Category: News

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Ho Ho Holy Crap, Where Did the Year Go?!?

Blue heeler unhappily wearing fabric antlers with a bell dangling off the right one.
Mongo no like antlers

The other day, on NPR, they ran a story about people who are studying how we (humans) experience time and one of the commonalities is that the pandemic affected that. For most people, it was a slowing of time–a day felt like many more than 24 hours, a week more like a month, et cetera. But as things have opened up, for many people time has started to fly.

I am definitely one of those people. In short, while 2020 and 2021 slogged, 2022 has flown by. I can’t believe the end-of-the-year holidays are upon us already.

My usual plans for the end of the year got bumped when my partner got Covid just days before Thanksgiving. Then, despite mask wearing and his isolation, he still gave it to me, forcing me to isolate for the week after Thanksgiving. Luckily, we both came through with only mild (me) to moderate (him) symptoms (thanks to the vaccines), but it has forced a change in our usual holiday activities.

Anyway, here we are. This year, I incorporated my law practice, got some new clients (thank you!), got threatened with a lawsuit for daring to send a demand letter to someone (ugh), started writing for the Architectural Photography Almanac, quit Twitter and moved to Mastodon, and handled many matters for my clients. It was, overall, a good year.

In thanks to all of you who permit me to do what I am passionate about and, as is my custom, I have made donations to a couple of charities rather than sending you tchotchkes as thank-you gifts. This year, I made a single donation to the NPPA’s fund and committed to a monthly contribution to the Souther Poverty Law Center. Both organizations do much good in a difficult world.

Thank you, all of you, my clients past, present, and future, for permitting me to serve you. I hope I may do so for some time to come.

Here’s to a wonderful 2023 for us all.

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Flipping the Bird

In case you hadn’t noticed, I’m no longer on Twitter. I dumped the bird site as soon as Musk closed the deal. I switched to a couple of different platforms, but it looks like I’m settling on Mastodon.

It’s been interesting over the past week as I build a whole new network of people, but I’m actually enjoying it. I miss some of the folk I was following, but there are a lot of artists and academics and generally really interesting and thoughtful folk on Mastodon. I feel like it’s a higher IQ version of a platform, sort of.

One of the best things about Mastodon is that not only are there no ads, there are no algorithms. Huzzah! My feed is chronological and I see, depending on my settings, either the people I follow (the home timeline), the people who are also on the same “instance” (think server, in my case, that’s @legal.social)(the local timeline), or people who are people who are followed by those whom I follow, regardless of server (the federated timeline). I’m not fed what some ones and zeros think I should see. I am not fed at all. No one is.

I also happen to like that there are a lot of non-Americans on Mastodon. Tons of Europeans (especially Germans). This is great because it helps one to see other perspectives on all sorts of issues. I also like it because I’m a linguistics nut and the more languages the better.

Anyway, the point is that I will be tooting (what posting is called) mostly on Mastodon (see link above to find me), and posting longer format stuff here.

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Answering Questions

I’ve just started writing for the Architectural Photography Almanac, to answer general legal questions and discuss issues that their readers face. Many of these issues and answers will be applicable to all photographers and all creatives, generally. The posts should be monthly, and comments are welcome!

Check out my first post, here.

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Next Steps at the CCB

As you may remember, back in late July I filed my first CCB case. Since then, I’ve filed two more, each for different clients. Today, I received notice that a claim had passed its initial review and could be served on the respondent–it is for the first case I filed.

So, what happens is that you get three emails from the CCB informing you that something has been filed in your case. Each email includes a link to an item filed. The first says that a Notice of Compliance and Direction to Serve had been filed; the second that the Service Packet had been, and the third that the Waiver of Service had been. The last two note that they are “restricted”–that is, the public cannot get access to those items. I could, of course, after logging in. When you get those emails, make sure to download copies of everything and add them to your folder for the case.

