We hosted our first webinar to introduce the RightsClick suite of tools and answer questions from some early adopters. We covered portfolio management, registration with the U.S. Copyright Office, cease & desist letters, and more. Check it out. We want to hear from you!
(Reposted from The Illusion of More by David Newhoff)
The copyright small-claim alternative, adjudicated by the Copyright Claims Board (CCB), was intentionally designed to accommodate pro se participants, meaning that both claimants and respondents can represent themselves without hiring attorneys. After all, the foundation of small claims court or alternative dispute resolution is to save money. And indeed, we are seeing some early pro se claimants file complaints with the CCB, which began accepting claims on June 16th.
It occurred to me while co-moderating a copyright page on Facebook because, of course, social media encourages a habit of saying or asking everything that comes to mind. But one aspect of legal training the copyright owner/claimants, or for that matter defendants, likely do not have is the discipline to keep mum about an active case. Or at least what should and should not be discussed publicly.
Asking questions or making statements about administrative procedures related to the CCB are safe topics to discuss in public, but parties to a case should remember that it is a legal proceeding with a discovery process. That means anything you say about the facts pertaining to the case itself—including intentions, timelines, beliefs, etc.—may be discoverable and may be entered into evidence by the opposing party. And announcing, griping, gloating, or just describing these matters on social media makes discovery very easy for the opposing party.
This is not to suggest that either claimants or respondents are going to lie or have much to hide of any relevance to a typical CCB case. But if you are a party on either side, it is just good practice to do what an attorney would tell you to do and simply not talk about the case publicly until it’s resolved.
Keeping this discipline could prove difficult for some. Both alleged infringers and anti-copyright ideologues are known to at least insult, if not harass, copyright owners looking to enforce their rights. “Greedy” may be the kindest thing someone calls you, but don’t take the bait, don’t feed the troll, and don’t talk about your case until it’s over. By the same token, if you’re the claimant and you’ve filed a CCB claim, it’s probably not a good idea to also engage in that odd form of digital-age justice generally called “shaming.”
The copyright antagonists want to see the CCB fail. As copyright owners and advocates, we want the small-claim alternative to work, and work in a serious and fair manner grounded in the merits of claims and defenses. As such, both for your own sake and the overall effectiveness of a brand-new system, if you are party to a claim, it’s a good idea to exercise some social media discipline and keep most of the conversation about your case to yourself.
Any work created in the United States after January 1, 1978 is automatically protected by copyright law. BUT there’s a catch. If your work is not registered with the Copyright Office, you lose key enforcement tools. And if the party who infringed your work knows this, you lose leverage in trying to negotiate a settlement.
But if you look at it the other way, registration of your work with the U.S. Copyright Office is your legal backstop. It provides an avenue for litigation, which usually serves as a reason for settling out of court. It’s simple math. An infringer is more likely to pay a settlement rather than pay a lot more to defend himself in a case he probably won’t win. Ask any copyright attorney what they want most from creative professionals, and they will probably say that they want everyone who intends to protect their works to register them BEFORE those works enter the market in any form.
Register Right Away
The best time to file a registration application with the Copyright Office is as soon as the work is done and before it enters the world — even social media. In addition to obtaining full protection for the work, there are certain financial advantages to registering right away.
For instance, groups of works that are not yet published can be registered in bundles of 10 per application–or up to 750 per application if they’re photographs. And since the meaning of “published” confuses a lot of people, registration before the works go anywhere is an easy way to be sure they are not published.
You can register works directly at the Copyright Office, but many people find the Copyright Office website clunky and confusing. As a RightsClick subscriber, our software will walk you through all the key information you need, help explain the technical terminology, and submit the application to the Copyright Office for you. At this time, we facilitate many common registration types (see chart below).
RightsClick charges a service fee to process your application, but our fees are much lower than other registration services. Plus, our application interface is easy to use, and once you register by using RightsClick, the registration information becomes part of the data you maintain in your Portfolio.
