UPDATE: The CASE act overwhelmingly passed the US House of Representatives this week and the bill is headed to the Senate.
By Jessica Sobhraj from CD Baby's DIY Musician
What the CASE Act means for you
This summer, a major artist sampled one of our artist’s songs, even after the artist rejected the original sample request. The major artist sampled the song anyway and over 100,000 physical copies of the record containing the sample were sold. Our artist wanted to file a lawsuit, but couldn’t because he didn’t register the song with the U.S. Copyright Office first, a recent Supreme Court ruling he wasn’t aware of.
After paying $800 for an expedited registration for one song, he started to gather insanely high quotes from litigation attorneys. This seemed like a dead end in his pursuit of a claim. If the CASE Act passes, his next steps would look radically different—and far more reasonable.
He had never heard of the CASE Act, and he’s not alone. Weeks later, I found myself at a conference with the top independent labels and publishers, most of which also hadn’t heard of this ruling or the pending CASE Act, which would make filing lawsuits far more affordable for copyright owners.
The changes to copyright proceedings affect all owners
If you weren’t aware of these changes before reading this, don’t worry. Most people aren’t – yet. Grab a latte, post up in your comfy spot, and let’s connect the dots to get you up to speed in plain English about these critical changes.
The Gist of the CASE Act:
Most creators and businesses cannot afford to fight copyright infringement in court. The average lawsuit costs approximately six figures. The CASE Act of 2019, if signed into law, will make lawsuits a quick and affordable process for all creators/businesses; you won’t even need to hire an attorney. Whether you are filing normally or via CASE (if it is passed), the U.S. Supreme Court ruled that you must register your copyrights with the U.S. Copyright Office first. Waiting to register until an infringement occurs is not ideal, as copyright registration decisions can take months (anywhere from 3-10) and registration fees are expected to increase in the near future. Unfortunately, “poor man’s” copyright (mailing yourself your work) doesn’t give you any real leg to stand on here.
The CASE Act addresses what copyright owners know all too well: creators have rights, but can’t afford to enforce them
The Copyright Alternative in Small–Claims Enforcement Act of 2019 (the CASE Act) is a bill that creates a voluntary small claims court within the U.S. Copyright Office. This would create an easy, accessible, and affordable option for all copyright owners to file claims of infringement and other grievances.
Currently, there is only one place where you can file and endure a copyright infringement lawsuit – in federal court, in person. The foundation of the CASE Act was built upon a study conducted by the Copyright Office that found that the average cost of litigating an infringement case in federal court was upwards of $200,000 in legal fees. The small percentage of creators that can afford to try (and win) their case in federal court could earn $750-$150,000 per infringement, but would likely see most of their earnings go directly towards covering their legal expenses. Creators that do not have open-and-shut cases may have a hard time finding an attorney that is willing to take on their case because they may not receive adequate payment for their time. Ironically, it is nearly impossible for creators to use the very system that is meant to help them.
The CASE Act would reduce legal expenses for copyright owners. Major organizations are supporting the bill and making it easy for you to support it too
This bill proposes to reduce legal expenses by:
- Creating a Copyright Claims Board (CCB) comprised of three judges that will try cases virtually (copyright owners will not have to appear physically in person in a federal court).
- Allowing creators to represent themselves (copyright owners do not need to hire an attorney).
Copyright owners could recover up to $30,000 per case, with a cap of $15,000 in statutory damages per work infringed.
Critics of the CASE Act claim that the bill will empower copyright trolls to abuse the system by filing multiple lawsuits for a minimal fee. However, the writers of the CASE Act have drafted measures to prevent this by imposing fees on alleged trolls and barring them from filing suits for a certain period of time. Other critics point to the voluntary aspect of the small claims court – an accused infringer can opt out of the proceedings and simply not take part. However, alleged infringers that decline to participate would have the possibility of federal lawsuits looming over their heads. After weighing the federal fees, time and the uncertainty of whether or not the copyright owner has the means to go the distance in federal court, there is a good argument for an alleged infringer to participate in the small claims court for a faster and cost-effective judgement.
Major creator-focused groups such as the Copyright Alliance, the NMPA, Songwriters Guild of America, The American Society of Media Photographers and others are also supporting the CASE Act. Politically, it isn’t facing much pushback. The CASE ACT has just passed the Senate Judiciary Committee and will head to the floor of Congress for a full vote. In the coming weeks, the creative community will mobilize to contact their local representatives to secure their support for the CASE Act too.
The bill was initially introduced by Representatives Hakeem Jeffries (D-NY) and Doug Collins (R-GA), and in the Senate by Senators John Kennedy (R-LA), Thom Tillis (R-NC), Dick Durbin (D-IL) and Mazie Hirono (D-HI). If you would like to contact your local representatives to express your support or concern, the Copyright Alliance has created a tool that will allow you to contact them via Twitter, Facebook, telephone and e-mail.
However, even if the CASE Act passes, you can’t take advantage of it unless you have registered with the U.S. Copyright Office
Creators relying on “poor man’s copyright” or the basic rights granted at the time of creation are not entitled to the same protection as creators that have registered, such as the right to file a lawsuit. In March 2019, the U.S. Supreme Court ruled that copyright owners must register their copyrights with the U.S. Copyright Office before a lawsuit can be filed. Registration will be required for creators who wish to take full advantage of the small claims court created by the CASE Act, too.
To be clear, “registration” means that a copyright application was submitted to the U.S. Copyright Office and an official decision was made about the application – either the registration was approved, or some other decision occurred. If an application was only filed, but is still pending, a lawsuit cannot be filed.
It can be expensive to wait for infringement to happen before registering and the U.S. Copyright Office is considering raising fees
An expedited application costs $800, with no actual guarantee that the registration will be approved. Registering under normal circumstances costs $35 or $55 and takes 3-10 months. The earlier creators begin this process, the better it is financially. The cost of an expedited registration could be better spent on 22 separate applications that have higher probabilities of being granted.
The economics of early registration are particularly important for music creators, who often have to divide a single album into multiple applications. For example, only 10 unreleased songs can be included on a single application if the authors/owners are the same for all of the songs. If one song has a different set of co-writers than the rest of the album, it has to be registered with a separate application. If a sound recording has a different set of authors/owners than the rest of the songs, it too will require a separate application. If the album has more than 10 songs, a separate application has to be filed for the overage.
The U.S. Copyright Office’s rules are nuanced
If you inadvertently fail to meet their standards or to respond to inquiries in time, your registration could be delayed for months or simply be denied without a refund.
Registering your copyrights sounds like a complicated process, but it doesn’t have to be. That’s why we created Cosynd, the easiest and most affordable way to file your copyrights with the Copyright Office. We’ll figure out the right filing scenario for you, including registering multiple works on the same application to keep costs down. To get started, go HERE.
Jessica Sobhraj is CEO of Cosynd, the fastest and most affordable way for creators to protect themselves and their copyrights with simple contracts and registrations with the U.S. Copyright Office.