The Notice provides you with your instructions. It’s a one-page document explaining that your claim has passed its initial review and that you now have to serve the respondent(s)–that is, the people you are suing. You have 90 days to serve all respondents in your case. It also explains what service is, how to do it, what needs to be served (a notice, the entire claim with its exhibits, and an opt-out form), and also explains that you can ask the respondents to waive service and includes a link to the CCB Handbook where it explains service and waiving service.

There is a second page with the Notice: the Proof of Service form. That form must be filled out and filed with the CCB within 7 days of the completion of service.

The Service Packet includes a Notice of Official Government Proceeding, which explains that the respondent is being sued in the CCB and for what reason, and it provides instructions for the respondent. the Packet also includes the claim itself, including all the exhibits (if any). Finally, it includes a Form to Opt Out of Copyright Claims Board Proceeding which, duh, a respondent may use to opt out (or it may opt out online).

The Waiver of Service is optional, but it makes sense for both sides to waive formal service so download it, too. That filing includes a one-page Request to Waive Service of Notice of an Official Government Proceeding and a one-page Waiver of Service form. The Request must be filled out by you (or your attorney if you’re represented) and signed by you (or your attorney). You then send the completed and signed Request, a copy of the Waiver form, and a copy of the entire Service Packet to each respondent for that matter. You must also provide a self-adressed and stamped envelope for the return of the waiver form. DO NOT INCLUDE ANYTHING ELSE–that is, no nasty letters or even polite settlement offers–just send the forms (and SASE) as described. The CCB makes a big deal out of not including other stuff so follow its instructions–you don’t want to screw up service, even if it’s not formal service.

By the way, I highly encourage using the USPS Priority Mail system for this, in part because it is trackable and it can be a big pile of pages which you can send for a flat fee.

Now, for my matter, I also emailed everything to opposing counsel. That step is not required but since I knew the respondent was represented I did that out of courtesy. The email simply stated that the case had been filed and the documents were attached and were being sent via the USPS as well.

Respondents have 30 days to waive service if they choose. If you don’t hear from them by the end of that period, you should move forward with formal service. There are companies that will do that for you, if you need to do that. If the respondent here doesn’t waive service, I’ll explain about that when it happens. If it does waive service, then I will file that completed Waiver form with the CCB and then the Respondent will have 60 days to opt out if it chooses. If it does not opt out, then we’ll get a Scheduling Order from the CCB which will include the date the respondent’s answer to the claim is due.

But first things first… let’s see if the respondent waives service. It might also choose to re-open settlement negotiations in earnest, and it is possible the matter could settle before going much further. We’ll see!

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The Best Laid Plans

Robert Burns, the poet and not my father, wrote about how the best laid plans often go awry. So it is with my intention to write here more often. Obviously, that has not happened in the past month…ish. Apologies.

It also seems a fitting maxim for the CCB since I have now filed three cases there, the first being in late July, and none has been reviewed yet. This seems to be an issue. I was contacted by someone asking about my experiences and I mentioned that I hadn’t had any except for the filing of cases yet and he said he’s hearing that from others, too. So, I checked to see what’s happening with others’ cases. The results are both odd and frustrating.

First, some cases do seem to be proceeding. However, I’ve found cases from early July that haven’t been reviewed yet but others that were filed much later which have been reviewed. As I looked for what differentiated a reviewed one from a non-reviewed, the best I can figure is that if the case looks obviously flawed, it gets reviewed faster than one that looks proper on first glance. For example, there is a case against a federal governmental entity (you can’t sue the US in the CCB) and it got reviewed in less than a month and the CCB filed a notice that the claim had to be amended for it to proceed. Another was filed on July 7 then the claimant asked to amend the claim which was approved on August 3 and then that claim was found non-compliant on September 6. There are more than one that are just crazy with filings, so much so that the CCB issues an order to stop filing docs (like this one) but even then those cases got reviewed faster.

In short, there just doesn’t seem to be a clear system for what gets reviewed when, which is frustrating for the people waiting. It’s been 40 days since I filed the first one and if it gets reviewed and passes today, then I have to serve the respondent and then they have a good long time to opt out before anything else happens, like their answer. If I had filed in federal district court instead, my client would likely be close to if not actually starting discovery by now. If it was here in the Southern District of California, we’d likely have the ENE scheduled, even (an ENE is like a free mediation done by the court–lots of cases settle at or shortly after an ENE).

