Month: December 2020

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Ah, the Case Act

Assuming that Trump actually signs the huge bill that includes the CASE Act, something that has not yet happened as I post this (and, knowing how crazy he is, it’s not a for-sure thing he will), the much-touted bill will become law. **UPDATE 12.28.20: he signed**
What does it change in copyright law and what does it mean for the average creator? Here’s my take…

First, the CASE Act changes nothing in existing law except that, before, you absolutely had to have a timely registration to get any statutory damages but you can get some without it under CASE; also, you can file a claim without having your certificate as long as you have filed an application for registration. For statutory damages, if you choose to use the small claims system without a timely registration, you can get very limited ones—up to $7500 per infringement but with a maximum per case of $15,000. That maximum limit means, for example, if one infringer used 3 of your photos, you can’t get more than $15K total, even though 3 x $7500 is more than that. As for the application/registration issue, you can file a small claim as long as you have applied for a registration and that application has not been refused. Under existing law, you must have a certificate in hand (or a refusal) to file suit. Under the CASE Act, if the registration application is later refused, the claim is dismissed but can be re-filed later (for example, if the registration is later fixed and then approved, file again). 

Besides those changes, the existing copyright law is left pretty much as it was, only added to with the small claims system regulations. For example, you can still get actual damages and the infringer’s profits attributable to the infringement in the small claims system, you still own the copyright from the moment of creation, the exclusive rights are still the same, the statute of limitations doesn’t change, etc.

What do you give up if you use the small claims system? Besides procedural things like the number of witnesses, discovery limits, etc., which are all lawyer stuff, really, here are the things people need to know they are giving up if they choose to use the new system:

  • The constitutional right to a jury trial
  • Increased damages for willful infringements
  • Appeal in the regular courts (there are appeal-ish procedures, in the small claims system, but no appeals or re-litigation in regular court)
  • Attorney’s fees, except for bad faith situations (notoriously hard to prove up) and then generally limited to $5000.

Also, you can’t bring claims for CMI removal or false assertion (§1202 claims), in the small claims system. That is a big deal, in my opinion, since you’d be giving up a minimum of $2500 (and up to $25K) per violation, and attorney’s fees, if you chose to use the small claims system. While this may change down the road (the bill requires study of issues in three years, including probably the §1202 one), for now, you have to let go of those claims. That is walking away from money.

Here’s the other thing: any party can opt-out, so you could be throwing away at least $100 (filing fee) and likely more (service costs, etc.) often, as your infringers say, “Nope, I won’t do the small claims court—sue me in regular court if you want to bring a claim!” and there is nothing you can do about it. 

But let’s say the opposing party doesn’t opt-out, and it’s a big enough company that it has in-house counsel or is willing to pay an outside attorney to represent it. If you were planning on going without an attorney, you’re going to get your ass kicked, more often than not. No matter how much the powers-that-be try to simplify the system, copyright lawyers simply know more than you and know how to use that knowledge to make the right kinds of arguments to other legal pros (those making the determinations in the small claims system). That means you’ll have to find counsel. If you can only get a maximum of $7500 and probably no attorney’s fees, it’s going to be much harder to find an attorney to take your matter on contingency or your going to have to pay an hourly rate that’ll eat up your award quickly.

I wrote a lot about how I didn’t like the CASE Act, as a litigator and counsel to copyright plaintiffs, in a post more than 3 years ago. My reasons still hold in regards to its final form, today. But if this is the new reality, I will, of course, work within it. As will we all. 

So, here’s what I still recommend for all creatives: apply for copyright registrations as soon as possible after the creation of your works. Just like before, this is still the best thing to do. Post-CASE, it is even more so. If you have a timely registration (effective date is either before the infringement started or the registration is made within 3 calendar months of the first publication of the work infringed—see here for more), and you choose to use the small claims system, the maximums increase to $15,000 per infringement and $30,000 total per claim. That’s double the amount available if the registration is untimely. 

Most importantly, a timely registration gives you much greater leverage to negotiate a settlement without filing a claim at all because your opponent knows you can file in regular federal court where the maximums are as they have been ($30K non-willful, $150K willful, per infringement and no maximum overall total, possible attorney’s fees). Also, you don’t have to give up your CMI-related claims (which, by the way, are not dependent on timely registration, see more here). When it comes to settlement negotiations, those timely registered factors and the CMI-related ones give a creative a much stronger starting position, which will generally result in more settlements, less litigation, and lower attorney’s fees (contingency fees often go up when any sort of litigation starts). More money in your pockets.

