|Not only does legislation take a long time to gestate, so often we don’t even know it happened unless and until someone reads a thousand or pages of fine print in seemingly unrelated legislation. You may have heard that the United States Congress passed $900 billion coronavirus relief and stimulus spending package and a $1.4 trillion package to keep the government running through September 2021. Where else would you expect to find the Copyright Alternative in Small-Claims Enforcement Act (CASE)?|
The concept of a small claims resolution process for copyright infringement has been under consideration and subject to negotiations for 14 years. After all, most of the time when copyrights are infringed, the damages are relatively small, and it is difficult to find someone to prosecute the claim in Federal Court, because the cost of litigation is disproportionate to the amount of the claim. The Act essentially creates a small claims process that makes it easier for photographers, designers, songwriters, and other creative folks to protect their work against copyright infringement.
The Act creates a Copyright Claims Board within the Copyright Office that will have the authority to adjudicate copyright infringement claims with damages up to $30,000 unless the defendant receives notice and opts out. The Board may issue monetary awards based on actual or statutory damages. The parties bear their own attorneys’ fees and costs except where there is bad faith misconduct.
Once the matter is adjudicated by the Board, it cannot be relitigated in court of at the Board. The only challenges available are if (1) the decision was a result of fraud, corruption, or other misconduct; (2) the Board exceeded its authority or failed to render a final determination; or (3) in a default ruling or failure to prosecute, the default or failure was excusable. These challenges would be presented in Federal Court. The Act also allows the successful claimant to engage the Federal Court to enforce collection of an award within one year.
You can read the full text of the Act here.
H.R.2426 – CASE Act of 2019
Feel free to contact us for more information on Copyrights, Trademarks, and Entertainment-related issues.
Category Archives: Attorneys
Copyright Fair Use in School
The 9th Circuit U.S. Court of Appeals ruled in favor of a vocal music director at Burbank High School and others that a licensing company lacked standing to sue for copyright infringement for the use of copyrighted sheet music in arranging a show choir performance as to three of four works on the basis that the licensing company only held non-exclusive licenses to the work because it had only received the rights from some, but not all, of the co-owners of the copyrights. As for the fourth work, the Court ruled that the use was noninfringing on the basis that the educational purpose of the use was an enumerated fair use purpose under 17 U.S.C. § 107. The Court also found that the purpose and character of the use, which was transformative, weighed strongly in favor of a finding of fair use.
According to the Court’s synopsis, while the “nature of the copyrighted work” weighed against fair use because the original arrangement of the song was creative, neither (1) the amount and substantiality of the portion used nor (2) the effect upon the potential market for or value of the copyrighted work weighed against fair use, the Court wrote that “it was especially swayed by the limited and transformative nature of the use and the work’s nonprofit educational purposes in enhancing the educational experience of high school students.” The fact was that the music director used only a small portion of the song with portions of other songs to create sheet music for a new and different high school choir showpiece performance. Fair Use!
The Court sent the case back to the District Court to determine the amount of attorney’s fees the defendants should receive, finding that the District Court abused its discretion in denying defendants attorneys’ fees under 17 U.S.C. § 505 because defendants prevailed across the board in the district court and won a ruling on their fair use defense on appeal. Plaintiff’s arguments were deemed to have been “objectively unreasonable, and an award of fees would further the purposes of the Copyright Act.”
TRESÓNA MULTIMEDIA, LLC V. BURBANK HIGH SCH. VOCAL MUSIC ASS’N Opinion available here: https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/24/17-56006.pdf.
Trademark Trial & Appeal (TTAB) Board Tips
The United States Patent and Trademark Office (USPTO) has released its “ADVANCED PRACTICE TIPS FROM THE TTAB,” tips for the Trademark Trial and Appeals Board (TTAB). It provides “an overview of operations with which those appearing before the Trademark Trial and Appeal Board (TTAB or Board) are most likely to interact.” The link is here: https://cdn2.hubspot.net/hubfs/454850/TTAB%20Tips%202017%20Revised%20Feb.%207-1.pdf.
HIRING: IP & ENTERTAINMENT ATTORNEY
Our Santa Barbara firm is growing, and we are looking to immediately hire a full-time, career oriented attorney with 3 – 14 years’ experience to join the team. We have an eclectic practice, the foci of which are entertainment (filmed entertainment, music, publishing, and licensing), non-patent intellectual property (trademarks, copyrights, and trade secrets), Internet, business, and litigation in state and federal courts. We work with entrepreneurs, start-ups, and maturing companies, serving as outside general counsel, and represent a wide variety of businesses, including multi-media companies, music publishing companies, film and music producers, artists, photographers, songwriters, and others. We are looking for someone wanting a high quality, high energy, low key environment, who values relationships, innovation, and technology; is resourceful; and operates (or is willing to operate) on the principle that “THERE IS NO BOX.” Law review, great writing skills, and/or equivalent problem-solving and collaboration skills are highly valued here. We are willing and able to mentor the right person in any areas that may be needed. A book of business (small, medium, or large) is welcomed, although not necessary. This position is open now. Please let us know if you are the right person or know someone who is. You may send resumes and writing samples to email@example.com. Please view our website at mbergerlaw.com and our LinkedIn profile at https://www.linkedin.com/in/matthewberger/ for more information about who we are and what we do.