WASHINGTON – Positioning the legislation as “bipartisan legislation to protect middle-class creators from copyright infringement,” co-sponsors of the Copyright Alternative in Small-Claims Enforcement Act of 2019 (the “CASE Act”) reintroduced bills in both the House and Senate last week.

The CASE Act would amend titl3 17 of U.S. code to “establish an alternative dispute resolution program for copyright small claims.”

While the CASE Act would likely have little impact on adult studios whose work is often subject to infringement, it could make pursuing infringement claims far less expensive – and thereby far more feasible – for independent adult photographers and content producers.

“The establishment of the Copyright Claims Board is critical for the creative middle class who deserve to benefit from the fruits of their labor,” said Rep. Hakeem Jeffries (D-NY), who introduced the bill in the House along with co-sponsor Doug Collins (R-GA). “Copyright enforcement is essential to ensure that these artists, writers, musicians and other creators are able to commercialize their creative work in order to earn a livelihood. The CASE Act will enable creators to enforce copyright protected content in a fair, timely and affordable manner. This legislation is a strong step in the right direction.”

A companion bill has been introduced in the Senate, where it is co-sponsored by Sens. John Kennedy (R-La.), Dick Durbin (D-Ill.), Thom Tillis (R-N.C.) and Mazie Hirono (D-Hawaii).

The CASE Act was originally introduced in 2017 but was never brought to a vote, despite enjoying bipartisan support then, as well. The original bill’s co-sponsors included Reps. Jerrold Nadler (D-N.Y.), Martha Roby (R-Ala.), Hank Johnson (D-Ga.), Ben Cline (R-Va.), Brian Fitzpatrick (R-Pa.), Ted Lieu (D-Calif.); and Judy Chu (D-Calif.).

Supporters of the bill say the CASE Act would help address a vexing problem with copyright litigation: The overwhelming majority of infringements on photographic works carry with them relatively low recoverable damages – and lawyers who specialize in intellectual property generally only take on cases with larger potential payouts.

This leaves photographers whose work has been infringed on in a pickle: Do they file a lawsuit they can’t truly afford to fund, gambling that they will prevail and have their legal costs paid by the infringing party, or allow infringement on their work to occur without seeking any redress at all, save for issuing take-down notices?

Under the CASE Act, photographers would have the option of presenting their claims before a “Copyright Claims Board,” which would be established within the Copyright Office. The Board would consist of three Copyright Claims Officers appointed by the Librarian of Congress. The Act stipulates that each Officer would be an attorney with “not fewer than 7 years of legal experience.”

Crucially, appearance before the Copyright Claims Board would be voluntary – meaning that any defendant could decline to have the dispute head by the Board and instead demand a jury trial. § 1504 of the Act stipulates that “the right of any party to instead pursue a claim, counterclaim, or defense in a district court of the United States or any other court, and to seek a jury trial, shall be preserved.”

The legislation is supported by a variety of photographic trade associations, including the National Press Photographers Association (NPPA), North American Nature Photography Association (NANPA), Professional Photographers of America (PPA) and American Society of Media Photographers (ASMP).

“People will still be able to pursue infringement cases in federal court but this is for individuals who cannot afford that expense,” NPPA General Counsel Mickey Osterreicher said last week. “The small claims copyright tribunal may be a viable alternative when seeking a small licensing fee or [for rightsholders] wishing to represent themselves.”

The CASE Act is not without its critics, of course. When it was first proposed in 2017, a coalition of organizations sent a letter to Jeffries and former Rep. Tom Marino of Pennsylvania (who resigned from office in January) in which they argued the Act would not solve the problem it seeks to address.

“The undersigned organizations and associations appreciate the challenges low-value infringement cases pose to individual artists,” the coalition wrote in its letter. “Unfortunately, the small claims system established by the CASE Act would not successfully address the problem. Defendants rarely would consent to the jurisdiction of the small-claims tribunal because it would not be in their interest to do so; they likely would not waive the traditional benefits and protections of federal court litigation.”

To the extent that anyone would willingly submit to the authority of the Copyright Claims Board, the coalition argued, it would be “unsophisticated consumers who would not know to opt out or who would fail to respond altogether, leading to a default judgment.”

“This would turn the Board into a default judgment mill, attractive to abusive litigants because of the lower costs of initiating an action compared to federal court,” the coalition asserted in its letter.