On Sunday, December 27, 2020, the President signed into law a bill that includes the Copyright Alternative in Small Claims Enforcement Act (the “CASE Act”). This enactment marks the culmination of a decade-long effort by ASMP and others in the creative community to create a venue where photographers and other creators can protect their rights. Read on to learn about the CASE Act, and know that ASMP will be leading the way in helping this new forum become a reality through education, information, and strategy. The is much to say about the CASE Act, but here is a quick primer on the basics.
The purpose of the CASE Act is to provide an avenue for photographers and other copyright owners to pursue infringers without having to file a lawsuit in federal court. Court costs frequently skyrocket beyond what any individual can afford (often upwards of $300,000.00), and lawsuits can take many years to pursue. This means that creators and small business owners have been forced to give up the fight against infringers simply to protect their livelihoods. This has been a monumental roadblock given that creators’ livelihoods depend almost exclusively on the ability to monetize their intellectual property. Now that the CASE Act has passed, however, creators will now have the opportunity to protect their creations by pursuing infringers outside of the court.
THE OFFICERS AND THE PROCESS
The CASE Act calls for the U.S. Copyright Office to create a team of specialized “copyright claims officers”. These officers are comprised of attorneys with ample experience in areas of copyright infringement, litigation, and alternative dispute resolution. Whenever a claim of infringement comes in, these officers will first review it to determine its validity. If valid, the officers will then review the evidence and arguments presented by both parties in order to make a determination regarding the infringement. A determination in favor of the copyright holder potentially carries remedies such as requiring the removal of the infringing content and/or awarding statutory or actual damages.
Unlike the statutes driving infringement litigation, the CASE Act puts a tight cap on the damages that a creator can receive. Ordinarily, a copyright owner is entitled to up to $30,000.00 per infringement in a lawsuit against a single infringer. The CASE Act, however, caps damages for all claims against a single individual at $30,000.00 total. Several factors go into calculating the award of damages, including all of the standard factors (the length of time the work was up, money lost, profits and other benefits that accrue to the infringer, the fame of the work, etc.) as well as considering efforts by the copyright owner and infringer to mitigate the infringement.
Importantly, the CASE Act requires that a work be registered (or at least submitted properly and not been refused) with the Copyright Office in order for a claim of infringement to qualify for evaluation. When you register also has bearing on how much you may be able to recover. Creators, this especially means you should register your works with the Copyright Office properly and on time. It is more important than ever! Not only will you be deprived of the benefits of the CASE Act, but you must also have your work registered before filing your suit in federal court.
WILL COPYRIGHT LITIGATION ABUSERS WIN?
The CASE Act has several safeguards in place to help prevent the abuse of the program by those who abuse the copyright litigation system. First, the aforementioned cap of $30,000.00 deters these actors who want to amass large groups of infringements that far exceed $30,000.00. They likely won’t be interested in such “small potatoes”. Additionally, the language of the CASE Act allows the copyright officers to dismiss claims that are filed for a “harassing or improper purpose” and also to award the defendant up to $5,000 in attorney’s fees and costs incurred, or even greater photographer has a history of pursuing such claims. Repeat offenders may even be barred from initiating claims with the CCB for a year if this is shown to be the case. Thus, each of these factors will likely deter copyright litigation abusers and direct them instead to a traditional litigation process.
WILL MEME CREATORS GO BANKRUPT?
There’s a lot of scary articles out there saying that internet users are all about to face fines of $30,000.00 for something as small as sharing a meme. This is highly unlikely. The copyright officers will be evaluating infringements in the same manner a judge or a court would. This means that, when making their determinations, the officers consider matters such as fair use, the audience size, the purpose of the use, the platform of use, any monetization, etc. Thus, it’s very unlikely we will see the teenager down the street facing a $30,000.00 fine for creating a meme and sharing it on Reddit. Remember, the purpose of the act is to protect creators against infringers – not to choke out the free speech of the digital public.
In sum, the CASE Act is a win for content creators everywhere, offering individuals a much-needed avenue of relief. We are looking forward to seeing how the legislation is implemented, and we will be here to answer any questions you may have along the way.