A new year is upon us and, while 2021 proved that a new year doesn’t mean a fresh start, it is still an opportunity to both reflect on the past and look ahead.
To that end, 2022 is looking to be a major year for copyright in a myriad of ways. However, in pretty much all the cases below, the table was set for them in years past.
But that raises the question, with the new year what are just a handful of the major copyright stories on the horizon. While there are far too many for any single list, here are 5 copyright stories that you should definitely watch in 2022.
1: The Copyright Small Claims Court
On December 2020, Congress passed the Copyright Alternative in Small-Claims Enforcement Act or the CASE Act. Part of that act established a Copyright Claims Board (CCB) that operates under the U.S. Copyright Office (USCO) and is intended to act as something of a small claims court for copyright matters.
The idea behind the CCB is simple, it’s meant to be a cheap and easy way to handle copyright disputes over small dollar amounts. To achieve that, the process is meant to be accessible without an attorney and is done remotely. However, damages are limited to just $30,000 per case.
According to the USCO, the CCB should be up and running some time in the first half of this year. However, many questions still remain regarding it. How much use will it see? Will defendants agree to use it since it is optional? Exactly how will the process work?
The USCO delayed the opening of the CCB by 180 days late last year, however, the Register of Copyrights, Shira Perlmutter, has said it will be in operation “well before” the new deadline.
2: The Battle Over Comedy Tracks
In December 2021, Spotify made the abrupt decision to remove a long list of comedy performers from their streaming service. The reason, was a dispute over alleged performance royalties for the compositions of the stand-up routines.
With every audio track, there are two copyrights, a copyright in the audio recording itself and a copyright in the composition behind it. Musicians receive royalties from both via their record labels and publishers. However, Spotify (nor other streaming services) have been paying royalties on the composition for comedy and other spoken word tracks.
However, a new performing rights organization, Spoken Giants, is aiming to change that and has been negotiating with streaming services to reach a deal on royalties. That has not happened yet as of this writing.
Spotify, in response to the lack of an agreement, removed the tracks of many of the comedians involved. Other streamers, such as Apple and Google, have the tracks still up as negotiations continue. A resolution on this issue is likely to come about in 2022, possibly creating a landscape shift for comedians and other spoken word artists.
3: Copyright and the Takings Clause
One of the more confusing areas of copyright law in the United States is how it impacts states. Under the current law, all copyright matters are federal. However, because of state sovereign immunity, it’s technically not possible to sue a state government or any of their components in a federal court.
This came to a head in 2017 when the filmmaker Rick Allen sued the State of North Carolina over alleged illegal copying of footage he shot of Blackbeard’s sunken ship. Allen lost that lawsuit last year when the Supreme Court ruled against him, saying that Congress had overstepped its bounds when trying to abrogate state sovereign immunity.
However, that ended up not being the end of the issue. The district court is allowing Allen to try again, this time pursuing the case under the takings clause, which prevents states from taking citizens’ property without proper compensation.
Several such cases are going on right now and, though we likely won’t see a definitive answer in 2022, it’s going to be a copyright story to watch.
4: The Unicolors Case
Unicolors is locked in a long-running case against fashion retailer H&M. According to Unicolors, the retailers infringed on one of their designs and sold various goods with it. Though the infringement isn’t in question, the copyright registration is.
In the United States, a copyright registration is required before a lawsuit can begin. However, H&M alleges that the registration contained an error, namely that it was included in a collective registration when it should have been separate. A ruling at the 9th Circuit put the lower court victory, and $800,000 in damages, in jeopardy, prompting Unicolors to petition the Supreme Court.
The Supreme Court took the case and is scheduled to rule this year on whether an innocent error in a copyright registration can or should result in the case being dismissed.
5: The Public Domain Expands
Finally, with the new year comes new works that lapse into the public domain.
Due to the Sony Bono Copyright Term Extension Act in 1998, nothing entered into the public domain in the United States between 1999 and 2019. However, for the first few years of new public domain action, very little that is still culturally relevant has lapsed.
Though Robert Frost’s poem Stopping by the Woods on a Snowy Evening lapsed in 2019 and F. Scott Fitzgerald’s The Great Gatsby did so in 2021, this year sees the original Winnie the Pooh story by A.A. Milne turn copyright free.
Winnie the Pooh is unique in that, even though the character was not originally a Disney character, it’s become wholly identified with Disney. Disney has produced countless movies based on the character and, though the copyright in Disney’s works remains, others will be free to adapt the original story.
It will be interesting to see if and how this changes both Disney and the public’s relationship with the iconic character as access to the original story begins to open up. It will also be a test for the impending lapse of Steamboat Willie, Mickey Mouse’s original cartoon, in a few years.
It’s pretty clear that this will be a major year for copyright. The CCB alone has the potential to be a major ground shift in this area, but the other stories will continue to shift and change the landscape on their own.
So keep an eye on these and other important copyright stories. As with previous years, I’ll be covering them four times per week in the 3 Count column as well as in full posts right here.
So, if you haven’t done so yet, take a moment to either follow this site on social media or sign up for the newsletter using the links in the sidebar. This is definitely going to be a year that you don’t want to miss.