Tag Archives: copyright

NEW Copyright CASE ACT- small claims for copyright infringement

NEW FEDERAL COPYRIGHT LAW: CASE ACT = small claims for copyright infringement.

On December 27, 2020, the long-awaited CASE Act was signed into law.  It establishes a small claims court for copyright infringement claims under $30,000.

If your book, website, photograph, visual work or other creative project has been infringed, you can opt to bring an action before the “Copyright Claims Board”  (“CCB”) and you can represent yourself without a lawyer.  However, knowledge of copyright law and Federal Rules of Civil Procedure and Evidence are still required. Claims cannot be filed until the Copyright Office creates the CCB and enact rules and regulations.

Here are the highlights of the CASE Act:

  1. You must have applied for or received a copyright registration for your book, photograph, website, etc.
  2. You pay a filing fee and include a statement of facts in your claim filed with the CCB.
  3. The CCB may accept your claim, deny your claim, or allow you to amend and resubmit your claim.
  4. If your claim is accepted, you must send a notice (that includes the correct information) to the infringer.
  5. The infringer can “opt out” of the and you must then take your claim to the Federal Court (the regular way of suing for copyright infringement).
  6. If the infringer does not opt out, he/she loses the opportunity to have the dispute decided by a court and waives the right to a jury trial.
  7. If the infringer does not opt out, the infringer may bring counterclaims against you.
  8. The CCB schedules proceedings, settlement, conferences, discovery, just like a regular court action. Proceedings are held by video conference – no travel to Washington D.C. is required.
  9. If the CCB finds that your copyright was infringed, you may recover actual or statutory damages.
  10. If your copyright was not registered at the time of the infringement, CCB can award statutory damages of up to $7,500 per infringement.
  11. If your copyright was registered at the time of infringement, CCB can award you statutory damages of up to $15,000 per infringement.
  12. The infringer can raise defenses and mitigating factors for CCB to consider when awarding damages.
  13. Total damages are limited to $30,000 not including legal fees.
  14. After the CCB renders its decision, either party can request reconsideration. If denied, the losing party can ask the Register of Copyrights to review the decision.
  15. The losing party has limited grounds to appeal the decision in Federal Court.
  16. The CCB may find that that an infringement claim was made in “bad faith” If so, it can award fees and costs of up to $5,000 to the other side.

The Copyright Office has until December 27, 2021 to establish the CCB and it is now enacting regulations to make the law effective.  As soon as claims can be filed, I will post another notice here.

 

2021- Songwriters TO DO List under MLC

Summary for self-administered composers (without a publisher)

The MMA is now effective.  If you are a songwriter, you need to get your songs into the now effective national database. It is the database that it intended to act as the U.S. universal database and for copyright mechanical licensing purposes.

Here is a quick to do list if you self-administer your compositions.  If you have a publisher, you should contact it to see if they are actively registering your songs in the MLC database.

  1. Watch video here: https://vimeo.com/487019593. This is a good overview of music business and copyright law and How the MLC works.
  2. All Songwriters should join the MLC. Link here: https://www.themlc.com/membership
  3. Register your compositions and/or review the MLC database for accuracy.
  4. Also, make sure you have registered all of your sound recordings with SoundExchange here: soundexchange.com. If you are registered with a company such as TuneCore, they may have already registered your master recordings. Check with all services you may be associated with such as TuneCore, The Orchard, etc.

The Mechanical Licensing Collective (The MLC) is a nonprofit organization designated by the U.S. Copyright Office pursuant to the historic Music Modernization Act of 2018. Starting in January 2021, The MLC will administer blanket mechanical licenses to eligible streaming and download services (digital service providers or DSPs) in the United States. The MLC will then collect the royalties due under those licenses from the DSPs and pay self-administered songwriters, composers, lyricists and music publishers.

IP Audit to-do for Jan. 2018

January 2018 To-Do for Individuals and Companies who Own Intellectual Property

By Connie J. Mableson

If you individually own or if you have an interest in a company that owns intellectual property (IP) assets, January is a good time to prepare an IP audit for you IP assets. An IP audit is simply a list or database pertaining to your IP. It can help you identify IP assets, make the proper registrations to protect the IP, administer any IP licenses, help you to keep tract of the IP’s monetization, and help you collect IP royalties. Your IP audit will create an immediate and long-term impact on your assets and potential income to be collected.

