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When designers are confronted with the unauthorized use of
their work, one of the biggest issues they face is the complexity and cost of
going to court to enforce their rights under United States copyright law.
Earlier this year, Congress requested that the U.S. Copyright Office conduct a
study, with input from potentially interested parties, on the following:
The second proposition, if
enacted, would change the tools that designers and artists have used to protect
their rights since the founding of this country.
Small claims courts are quite common, but they are typically
used to provide a cheap and accessible process for dispute resolution within a
court that is specifically designed for hearing civil cases in which the
economic damages are small—generally less than $10,000. At this time, there are
no small claims courts in the federal judicial system, and the creation of such a court for copyright
disputes would represent a
significant change to the federal court system.
It is important to note that, as a constitutional matter, the
creation of a federal small claims judiciary creates new considerations
regarding two important constitutional questions. First, the rights of
designers, artists and authors are constitutionally protected under Article I,
Section 8, Clause 8 of the Constitution, wherein Congress shall have the power “[t]o promote the progress of science and
useful arts, by securing for limited times to authors and inventors the
exclusive right to their respective writings and discoveries.” Second, in Article
III of the Constitution “[t]he judicial power of the United States, shall be
vested in one Supreme Court, and in such inferior courts as the Congress may from
time to time ordain and establish.” The creation of such courts would be within
the power of Congress if the
Congress—the body governing copyright matters as well as the copyright
office—determines that such a court is necessary.
Stated simply, designers and artists have a constitutional basis for their rights, but the high-wire
act that Congress is contemplating—how to fairly protect copyrights while
providing an efficient court system that attempts to balance the competing
interests of creators and commercial users of creativity—is perilous. It raises
significant questions, such as: What are the implications for designers if such
courts are established? Will copyright small claims courts actually reduce the
complexity and cost of recovering damages, lost sales or reducing the
complexity and cost of recovering reasonable licensing fees? Or is this merely
another attempt by big media to reduce the rights of the creative class by
forcing them to accept the limited damages ceiling typically associated with a
small claims court system?
Under such a small claims framework, the creative class could
benefit if the proposed court permitted relaxed
rules for an artist and reduced the ability of a party to harass an artist via
the litigation tactics associated with a high stakes copyright lawsuit, relaxed
the formalities associated with the discovery of evidence, and, most
importantly, reduced the expedited registration fees (currently $790; normally
$35 for regular filings) that most artists are required to secure before they
can bring a copyright infringement action in federal district court. In addition,
if a small claims court reduced the need for attorneys’ fees it would be a significant factor in reducing the
burden an artist or designer faces in securing compensation for unauthorized
uses of their works.
If the proposed new court places a designer or artist on the
same footing as a well-funded defendant, reducing the options for expensive
legal maneuvering, or even eliminating the need and cost associated with a
lawyer, a copyright small claims court could be a welcome revolution for
designers. However, those in Congress who proposed such a solution did not
consider that most copyright claims are for large sums—otherwise, they would
not have been raised. Copyright owners generally decline to engage in disruptive
litigation when the damages are minor. The proposed small claims court
undermines the fundamental principles forming the basis for redress under the
copyright statute. Specifically, the damages provisions of copyright law were
constructed so as to promote the registration of copyrights by creators and to
raise the specter of large penalties for those who infringe. In sum, the
framers of copyright law used free-market principles to promote registration
and to put a chill on the urge to infringe. Small claims courts only address
one side of this equation and, as with most changes to long-standing law, the
unintended consequences are bound to be unpleasant.
Currently, the U.S. Copyright Office is accepting statements
from parties who have an interest in the proposed small claims court. At this
time, parties as diverse as Microsoft, Graphic Artists Guild, Google and the
Authors Guild, in addition to numerous individuals and law firms, have
commented on the proposal. If you wish to comment, you must submit your letter
no later than October 19, 2012.
For further information, visit: http://www.copyright.gov/docs/smallclaims/.
For instructions on submitting a comment, see: http://www.copyright.gov/fedreg/2012/77fr56874.pdf
Frank Martinez, a former designer and Design Patent Examiner, founded The Martinez Group PLLC in 2008. Frank earned a BFA in Fine Art from Pratt Institute in New York. He served as Production Director for Landor Associates in New York prior to attending
law school. Frank, after having been a Design Patent Examiner at the U.S. Patent and Trademark Office, has worked closely with design professionals for many years in both design and legal capacities. Frank Martinez by reason of his experiences understands
firsthand the business and intellectual property issues faced by designers. Frank is also an Adjunct Professor at The School of Visual Art, in the Designer as Entrepreneur MFA Design Program, where he teaches Intellectual Property and the Law.
Through “INitiative,” a program created by AIGA and The Creative
Group (TCG) to support in-house designers, AIGA chapters host local in-house design events across the country.
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