It would, in my opinion, be helpful if the CCB would make it clear how they decide what cases are reviewed when. I didn’t see anything in the handbook on this issue so I assumed it would be simple chronology; but it is clear that something else is afoot.

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Filing at the CCB

I filed my first case in the CCB last week and thought I’d share a bit about the initial process. 

TL:dr It’s designed to be non-lawyer friendly but I’d still encourage using one anyway. 

First, don’t do anything without reading the handbook beforehand. It will make a huge difference in understanding how the forms work as well as the process as a whole. It will also give you the chance to see what things you might not understand fully, so that you can ask questions (preferably of a lawyer, not some rando on social media). For example, when you enter your certificate number, there is a very specific way to do that and it’s not “VA2-222-2222” like you would expect. Many of those little questions will be answered by the handbook.

Second, you may be tempted to look at several of the other cases to see how others are approaching the process. I did that and this can be very helpful to attorneys, but I’m afraid it may only make things worse for non-lawyers, as there is some crazy out there already. If you don’t know how filings work or what the elements are to your claim, that is, what you’ll need to plead and prove, this is where you can get into trouble. For example, there is one case where the claimant (plaintiff, in regular federal court) is essentially trying to sue the US Copyright Office. That’s not what the CCB is for and those filings will send you into a rabbit hole of bad examples. So, for most of you, I’d say skip this unless you want to run something by your attorney to see if it’s a good example to follow or maybe you have litigated in the past and know how the process usually works. 

Third, gather all your evidence and plan your case. You need to know what you need to prove (the elements of infringement claim) and what you have to get you there (evidence). Do you have any holes in your evidence? Now’s the time to try and fill those gaps. For example, you should (at least) have a copy of the original work and copies of the infringing uses and a copy of your registration certificate, if you have one (in the CCB, you have to have at least applied for registration to start a claim, but it’s better to have one in hand already)—all that is your evidence. 

You should also take the time to research your opponent, if you haven’t already. You’ll need contact information of some kind, at the very least. Gather all this information and organize it into some sort of cohesive story. In regular court, we attorneys do this in the form of the complaint we draft and file; here, there is no need for a formal complaint, but a document with the same information will be helpful. 

To create the document, write a list of how and when the work was made, when it was first published (published for the purposes of copyright law—not published in the normal English sense), when it was registered, when you discovered the infringement, how you did that, and then what steps you took after your discovery of it.

And if you haven’t already tried to negotiate a settlement before filing, now might be a good time to consider that first. It will look better if you try to get the matter worked out before filing and, if it works, then you won’t have to file! In the case of the filing I just did, we’ve been trying to get the respondent (defendant) to negotiate reasonably for almost a year before my client decided to take this step.

Anyway, back to the doc… in some sort of bullet point-like list, tell the story and, in it, point to the evidence you have. Think simple, declarative sentences. For example:

Claimant created the photograph on June 1, 2020.
Claimant first published the photograph on June 15, 2020, when she offered it for licensing on her website at https://www.photographer.com/art.jpg.
Claimant registered her copyright in the photograph, with others, receiving certificate No. VA2-222-2222 with an effective date of July 1, 2020. [Exhibit A: USCO certificate]

etc.

After you have all that done, you can start to fill out the claim forms. It will be much easier with the timeline and the evidence in order, but remember that you can always stop and save your progress, then come back to the forms later. You should, at the end of the claim, upload pdfs of the timeline and the evidence you have. Also, make the file names for these things clear, like “EX A: Cert va2-222-222.pdf.” You don’t need to do all that, but it will make reviewing things easier on the CCB attorney assigned to review the claim and hopefully get you to the service process faster. 

Pay your $40 (the other $60 is due later, if the defendant doesn’t opt-out) and then, like me now, you sit back and wait for the CCB attorney to review the claim to make sure it’s appropriate for the venue and meets the standards. Once that happens, you’ll be instructed about service. 

