Since the launch of the Copyright Claims Board (CCB) in June 2022, the board has seen over 500 cases filed with it, the majority of which have been closed due to a mixture of filer errors, including not amending incomplete complaints, failure to serve respondents and other issues.
However, as of two weeks ago, the board had only reached a final determination in two cases. One was resolved through a last-minute settlement and the other, which we covered back in March 2023, is the first and still only time the CCB has made a decision in a case.
That fact remains unchanged. But, as we noted in May, there were many more contested cases before the board, setting the stage for more decisions.
To that end, the CCB has handed two down more final determinations over the past two weeks. However, neither of the determinations deal with a decision by the CCB itself. Instead, the first is an agreement to dismiss a case at the last moment and the other is a last-minute settlement between the parities.
While neither case provides much insight into how the CCB will eventually rule in more complicated cases, they do provide insight into how cases are ending at the later stages of the CCB process and how well the CCB is fulfilling its stated function.
As such, here’s a look at these two cases, including both their history and their outcome.
22-CCB-0072: Scott Douglas Ora (Leo Robin Trust) v. Warner Chappell Music –
The case pitted the estate of musician Robin against the music publisher Warner Chappell Music. The allegation was that Warner Chappell Music licensed two songs Robin wrote the lyrics for in the 1940s for the 2019 film The Aftermath without permission or compensation to the estate.
However, Warner Chappell hit back in the case, claiming that the songs in question were works made for hire and were owned by them, not the estate. To that end, Warner provided several copyright registration and renewal certificates that show the works being of corporate authorship.
The claimant then responded by seeking additional discovery, which the CCB largely agreed to. Warner then provided that discovery, which resulted in Warner turning over 250 pages of documents relevant to the case, including original contracts and earnings reports for the songs at issue.
Less than a week after the evidence was provided, Ora attempted to withdraw the claim, but did not provide any reason for wanting to do so.
However, Warner objected to the withdrawal, saying that allowing the case to be withdrawn without prejudice, meaning it could be refiled, would be unfair after the effort Warner had put into litigating the case.
The CCB then turned back to Ora, who agreed to withdraw the case with prejudice. In its final determination, the board agreed to allow the case to be dismissed with prejudice, bringing it to a conclusion.
What We Learned
The pattern of this case would be more or less normal for any copyright case before a federal court. The claimant made an allegation, the respondent filed a response and, after discovery, the claimant realized that their case was weak and opted to exit it early.
Looking at the evidence, it’s easy to see why. It’s pretty clear that, though Robin authored the lyrics, the copyright was always held by corporations and any case saying counter to that was going to face an uphill battle.
Even though Warner rightfully bemoaned the time and expense they spent litigating this case and providing discovery, their costs would have likely been much higher if it had gone through the regular court system. In short, it was better for everyone that the case was heard by the CCB.
However, the CCB is also making it clear that they aren’t a place to try speculative legal arguments. Though we can’t know how the CCB would have ruled on Warner’s objection to the dismissal, it seems likely that they would have sided with Warner and at least ensured that the case was dismissed with prejudice.
The only issue that remains open is the issue of attorneys’ fees. Warner said they would like the CCB to retain jurisdiction over that issue. The CCB can award respondents such fees if the claim was filed in bad faith, but the board didn’t indicate how it might work in this case.
22-CCB-0269: Armatus Dealer Uplift, LLC v. Wooden Automotive Consultants
We looked at this case back in May as part of the examination of 5 contested cases before the CCB.
The case pits two retail warranty reimbursement firms against each other. These are companies that help car dealers get full reimbursement from manufacturers for warranty repairs they perform.
According to the claim, Armatus created a short video explaining their service, only to have Wooden Automotive Consultants feature a similar video on their site, including very similar scripts despite different visuals.
Wooden initially denied copyright infringement, saying that it was a third party they had hired that created the video and that they removed the video immediately after learning. They further claimed that the elements of the video that were the same were not protectable by copyright.
In my analysis of the case, I found Wooden’s arguments to be flat. Though they are sympathetic as they didn’t directly commit the infringement, they are still the ones who are liable as it is their site distributing the video and their service it was promoting.
And it seems that Wooden agreed. In a settlement conference in June 2023, the two sides reached an agreement to end the case. Wooden agreed that the video was infringing, agreed to stop infringing Armatus’ rights and agreed to pay $9,000 in damages.
As such, in its final determination on this case, the board accepted the settlement and agreed to dismiss the case pending the proof of payment.
What We Learned
This case really highlights the good that the CCB can do. If this case had gone before a federal court, it’s likely that both sides would have spent significantly more money and had the case taken significantly longer.
To be clear, this case was filed in December 2022 and settled, at a late stage, in June 2023. That’s only about six months of “litigation” and that’s after a significant delay in service added a month. Though both sides used legal counsel to handle the case, it’s likely that their legal bills would be much higher in a regular federal court case. That likely would have led to a significant increase in damages sought to cover those costs.
Though it was a relatively last-minute settlement, the case still highlights how the CCB can help both sides save time and money as it is very likely that, without the CCB, this case would have been a federal lawsuit that would both be ongoing right now and racking up large legal bills.
What is most striking about both of these cases is that neither of them would be particularly out of place in a regular court. These are both common copyright issues that raise common copyright questions.
However, both cases would have been significantly more costly if they had gone the traditional route. Simply put, there’s a reason why both cases were filed with the CCB and why, in both cases, the respondent opted into the proceedings.
Even though neither of these cases were actual decisions by the CCB, both nicely illustrate what the CCB might be best at, being a way to resolve copyright disputes that is more efficient than the traditional path.
Though the CCB has seen the majority of the cases filed with it either dismissed or settled, that is also fairly normal. Simply put, most federal cases don’t make it all the way to a trial, so it’s no shock that the same is true for the CCB, especially given how new the system still is.
In the end, these two cases make me feel, possibly for the first time, that the CCB is living up to its promise, at least in some cases. There’s still a great deal of work to be done, but it is obvious that the potential is there.