Considering a Small Claim?
On June 16, 2022, the Copyright Claims Board (CCB) began receiving small claims by copyright owners. Unlike federal litigation, a small claim may be filed for infringement of a work that was not registered at the time of the infringement. BUT a registration application must be filed along with the CCB claim, and the Board will proceed with the claim after the Copyright Office has approved the registration. The Copyright Office has also reduced its expedited registration fee to $50, if the service is requested in conjunction with a CCB claim.
|Registration Fees per Application||USCO||RightsClick||Total|
|One Work by One Author (no limit of claim)||$45||$15||$60|
|One Work by One Author (w/limit of claim)||$65||$15||$80|
|One Work Made for Hire||$65||$15||$80|
|Group Photo Applications of <100 titles:||$55||$15||$70|
|Group Photo Applications of ≥ 100:||$55||$30||$85|
|Group of Unpublished Works (max 10 per application)||$85||$15||$100|
|Work by More Than One Author||$65||$15||$80|
Watch our videos demonstrating the registration process with RightsClick..
What’s a Work Made for Hire? See our Glossary.
David Newhoff, copyright advocate, author, writer, and co-founder of RightsClick, Inc, appeared on this week’s episode of Employment Law Today hosted by Eric Sarver, Esq. David shared his knowledge, tips, and resources for copyright protection – including guidance for creative professionals.
TalkRadio.NYC streams live on Tuesday evenings, 5pm to 6pm (EST) and is posted on Apple Podcasts, Spotify, Stitcher, Google Play, and Amazon.
The Copyright Claims Board will begin receiving claims on June 16, 2022, and we are working to release the RightsClick CCB tool as soon after that date as possible. Our goal is to make it easy for busy creative professionals to file and manage a copyright small claim — or more than one claim — from within the RightsClick suite.
Basic Facts About the CCB
- The governing body (court) is the Copyright Claims Board, which is administered by the U.S. Copyright Office under the authority of the Library of Congress.
- Defendants (called respondents) can opt out of participating in the small-claim adjudication. If they do that is the end of the matter. But the claimant can still file a lawsuit in federal court.
- Neither claimants nor respondents are required to travel to the CCB to participate.
- A claimant does not need to hire an attorney but is responsible for complying with the administrative rules. This will include serving notice to the respondent (see below).
- The respondent may be an individual or a business entity but must be located in the United States.
- If the infringed work is not already registered, a registration application must be filed prior to submitting the claim. The CCB will effectively pause the proceeding until the registration is approved.
- The Copyright Office is offering a reduced fee of $50 for expedited registration, if requested for the purpose of a CCB claim.
- The maximum damage award for a single case is $30,000 (see details below).
- If a claimant loses a case at the CCB, he/she may appeal to the Board but may not retry the same claim through federal litigation.
- The CCB is a legal proceeding with penalties for perjury, misrepresentation, or abuses of the system.
- Overall, a DIY claim that proceeds to resolution will cost about $300 in fees, including simultaneous registration of the work at issue.
- See complete rules at ccb.gov. or more details at Copyright Alliance.
Claim Process Overview
You may file and proceed with a small claim without hiring an attorney by visiting ccb.gov. But you can also use the RightsClick software to help prepare your claim as soon as the CCB tool is activated. It designed to make preparing and submitting a claim easier and to help you keep track of the steps and deadlines along the way. You will even be able to serve process from within RightsClick.
- As a RightsClick customer, you identify the Title in your portfolio, which has been infringed and run an Infringement Assessment (see instruction videos). This captures and organizes most of the information needed to file a CCB claim.
- Next using the CCB tool, you select the Assessment you created, answer a few more questions specific to the small claim process, click submit, and pay the initial filing fees.
- Initial Filing: $40 CCB filing fee plus a $25 RightsClick fee for processing. If the respondent does not opt out and the case proceeds, the CCB requires another fee of $60 to proceed with the adjudication of your case.
