3 New Copyright Claims Board Decisions

2024 is shaping up to be an important year for the nascent Copyright Claims Board (CCB). 

Launched in June 2022 to operate as a “small claims court” alternative to the federal court system for hearing copyright cases, the board has slowly been ramping up, both in terms of the number of cases filed and the number of cases decided. 

As of this writing, the CCB has only posted 20 final determinations, of which six were settlements or dismissals. That leaves fourteen cases that the board has truly decided and eleven of those are default determinations, leaving only three contested decisions. 

However, of the fourteen cases the board has decided, four come from the first six weeks of this year, including three default judgments and a new contested decision. One of those default determinations we looked at back in January, leaving three new ones to look at.  

As we’ve discussed recently, more decisions are coming as more and more cases are beginning to be heard. This will see the CCB wade into a variety of important areas including fair use, music licensing and much more.  

As such, we are going to briefly look at the three most recent CCB determinations and see what they indicate about the future direction of the board. 

22-CCB-0263: Shocked v. McInnes 

This case is the one of the three that was contested by both sides. It pitted musician Michelle Shocked, who filed the claim against conservative commentator Gavin McInnes.  

As the final determination noted, the facts of the case were not really in dispute. In 1988 Shocked recorded the song Anchorage, which McInnis used roughly a minute and a half as part of his Get Off My Lawn online program in late 2022.  

McInnis argued that the use was a fair use as he was discussing Shocked’s work and had been “cancelled” because of past statements she made. However, those statements (and backlash) were unrelated to the song itself. 

The CCB ruled that the use of the song was not a fair use. That McInnis had used more of the song than was necessary and it was not particularly important to the point he was trying to make.  

However, when it came to the issue of damages, the CCB found that Shocked had not proven any actual damages and, in a pattern that we have seen before, opted to award just $750 in damages, the statutory minimum.  

Analysis 

This is a case where either side can legitimately claim victory. Shocked defeated the fair use argument but was awarded only $750 in damages, not the $15,000 maximum she sought. 
The board performed a thorough fair use analysis, finding that the first three factors favored Shocked while the last was, at best, neutral. However, it is interesting that the determination did not reference or cite the Warhol ruling in any way, that’s a stark contrast to how federal courts have approached the decision.  

Overall, this points to an uphill battle for respondents before the CCB who are trying to make a fair use defense. The CCB makes it clear that the burden of proof is on the respondent, and they are not taking a broad view on the exemption, even without the Warhol ruling. 

22-CCB-0255: Hirsch v. Southern Chinese Daily News, LLC 

The case deals with Steven Hirsch, who is a professional photographer and, as part of his work as an independent contractor, took photos for the New York Post. This included two photographs of Columbia University gynecologist Robert Hadden, who was indicted at the time for sexual assault. 

According to his claim, the Southern China Daily News (SCDN), which is not to be confused with the South China Morning Post, used the two photos as part of their coverage of the story.  

Hirsh filed the claim with the CCB in December 2022 and, despite providing service to the publication, it never appeared before the board. As such, the CCB has issued a default determination, finding that the SCDN did violate Hirsh’s copyright and awarded him a total of $3,600 in damages. 

Analysis 

Once again, what is most interesting here is how the CCB arrived at its determination of damages. 

Hirsh was able to show that he had successfully licensed similar photos for $800 in the past. However, since the use was different than what SCDN did, the board opted to “discount” that license to just $600 per photo. 

From there, it awarded 3x the license fee in both photos, totaling $3,600. It once again shows the need to prove actual damages if taking a case before the CCB. Specifically, one should use licenses that are as close as possible to the alleged infringement. 

It is still a solid victory for the photographer, even if collecting on it may be difficult. 

22-CCB-0046: Case details for Oakes v. Heart of Gold Pageant System Inc., et al 

This is another case involving a photographer, Mary Oakes, who is claiming that two images of hers were used without permission by Heart of Gold Pageant Systems, a non-profit organization that hosts beauty pageants, and the alleged owner or operator, Angel Jameson. 

According to Oakes, the images were used widely on social media and elsewhere to promote pageants, though some of the details are vague and/or inconsistent. 

Neither of the respondents participated in the case. The board got in touch with Jameson, who repeatedly affirmed her intent to not participate in the proceedings.  

In the end, the board found in favor Oaks, ruling that both images had been infringed. On one of the images, one where Jameson had uploaded it to her personal social media account, the board found her and Heart of Gold jointly liable. For the other, it was just the company. 

Oakes was awarded $2,250 in damages for each image, totaling $4,500 for the case.  

However, surprisingly, the case is ongoing. Five days after the final determination was entered, Jameson filed a request for dismissal, claiming that she had evidence that the usage was licensed.

The CCB opted to treat the request for dismissal as a request to vacate and allowed her to submit evidence. She has uploaded a confidentiality agreement, but only did so three days after the deadline passed. 

Analysis 

In reading the latest filings, it is clear there is bad blood between the parties that go beyond the copyright issues. That said, the final determination is interesting for two reasons. First, how it arrived at the damages amount and how it determined liability. 

On the damages front, the CCB found that a reasonable license fee for the photo would have been $750. That was because, based on Oakes’ testimony, the range of fees was between $533 and $1,065. They took that $750 amount and, as with other cases, tripled it to determine statutory damages. 

As for liability, they found that, even though Jameson may operate the organization, that does not make her personally liable for the infringement. That only came about because she had posted the image on her personal account.  

It is going to be interesting to see how the CCB handles the aftermath of this decision. According to the CCB, Jameson was aware of the proceedings and repeatedly declined to participate. That is, until after the final determination was entered.  

Though the CCB has a duty to protect respondents and ensure fairness, it also must enforce its rules, meaning its response in this case will have to strike a balance between those two things. 

Bottom Line 

The CCB is still a young institution. It is both finding its way and its place at the same time we are learning about how it is ruling. 

To that end, two things have become very clear. 

First, the CCB is doing an excellent job being a good steward of copyright. Its decisions, even if one disagrees, are well-researched and argued. They are taking their responsibilities seriously and their determinations are as thoughtful as any federal court opinion.  

Second, they are clearly following a formula to when it comes to determining damages. Namely that they are awarding 3X any actual damages. If no actual damages are proven or they are less than $250, then they are awarding the minimum of $750. 

This means that the fears of $15,000 damages being awarded constantly have not and will not likely come to fruition. Though past cases at the CCB are not precedent for future ones, the pattern is nonetheless very clear. 

Overall, these determinations paint the CCB in a good light and position it as something that can be useful to resolve more copyright disputes. Still, there are a lot of new cases coming down the pipeline so it is likely that we will have more to look at very soon.