When that happens, I’ll let you know what the next steps are like. Stay tuned…

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Look At My Shoes

Today is July 1 and it is the first day I’m doing business as Burns the Attorney, Inc. The old saying about the cobbler’s kid going unshod? Yeah, that was me. I should have done this a while ago but, still, now is better than later.

Forming an entity is a state-specific thing. The legal hoops you need to jump through vary from state to state. For example, I incorporated because I had no other choice. In California, you can’t have a solo-member LLC if your business is the law. You can, however, have a solo-member creative business LLC. Or incorporate. Go fig.

Anyway, there are many reasons to form an entity. The most obvious ones for a solo are to protect your personal assets and for tax benefits. For the second, you should talk to a CPA. A (non-tax) lawyer can give you some general tax advice, maybe, but a CPA will know best. Talk to one before you do anything about formation.

The other one, asset protection, is where talking to me (or any good business lawyer) makes sense. See, if you don’t form an entity and your business gets sued, well, you are your business legally-speaking as well as metaphorically. That means whatever assets you have in your personal world (like your house and car and retirement accounts) are available to pay a judgment against your business. Lawyers like me know what you need to do to form the wall between your business and your personal assets.

Arguably more importantly, we know what you need to keep doing to make sure that wall stays strong. See, if you don’t “maintain the formalities” (as the law likes to say), your wall can become paper thin, making piercing the corporate veil a piece of cake. Once the veil is pierced, your personal assets are back in play. Yikes!

In the creative world, creating an entity has extra considerations: your copyrights. As a sole proprietor (i.e., not an entity) you are the author of your creative work and the copyrights are owned by you. They will last until 70 years after your death. But, if you form an entity, you become an employee of that entity and the entity becomes the legal author of your work! Suddenly, the term of the copyrights change: 95 years from the year of the work’s first publication or 120 years from the year of its creation, whichever ends first. There are also inheritance issues then. There are legal ways to hold onto your copyrights in this situation–an attorney can help you with understanding which way is best for you and then making that a legal reality.

As for me, it is a relief to have taken this step. I sleep better at night knowing that my house (that I own with my boyfriend) isn’t endangered by my business. Also, it sure doesn’t hurt to know that I’m saving some money on my taxes, too.

So, while the way I serve my clients won’t change, starting today I’ll be serving them as the President/CEO of Burns the Attorney, Inc.
That’s some fine shoes.

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Small Claims and Options

The Copyright Claims Board, aka the CCB or copyright small claims, launched today. You can now file claims using that system, rather than federal court.

However, that doesn’t mean you must use that system. I’ve written about my reservations, but that’s not what I’m talking about here. Rather, I mean that just because the CCB is now available as an option doesn’t mean that you should skip the step of trying to work out an infringement matter without filing anywhere first. My legal philosophy is that one should always try first to work things out without litigation, be that in federal court or the CCB.

In the past, an infringement of an untimely or unregistered work (without a CMI removal claim) was almost assuredly going to be a “can’t take that on contingency” situation for me. Now, however, I’ll be taking a different look at those kinds of matters.

The existence of the CCB system gives those of you who have not timely registered your work a new tool to use in pre-litigation negotiations. Instead of having to prove up a license rate to an infringer (“actual damages”), now you can say “Hey, if we go through the CCB, I can be awarded up to $7500 in statutory damages for this infringement” which gives you some negotiating leverage. Of course, you shouldn’t ask for the full $7500 to settle–that is rather defeating the purpose of pre-litigation settlement (i.e., to save everyone time, effort, and money), but it lets the other side know what they might be facing if you don’t work it out.

Also, remember that you will have to register the work before you can get a judgment from the CCB; that is, you need to have applied for registration prior to filing the claim and you need your certificate before the process is completed (there are ways to expedite registration, if needed). If you haven’t applied for a registration of an infringed work yet, you might be able to use that to help convince the other side to settle because you can settle for less money now. I mean, if you have to register and pay the filing fees, etc., you’ll have to get more to settle–that’s basic business math.