- Once the CCB clears your claim for service, they will email you documents to serve upon the respondent. You have 90 days from the receipt of these documents to show proof of service to the CCB. (See links below regarding certain service options and limitations).
- You will be able serve notice on the respondent from within the RightsClick CCB tool. The average server fee is $80-120 depending on location of respondent. (Expedited and other services available for higher fees).
- Once you receive proof of service, you must submit this to the CCB within one week.
- The respondent has up to 60 days to opt out, otherwise the case will proceed and both you and the respondent will need to take further action, including providing other materials (e.g. evidence) as requested by the CCB. If the respondent neither opts out nor responds, the case may proceed.
- See video webinar answering many questions about the CCB.
As with any other type of lawsuit, you as the claimant are required to have physical documents handed to the respondent notifying them of your complaint filed with the CCB. The rules governing service of process vary throughout the country.
RightsClick is collaborating with a national process server to integrate their application into our system for our customers’ convenience. This process server’s success rate is 92% with most respondents served within 3-5 days.
- $15,000 per work infringed with a total $30,000 maximum for a single case, if the infringed work(s) was/were timely registered.
- $7,500 per work infringed, with a total $15,000 maximum for the case, if the infringed work was not timely registered.
- You will be asked when you file a complaint whether you are asking for an amount of $5,000 or less. If so, you can choose a simpler and faster process.
The amount of damages available in a case depends on when the work was registered with the Copyright Office. A work is “timely registered” if it was registered with the Copyright Office either:
- Within three months of date it was first published, OR
- Prior to the date the allegedly infringing use started.
The effective date of registration is the date the application was submitted, which may be several weeks or months prior to the receipt of a certificate and registration number.
For decades, independent creators were given the copyright tools that suited others’ needs – an expensive one-size-fits-all option of suing in federal court, subject to timing requirements for registration that took away key remedies. Finally, Congress has enacted a small-claim option designed especially for independent creators. And the anti-copyright crowd is hoping they can trick you into not using it.
It took a decade to get the small claims law, known as the CASE Act, through Congress. Every step of the way the anti-copyright crowd used scare tactics and disinformation to delay, oppose, and try to kill it. Now, when the small claims process — the Copyright Claims Board (CCB) — is about to begin operating, that same crowd wants to scare you away from even considering this solution to enforce your rights.
They want you to believe the rules are too complicated and bureaucratic to bother filing a claim. Because they would rather you simply give up the whole idea of ever defending your copyright rights.
The CCB was created with the goal that independent creators can file and manage a small claim without hiring an attorney, but it’s still a legal process. Materials must be filed correctly, and there are deadlines to meet and tasks which must be done that are not the ordinary work of a photographer, songwriter, book author, and so on. But don’t be scared! RightsClick is specifically designed to help you.
We have been working hard to launch RightsClick when the CCB begins operations, and we’re finishing the CCB tool in our software suite right now. It will explain the process in plain English, and in a matter of minutes, you will be able to identify the essential information you need to file your claim. And RightsClick will help you track the process so you don’t miss important deadlines.
The whole idea behind RightsClick is to help you make informed decisions about managing and enforcing your copyright rights, and to provide the tools to help you take actions like filing small claims. We want you to be able to do this quickly so you can focus on your real job—creative work. The infringers are hoping you’ll be too busy or too confused to bother defending your rights. And the anti-copyright crowd is eager to help spread that message. We at RightsClick believe it’s time to change that narrative.
The Copyright Claims Board Website https://ccb.gov/
Learn about the Copyright Claims Board from ASMP and Copyright Alliance https://copyrightalliance.org/trending-topics/copyright-small-claims/
Attorney Aaron Moss discusses the complexities of joint authorship as a matter of copyright law and why it is essential to establish these terms before it’s too late.
This webinar hosted by American Society of Media Photographers (ASMP), and moderated by Copyright Alliance, thoroughly outlines the small-claim process and answers many questions you probably have. Video: Learn About the Copyright Claims Board – ASMP