Is It About to Get Much Easier for Artists to Bring Copyright-Infringement Lawsuits?

Is It About to Get Much Easier for Artists to Bring Copyright-Infringement Lawsuits?
Jeff Koons's "Balloon Dog" on the roof of the Met Museum in New York City
(Courtesy Baptiste Pons via Flickr)

While the Stop Online Piracy Act (also known as SOPA) now pending in Congress has members of the technology and art world up in arms, a more subtle remedy for small copyright claims is also quietly being developed by the United States Copyright Office. At the end of October, Congress asked the office — a subset of the Library of Congress that maintains records of U.S. copyright — to study the problems surrounding small copyright disputes, as well as possible alternatives. The results, which involve the establishment of a small claims court, could have major implications for artists who use appropriated material as well as those whose material is appropriated by others.  

Under the Copyright Act of 1976, all copyright infringement claims — whether they concern a blockbuster Hollywood movie or an individual photograph — must be brought to federal court. The exorbitant legal fees associated with this process often dissuade individual copyright holders from filing a lawsuit, and can bankrupt defendants. (In 2011, for instance, the median cost for litigating a copyright-infringement lawsuit with less than $1 million at risk was $350,000, according to the Federal Register.) When the reward is likely to be small, the protracted legal process doesn’t help, either: the median duration of a federal case that went trial in 2009 and 2010 was 23 months.

The copyright office is currently soliciting comments from the public through January 16 to help it write the report, which it will then pass on to the Congressional Subcommittee on the Courts, the Internet, and Intellectual Property. In a preliminary notice on the issue, drawn largely from a 2006 hearing on the same subject, the office set forth several alternatives to the present system that would give artists and other copyright holders the ability to pursue a claim without hiring an attorney. (A relatively similar proposal in England, to establish a copyright small claims track in Patents County Court cases involving £5,000 or less, is pending there.)

“The cost that artists find prohibitive is the expense for lawyers, et cetera,” said John Stewart, an attorney at Crowell & Moring LLP in Washington and a member of the Legal Advisory Council of the Copyright Alliance, which represents the interests of copyright owners. “State court may also cost a lot in terms of legal fees, but state small claims courts are generally set up with simplified procedures and limits.”

In its preliminary notice, the office makes several suggestions that it is quick to acknowledge are imperfect. Small claims could be carried out in state court (though, it notes, “state courts do not have expertise in copyright jurisprudence”) or by a federal small claims panel (which, it admitted, would create logistical challenges if there were only a handful throughout the country). One major stumbling block, according to the document, is the complexity of fair use — the very defense that has been invoked in court by numerous artists, from Richard Prince to Jeff Koons, in copyright disputes. Fair use, according to the copyright office, “is extremely fact-specific and typically requires courts to examine decades of judicial precedent.” In other words, one can’t trust just any court to get it right. 

It's unclear whether the report will have any tangible effect on law — when a similar matter was discussed in 2006, Congress failed to act. Still, fair use advocates cautiously support the idea. "While a copyright claims court could create a massive explosion in the number of copyright cases by lowering the barrier to entry, the ability to defend yourself without a lawyer and without the fear of devastating statutory damages seems like a net positive," technologist Andy Baio told ARTINFO in an email. "Of course, it depends entirely on how the copyright court is designed and the limits put into place."