STEP 1: MAKE AN INVENTORY OF ALL YOUR IP. What is IP? It includes:
A.  Copyrights: Any creative expression such as text, artwork, graphics, PPT presentations, website HTML, Website code, text on websites, and brochures. Trademarks, Patents, and Trade secrets.

B.  Your WEBSITE. Make sure you OWN your (a) URL and (b) your HTML and website. Perform a WHOIS search at www.whois.net to see if you (or your website development company) own your URL. If not, make sure you get the purported owner to transfer ownership to you and make sure the registrant’s records (like GoDaddy) are changed. Then make sure you get, from your website developer and anyone who contributed anything to the website, a release of rights to you. Under copyright law, the developer of your website owns your website unless the developer has transferred ownership to you IN WRITING.

C.  Music. IP includes any musical compositions or master sound recordings you may have made.

D.  AV Productions. IP includes any audio-visual productions you made. From corporate videos, to product videos, music videos, or any YouTube videos. This can also include films, documentaries, commercial adverts, etc.

E.  Trademarks. Are you using any word marks like company name, product names, services names? What company or brand logos are you using? Make a list.

F.  Patents. DO you have any utility or design patents?

G.  Trade Secrets. Do you have any trade secrets in the way of processes, formulas, methods, that need protection but have not been protected by filing a copyright or patent? These need to be listed and identified as CONFIDENTIAL INFORMATION. Only certain people should have access to your trade secrets and they should only be disclosed on a need to know basis and always under a Non-disclosure agreement.

Step 2: PROTECT YOUR IP.
A.  Copyrights. Any creative expression such as text, artwork, graphics, PPT presentations, website HTML, Website code, text on websites and brochures, musical compositions, master sound recordings, and audio-visual productions should be registered through the U.S. Copyright Office.

B.  Patents should be registered with the USPTO-Patent Office.

C.  Trademarks should be registered:
-at the state level. Either with your state’s corporation commission or secretary of state (each state is different), you should register your marks, names, and logos so you have priority in your state.
-federal level -USPTO. If your marks, words, slogans or logos are used in more than one state, you can apply for a federal trademark registration. Consider conferring with a Trademark attorney to get this done properly. Not all marks or names are eligible for registration.

D.  Trade Secrets can only be protected by Non-Disclosure Agreements. Make sure you have a form of NDA that includes a non-circumvention provision and is up to date.

Step 3: CHECK YOUR CONTRACTS. Some of your IP may be licensed under License or similar agreements. Make sure you have copies of all licenses in the file for the specific IP. Check the licenses to make sure you are in compliance and that the licensee is also in compliance for payments, reporting, etc. If not, you may want to see legal counsel to help you get the licensee in compliance.

Step 4: DECIDE OF YOU NEED FOREIGN PROTECTION. This may be the year you decide to obtain foreign protection for your IP. This could mean foreign copyright application, foreign trademark application or Madrid protocol or other international registration for trademarks.

Step 5: TICKLE ALL DEADLINES for filing updates, renewals, etc., in your individual/company master calendar. Trademarks and patents require renewal. Tickle these dates. Also, all of your IP contracts should have dates tickled for termination, renewal, option periods and anything in the contract that requires action by either party. By doing this, you can also budget for the renewals and have a good idea what monies you will need and when for renewals.

DISCLAIMER: The materials in this article and as may appear on www.mablesonlaw.com, www.dmcabook.com, and www.literaryattorney.com (the “materials & websites”) are made available by Connie J. Mableson, PLLC for informational purposes only and are not legal advice. The transmission and receipt of information contained in and on the materials & websites do not form or constitute an attorney-client relationship. I am not your attorney unless you have signed a written engagement letter with my firm. Persons receiving the information in and on the materials & websites should not act upon the information without seeking professional legal counsel. In the event the materials & websites are not consistent with the rules or laws governing communications of legal services in a particular state, and a client contact is generated as a direct result of such materials, Connie J. Mableson, PLLC is unwilling to assume the representation of the client contact.

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