Copyright Alternative in Small-Claims Enforcement: The Real Version of the “Poor Man’s Copyright”

In December of 2020, the Copyright Alternative in Small-Claims Enforcement (“CASE”) Act was signed into law. The CASE Act authorized the Copyright Office to create the Copyright Claims Board (“CCB”) —a voluntary, alternative forum to federal courts for resolving copyright disputes, seeking less than $30,000 in damages (so-called “small claims”). While federal court litigation certainly remains an option for copyright claims of any size, as we constantly remind clients, litigation of any size is incredibly costly and time consuming for small businesses and nonprofits. How might the CASE Act help your business or nonprofit protect its copyright?

No Such Thing as a “Poor Man’s Copyright”
Under copyright law, you generally cannot pursue a claim for copyright infringement until after the Copyright Office issues a copyright registration. There is no such thing as a “poor man’s copyright” (the urban legend that if you just send yourself a copy of your created work, then you can use the date of mailing as proof that you created the work and own the copyright). If you want to protect your rights, you must register with the Copyright Office.

Where many small businesses and nonprofits go wrong is taking a “wait and see” approach to protecting their content. Rather that budgeting for legal and registration fees, they assume that they can wait and register if someone violates their rights. The problem with this approach is that by doing so, you make it more difficult to maximize the amount you can recover in the event of copyright infringement. When you register your copyright in a timely manner (either within 3 months of publication or, if unpublished, before the infringement), the court can award both statutory damages ($750 - $30,000 per work) and attorneys’ fees. If the court cannot award statutory damages, then the burden is on you to try to prove how much money the infringer made from your content, and good luck with that if you think a copyright infringer has kept good business records showing their stolen sales! If the court can’t award your attorneys’ fees, then you’re likely to spend tens of thousands of dollars pursuing your case and protecting your rights. Does your business or organization have that kind of legal budget?
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Enter the CASE Act
In passing the CASE Act, Congress recognized that while copyright registration serves important purposes, many copyright claimants “may not be aware of the repercussions of not registering in a timely manner.” If you assume you’ll never have to enforce your rights or that you’re too “small” for anyone to steal from, then you might find out too late that you’ve waived important protections.
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Under the CASE Act, if you suspect someone of infringing your copyright, then you can file your case with the CCB and simultaneously file your copyright registration application with the Copyright Office. This means that, as a practical matter, you still have some options available to enforce your rights, even if you did not timely register your copyright claims. However:

• The CCB still cannot decide your case until after the Copyright Office issues your copyright registration. The Copyright Office is in the process of establishing procedures for expediting registration applications in these situations. (Currently, you could apply for “special handling,” citing pending or prospective litigation, but the current fee is $800, which the Office believes will deter participation before the CCB.) Even with the wait, the process should still be much faster and much cheaper than federal court litigation.
• There’s no guarantee that you will be able to enforce your rights using these new procedures. The alleged infringer will be able to opt-out of the CCB process, effectively forcing you into federal court. And infringers may elect to opt-out simply because they believe you are too “small” to afford the time and expense of litigation. (On the other hand, the alleged infringer would be facing that risk that you will then seek much higher damages in federal court.)
• Because damages will be capped at $30,000 in CCB proceedings, you will not be able to seek the statutory damages that are available for willful copyright infringement (up to $150,000 per work).

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​The CCB is expected to begin hearing cases this spring. In the meantime, if you have questions about protecting various forms of content, then schedule a consultation with a copyright attorney.

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