Now I know lots of creatives see the CASE Act as a good thing, and I get where they are coming from. It sounds great and it does open a door to getting some money that didn’t exist before. But I still think the downsides are significant. I also know that when I talk to other copyright lawyers who actually litigate, their positions have been much like my own.

As in all things legal, talk with your own attorney to learn what may be the best for you.

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10 Things to Do in Lockdown: Holiday Thanks Edition

2020 has been a shitshow of a year. Many creatives have faced serious hardships, others have been more lucky, but overall, no one has had what they’d likely call a “good year.” Part of what weighs heavily on creatives is that all this mental darkness impedes creation. We all feel stuck, particularly now in the holiday season shut down by all the (necessary!) lockdowns. While there is good news with the vaccines, we’re still in for a few months of dark, and in the middle of winter, to boot.

With all that in mind, I thought I’d share a list of 10 things you can do right now, while we’re still in lockdown-mode, to jump-start the little grey cells into creative thought, or at least to shake off some of the lockdown blues.

  1. Go to an art museum online. Looking at other creative work is usually inspiring for artists and doing this can get your grey cells working on new and fantastic ideas for your own work.
  2. Watch a great visual movie. A film with fantastic direction and/or cinematography can inspire. Maybe you’ll see something that you could try to re-create in your own way, as an homage and a personal project.
  3. Draw something. Even if you’re not a visual artist or think you can’t draw, trying to is great for your creative brain. Do something abstract, or play with color–just make something visual. Doing this analogue is best.
  4. Get a buddy (or a couple) and play Add-A-Line online. To do this, you draw something (a doodle of any kind is fine), then you “hand” it to the next person who adds to it (their “doodle” must connect with yours somehow), then it goes to the next person (or back to you), etc., and you keep at it until the page is filled. I encourage doing this non-digitally as much as possible—that is, draw on paper, scan it, send to the next person who prints it, adds their stuff, scans, sends to the next person…rinse, repeat. 
  5. Try to re-create some art someone else has made. THIS IS NOT FOR YOUR BOOK or any other public medium but rather just an artistic exercise. Don’t be sharing the result with anyone in part because you don’t accidentally want to trod into infringement territory, but mostly because this is a personal, internal exercise. Trying to do what someone else has done will force you to think outside of your own head and open you up to new techniques. This works for musicians and writers just as much as for visual artists. Overall, this can result in new thinking about your own work.
  6. Take an evening walk (masked, of course), or drive if you must, and look at the holiday lights. Walking is highly encouraged because the physicality (exercise) is good for your brain as well. Do this, if possible, with your partner/family/COVID pod people but if you can’t do that, how about facetiming with someone distant while you do this?
  7. Organize a virtual group show. Get colleagues (especially from different disciplines) to all contribute work centered on one theme (like a one-item theme, where every work has to incorporate the same item somehow) and plan a party/opening to show the work. This is a great thing to do with clients too who have their own creativity to show. And it’s easier to do online in many ways (although I also love this in the real world, when possible).
  8. Do something personally scary(ish). Jump out of a plane (with a mask and a parachute, of course) or learn to rock-climb, or ski the hardest slope, or catch-and-release a spider, or give a speech (virtually, for now), whatever. The idea is to face something (reasonable—don’t go completely nuts) that scares the bejesus out of you so that you push your boundaries and vulnerabilities. When you do something that scares you and come out the other side of the process, you learn that you can do more than you know.
  9. Make something in your usual medium, but with some significant limitation–like if you’re a photographer and use multiple lights usually, only permit yourself to use ONE light. Or write a poem without using the letter “e.”
  10. Volunteer somewhere if you can, safely, or at least make a donation. Creative or not, this is a great way to remind yourself how lucky you are. For example, my boyfriend and I have been collecting food from our new neighbors for the local food bank—and we feel like we’re getting all the benefit from it.  

And, in that last item’s vein, this year my “thank you” gifts to my clients and all of you are donations to the AIGA and NPPF, to help creatives hit by COVID, particularly. It’s been a tough year for so many of us—sometimes the best thing we can do is to throw money at the problem. 

Here’s hoping 2021 is as good as 2020 wasn’t. 

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