Creative Arts

The Changing Landscape of IP Dispute Resolution

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Written by Rick Licari

We’re going to go down a slightly different path here today, folks.  No snark. no jokes, no kitsch (not even of the Taylor kind!).  Nope, today we’re going to discuss a pretty important document for most artists, writers and musicians; one that seeks to streamline the process for addressing Copyright infringement issues for the little guy.  The Copyright Office recently delivered The U.S Copyright Office Remedies for Small Claims Report to the House Judiciary Committee.  The thrust of the report was that, “Unfortunately, and perhaps ironically, as the rate of infringement has increased, so too have the barriers to pursuing copyright claims in the federal courts. These barriers are largely practical: federal litigation is expensive and time-consuming, and therefore out of reach for many copyright owners.”  Thus “The Copyright Office therefore recommends that Congress consider the creation of an alternative forum that will enable copyright owners to pursue small infringement matters and related claims arising under the Copyright Act.”

Creative types rejoice!  Congress and the Copyright Office have recognized a need for revamping the Copyright system for small claims (up to $30,000 with limited injunctive relief) and the report sets out several ways this can be effected.  After noting that both Federal and State courts are not well suited to small Copyright infringement claims the report lays out an alternative: an Administrative Tribunal.  The Tribunal would be a panel consisting of three attorneys, two with heavy copyright experience and one with a strong alternative dispute resolution background.  The Tribunal system would have staff attorneys available to walk claimants through the process.  The system would also be voluntary (though it is unclear how, as the report explains the problems and benefits of both “opt-in” and “opt-out” procedures and asks Congress to decide which it prefers).  This is extremely important because it means that if you want to go to Federal court for an infringement claim, you can…and that if you don’t, the voluntary nature gets around personal jurisdiction issues (meaning you can save a lot of time and money by not having to bring a claim in another state).  The Tribunal would stick to copyright infringement matters, and not get involved in trademark disputes or unfair practices.  Another plus for the small artist: unlike with normal adjudication, you don’t need to register your copyright within three months of creation to get the full defense of the law, you just need to register at any time before the Tribunal completes its findings!

The report recommends that claimants avail themselves of attorneys, though, as stated before, staff attorneys will be present to help pro se litigants.  Instead of a classic appeal, claimants can offer a decision up for “reconsideration.”  It should be noted that Tribunal decisions will not set precedent for other cases; each will be decided on an individual basis.  The Copyright Office itself will be the home of this Tribunal, with most of the proceedings done based on documentary evidence, but some teleconferencing would be allowed if necessary, and the system would be accessible from anywhere (think online).  This is great for artists as it is cheap and does not involve much (if any) travel.

However, this is just a report and though it is a fantastic step in the right direction it doesn’t do much for claimants in the here and now.  BUT there are still tools to use out there, you can still go through the regular adjudication process.  For any contracted work you can add in an arbitration or mediation clause.  And, you should register your copyrightable works just in case!  If you want to learn more about some of the basics of alternative dispute resolution check out this American Arbitration Association pamphlet, it goes over the difference between arbitration and mediation and explains why each may or may not be a good idea for you.  Now get to work making something wonderful!

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Featured Artist

Loui Jover is a self represented full time artist from Queensland, Australia. His artwork involves drawing in ink over adhered-together vintage book pages and newspapers. Loui has held three solo exhibitions and has been included in numerous group shows. “I draw obsessively every single day filling books with ideas, cartoons and drawings. I primarily like to work with ink on paper, but am versed with oils and acrylics and enjoy making and using collage.”  Loui is currently working on a series of large oil paintings based on childhood memories. To check out more of his prints go to http://www.saatchionline.com/profiles/index/id/284005.

About the author

Rick Licari

Rick Licari is a graduate of The College of the Holy Cross, from where he earned a BA in English Literature and a graduate of Suffolk University Law School, from where he earned a JD. Along with studying Literature in college, Rick became passionate about films and movie-making. While in law school he studied international law, with a business heavy focus. After law school, Rick became interested in the way new media affected property rights especially in relation to books and films. He is currently a litigation support attorney in NYC, a sometime general practitioner, a copy editor at Bleacher Report, and a writer of fiction.

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