho who wins the case via an online proceeding to travel to DC to enforce it.)
Second, as originally drafted the photographer who won before the board and was forced to bring an enforcement action had to foot the bill for that enforcement action.  Again, ASMP’s suggestion to require the losing parties to pay those fees was adopted.  Another big win for small businesses and individual creators.

Here is the current text of this section.

§ 1407. Review and confirmation by district court

“(a) In General.—In any proceeding in which a party has failed to pay monies as required or otherwise comply with the relief awarded in a final determination of the Copyright Claims Board, including a default determination or a determination based on failure to prosecute, the aggrieved party may, within one year of the issuance of such final determination, resolution of any reconsideration by the Copyright Claims Board or review by the Register of Copyrights, or issuance of an amended final determination, whichever occurs last, apply to the United States District Court for the District of Columbia or any other federal district court of competent jurisdiction for an order confirming the final relief awarded and reducing such award to judgment. The court shall grant such order and direct entry of judgment unless the determination is or has been vacated, modified or corrected as permitted under subsection (c). If the United States District Court for the District of Columbia or any other federal district court of competent jurisdiction issues an order confirming the relief awarded by the Board, the Court must impose on the party who failed to pay damages or otherwise comply with the relief, the reasonable expenses required to secure such order, including attorney fees, incurred by the aggrieved party.”