Sadly, however, a well informed opponent will know that they can opt out of any CCB proceeding brought against them, reducing you to actual damages again, but lots of infringers are not going to be so informed. And you don’t need to inform them.

Note, I am NOT suggesting you lie to any opposing party–you shouldn’t say they’ll “have no option but fight the claim in the CCB” or similar, but you can say, “If I bring this claim in the CCB, I can be awarded up to $7500 in statutory damages.” There is no lie there. What I’m saying is that you don’t have an obligation to tell them how the CCB works for defendants and that they have an out, not until you actually file with the CCB. If you end up filing in the CCB, then you have a duty to inform the opposing party about the claim and their options. Until you file, though, nope.

Anyway, as I said, if you have an infringement of a non/untimely registered work, now I may be able to help you on contingency or a hybrid fee. You can submit the information for my review using the form, here, and I’ll let you know what your options are, including what fee arrangements are available. As I mentioned in my previous post, I am limited annually to the number of claims I can file for my clients, so I will have to pick and choose a bit if we get to that point. But, we might work together to try to get you a reasonable settlement before taking that CCB filing step.

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The CCB and Me

The Copyright Claims Board (CCB) is about to launch (June 16). Although I have written about my concerns (see previous post), that doesn’t mean I won’t be available to clients who wish to pursue claims through that process. It is a legitimate legal process, definitely an option to all but especially to those who have not timely registered their works, who will now be able to elect limited statutory damages* (unlike in federal court), and I intend to help as many of you though it as I can.

(* To quote from the CCB itself: In a CCB proceeding, the amount of statutory damages cannot exceed $15,000 for each work infringed. Because the overall cap on CCB awards is still $30,000, however, you will not be able to recover more than that amount no matter how many works are involved in the proceeding. The caps for statutory damages will be lower if you do not register the work(s) within the timeframe established in section 412 of the Copyright Act: $7,500 per work and $15,000 per proceeding. These are all upper limits; a successful claimant will not always be awarded these full amounts. And unlike in federal court, the infringer’s knowledge or intent is not considered in determining the amount.)

Although you don’t need to have a lawyer to use the CCB system, I would advise using one anyway. Like all things legal, there are details to look out for and it will save you time and angst if you hire someone to help. Particularly early on, I think having counsel would be the smart thing to do since there are bound to be bugs in the system and having someone who understands the related law and rules in detail will help navigate any surprise issues.

I will be taking select cases starting day 1 of the system. I say “select cases” not only for my usual review of “Is this a viable case and can I help on a contingency fee basis?” but also because I am limited to 40 CCB cases per year–total. This is a hard-line and all attorneys are limited to that number, per attorney. Firms of 2 or more lawyers are limited to a total of 80 cases per year.

I’ll be posting more about how the system works, or doesn’t, as I learn about the process from my own experience as well as from others who file claims in the CCB. As the old radio shows used to tease: stay tuned!

Regardless, I still highly highly highly encourage all creatives to register works with the USCO as soon as possible after creation. Today is better than never, even for older works! Remember that timely registered works open more doors to you, including higher statutory damages than you can get from the CCB.

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The CASE for Disappointment

I finally got the time to read the amendments to the final rules for the Copyright Claims Board (aka CCB, the CASE Act’s small claims system) and, well, I’m disappointed. 

First, it’s clear that a lot of thought went into the choices made, but the feeling I get from reading the Federal Register is that more weight was given to “protecting” defendants than enabling artist-plaintiffs. While many accommodations were made for pro se parties (that is, parties who do not have lawyers representing them in the process), and many of those accommodations can help both sides, overall, I think the final rules make it much more difficult for artists to participate, to win, or to win enough to make the process worth their efforts, represented or not. Worst of all, the whole system is vastly more limited than it was expected to be.

