Washington, D.C., Dec. 22, 2020 - After years and years of hearing the pleas of photographers asking for a solution to low-value copyright infringement claims, Congress has passed the Copyright Alternative in Small-Claims Enforcement Act of 2020 (the CASE Act). The bill was part of an effort lasting well over a decade, by individual creators, trade organizations including NPPA, Congress, and the U.S. Copyright Office, that will make it easier to adjudicate copyright claims with damages below $30,000.
NPPA applauded the passage of the bill. “Photojournalists have long called for a better approach to defending their copyright,” said NPPA President Andrew Stanfill. “This is the culmination of years of hard work by our advocacy team and the NPPA members who took time to champion the issue. We’re thankful for all the organizations and legislators who came together on this and look forward to seeing it implemented as intended.”
The passage of the CASE Act means that the U.S. Copyright Office will establish a voluntary tribunal where disputes over copyright can be adjudicated by a quasi-judicial board, call the Copyright Claims Board (CCB). Photographers and others whose work has been infringed will be able to file a claim with the board. The tribunal is voluntary for both the creator filing the claim and the respondent. The Act is significant because both sides of any copyright dispute may be precluded from enforcing their rights due to the cost of having to bring copyright claims in federal court. The CCB process is designed to be conducted entirely remotely and can be done without an attorney, although creators and businesses will have a right to use an attorney if they choose. The CCB will have staff attorneys who will walk parties through the process, though they will not provide legal advice. Additionally, the bill expressly provides that certain qualified law students can provide pro bono representation for parties.
The maximum damages per claim is $30,000 including actual damages and profits, or statutory damages of up to $15,000 per work for each work infringed if the work is timely registered, and up to $7,500 per work if the work has not been timely registered (in federal court, statutory damages are not available at all if the work has not been timely registered). Injunctions are not available, but the offending party may agree to cease infringing activity which the CCB may take into consideration in making any determination. Additionally, the system is designed to promote settlements in advance of a ruling by the CCB which may include an agreement to cease or license the use.
For copyright holders who do not wish to use the CCB, there is no change to the remedies available in federal court, which remains the only judicial venue for copyright claims where a defendant can be compelled to participate.
The CASE Act has been one of NPPA’s top advocacy initiatives for years, and NPPA has worked extensively with other visual arts trade associations on the bill. NPPA’s attorneys Mickey Osterreicher and Alicia Calzada have spearheaded NPPA’s advocacy on the CASE Act, and the two have been leading a coalition of visual arts organizations that has been meeting regularly to focus on the bill for the past several years. NPPA’s members have been incredibly supportive of this bill, repeatedly answering NPPA’s calls to action to contact their lawmakers.
Discussions with Congress that ultimately led to the CASE Act began in 2006 when Congress was considering an Orphan Works bill. The Copyright Office conducted an in-depth study, released in 2013 for which NPPA filed several extensive official comments and participated in various meetings, round tables and hearings that were a part of the process of drafting the bill. The CASE Act passed the House of Representatives and the Senate Judiciary Committee in 2019, but was held up in the Senate by a single senator for well over a year. It was finally passed on Monday night as a part of the Congressional omnibus appropriations bill, which also included COVID relief funding for individuals and businesses. Other provisions of interest to photographers include an extension of the Paycheck Protection Plan, another round of direct payments of $600 to all adults and children, supplemental unemployment payments of $300 per week, and a small additional unemployment benefit of $100 per week for those who have both 1099- and W2 income.
NPPA thanks the thousands of photographers who participated in this enormous joint advocacy effort over the years, and while we owe thanks to far too many people to mention, NPPA is particularly grateful to Rep. Hakeem Jeffries (D-NY), and Rep. Doug Collins (R-GA) who introduced the bill in the House in May of 2019, and Senators John Kennedy (R-LA), Richard Durbin (D-IL), and Mazie Hirono (D-HI), Senate Judiciary Committee IP Subcommittee Ranking Member Chris Coons (D-DE), and House Judiciary Chairman Jerry Nadler (D-NY). These lawmakers worked diligently with authors groups to craft a bill that would serve the needs of individual creators, and then guided the bill through the House and Senate.
NPPA thanks its partners in this effort in the Coalition of Visual Artists, including the American Society of Media Photographers, Professional Photographers of America, The Graphic Artists Guild, American Photographic Artists, the North American Nature Photographers Association, and the Digital Media Licensing Association, as well as the Copyright Alliance all of whom contributed significant time and resources to the advocacy of the CASE Act.
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