First, and generally speaking, here’s how the process works:

  1. File a claim using the online fillable form system and have it reviewed by the CCB’s attorneys for sufficiency; if it is, move to step 2, if not, fix the claim or drop it.
  2. Serve the Initial Notice (the claim) on the opposing party; if it doesn’t opt out, then it will file its response.
  3. The board with then issue a scheduling order with dates for things like pre- and post-discovery conferences, discovery deadlines, etc. 
  4. Discovery, the part of the system where the sides gather info from each other, occurs and this is very limited by the rules. Forms will be used for almost all of this, too, except for the parties’ written statements.
  5. Discovery closes and, if needed, there is a hearing (virtual) on the matter.
  6. The board issues its final determination, and the parties learn who wins/loses and what any award may be.
  7. A request for reconsideration can be filed after that, but it’s unlikely it will change things, especially since one can’t add any new evidence or the like.

My first issue is that a defendant gets 3 strikes before a default is even considered. That is, a plaintiff files a claim, but the other side never responds or the other side agrees to the process and then later stops participating. In federal court, a plaintiff could move for a default, which is the court’s way of saying “you didn’t defend so the plaintiff wins.” In the CCB, the board will contact a non- or disappearing defendant twice more to give them the opportunity to respond (“cure” the error) before it will even think about calling it a default and awarding damages to the plaintiff. That, to me, just seems like enabling bad behavior. Although the board claims that its ability to award attorney’s fees (if it chooses!) for bad behavior will discourage it, I don’t think that’ll make a difference in the long run.

Second issue is that the discovery tool Requests for Admission (RFA) aren’t used unless a party asks to use them and shows good cause for their use (a big hurdle). Moreover, even if you do get permission to use them, if they are not responded to, they are not admitted, as they are in federal court. See, in federal court, you can send RFAs to the opposing party and they must admit or deny them (in part or whole) or state that in good faith they cannot answer because they don’t have the info to answer. If they don’t answer any one or all of the RFAs in any of those 3 ways, that or those RFA/s is/are deemed admitted as fact. Without having that consequence for non-response, RFAs are essentially useless. At most, the board can use the failure to respond as negative generally against the party, but even that is at its discretion. Big whoop.

Third, there are no depositions permitted. Period. None. Nada. No forcing the other side to look at you and answer questions under oath. Now, I could understand permitting only depositions of the parties or some other limitation, but flatly saying “no depos” is bad. I can’t imagine going into court without deposing the other party, if only to get them on record for when they later say something completely different to the court. But here, nope. None. All you get is the other side’s written statement. True, that’s all they get from you as well but, if you bring the claim, you’ve hopefully got nothing to hide anyway so a depo is not a worry. But not getting the infringer to answer questions… hamstringing.

Fourth, if a defendant agrees to mitigate or cease using the work voluntarily rather than being compelled to do so, that fact will be considered in mitigation of damages. This is infuriating to me. Someone steals a work, uses it, and then when they get caught and finally stop, they get a credit for doing so. WTAF?! Instead, the opposite should occur: if an order is required, the damages are doubled or something like that. 

Fianlly, and as if all that isn’t bad enough, the very worst part to me is that a party is limited to only 10 claims per year with the CCB. Relatedly, any attorney is limited to only 40 claims per year (80 total for a firm—even if that firm has 1000 attorneys!). The rationale is that these limits will avoid so-called trolling but, considering the fact that artists of all kinds often have hundreds if not thousands of claims a year, this just sucks. Instead of being able to use this tool or have your attorney use it, you’ll have to pick and choose what cases to bring at all. Moreover, copyright attorneys will be even more reluctant to take smaller or difficult cases, since we’ll be so limited as to how many we may bring on behalf of all our clients.

And don’t get me started on how this is restraint of trade for us attorneys. Grrr.

These aren’t all my complaints about the system, but they are the big ones. It’s disappointing, to say the least. Overall, CASE was sold to the people as an effective alternative to federal court and an option for those who haven’t timely registered their works. Instead, it is turning into a greatly limited system that gives infringers all sorts of opportunities to get away with lower damages and continued poor behavior. 

The good news is that you can still register your works and use the traditional federal court system. If you timely register your works, you also give attorneys like me a great tool to negotiate a settlement on your behalf without having to resort to filing suit at all. 

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