3 New and Interesting Cases Before the Copyright Claims Board

US Copyright Office Seal

In just a few days, the Copyright Claims Board (CCB) will celebrate its second year of operation.

Intended to serve as a “small claims court” for copyright disputes, the CCB is designed to be a faster and cheaper alternative to the federal court system. The types of claims it can hear are much narrower, and damages are limited to $15,000 per work or $30,000 per case.

To that end, the CCB has been something of a mixed bag. Though some filers, such as Joe Hand Promotions, have found great use for the CCB, others have struggled to use it effectively.

As of this writing, the CCB has received some 867 cases and has issued 26 final determinations. Most cases are rejected, opted out or settled before a final determination is necessary.

Still, the CCB has heard a wide variety of interesting cases. These include a battle over the fair use of a stand-up comedy special and a dispute with Disney over a book deal. We’ve also seen cases involving tarot cards, printed miniatures and flight cockpit recordings.

Every so often, I try to revisit the CCB and see what new and interesting cases are being contested. As usual, the board does not disappoint.

With that in mind, here are four new and interesting cases before the CCB.

1: The Battle over Hobo Snails

First is the most recent case. Filed in February 2024, Chalas v. Freeman (24-CCB-0060) pits two pin designers in a battle over a snail with a bindle.

Lauren Chalas, the creator of The Roving House Snail, filed the case. She alleges that Laura Freeman created a derivative work based on her creation and offered it for sale at her physical location and various online stores. She claims to have sent a cease and desist to Freemen and takedown notices to her hosts.

Freeman has responded to the claim, saying that her work was original and that she was unaware of Chalas’ work before the notices. She also claims that the idea is not unique to Chalas. She highlighted many examples of snails (and other creatures) with bindles that predate her work.

Both parties are representing themselves in this case.

My Analysis

Chalas has an uphill battle here. Freeman did a good job highlighting how common the “snail with a bindle” concept is and how many places it has appeared. She also makes the case that the concept is not and cannot be protected by copyright.

To that end, I think Chalas’ better argument might be trademark, not copyright. Chalas points to evidence of confusion between her brand and Freeman’s work. However, the CCB cannot hear trademark disputes, meaning that trademark won’t be an issue here.

2: Fishing for Lower Damages

The next case is Wright v. Fishing For Hip Hop LLC, et al (23-CCB-0104). This case pits artist Jon Q Wright against a group of fishing tournament organizers. Wright alleges that the respondents unlawfully used his artwork to promote multiple fishing tournaments, including in online and printed media.

What makes the case unique isn’t the alleged infringement but how it has unfolded.

Initially, the respondents didn’t participate in the case. Despite being served in July 2023, none of the respondents registered for the CCB or participated in the case. In April 2024, the CCB issued a notice of proposed default determination, which would have awarded Wright $20,000 in damages. If it becomes final, it would be easily the highest damages award of the CCB to date.

However, after that default determination came out, Malik Wilder began responding. He made several arguments, including that his use was fair use, that a third-party contractor was responsible and that the events were held for charity, not commercial.

Wright has responded to those claims, saying that the respondents ignored multiple attempts to communicate before and after the case was filed and that the new evidence only supports their liability.

My Analysis

Wilder’s arguments are, most likely, too little too late. While the board might give some difference to the non-profit nature of the events, the arguments don’t really help their case. They admit to using the image, and their fair use arguments either misunderstand or misrepresent the actual fair use test.

The major question is, will the CCB alter the damages amount? Will the board lower it based on the new evidence or keep it the same since the respondent waited so long to participate? We’ll have to wait and see.

3: A Smaller, But More Complicated, Infringement

Finally, we look at the case of Papula v. Akgobek (23-CCB-0240), which was initially filed in July 2023.

The case pits designer Wendy Papula against Etsy seller Celil Akgobek. According to Papula, Akgobek sold t-shirts with her “Liberal Tears” design without a license. To make matters worse, after Papula filed a DMCA takedown notice with Etsy, Akgobek filed a counternotice to restore the listing.

However, according to Akgobek, she had a valid reason to file that counternotice. She claims to have paid for a commercial license of the artwork. Unfortunately for them, that seller was a fraud. Akgobek claims to have removed the image even before filing the counternotice and that they only made $17.49 from the sale of that shirt, which was only available for two weeks. They also claim that the claimant has only made 9 shirt sales in 8 years.

Papula, however, is still seeking $5,000 in damages, the maximum allowed under the “smaller claims” option.

My Analysis

The case is interesting for two reasons. First, it’s one of the few under the “smaller claims” option. Second, the respondent has a compelling case for why they were unaware of the infringement.

While being unaware of the infringement doesn’t excuse it, it may weigh on damages. Combined with both parties’ low sales (Note: Papula declined to provide proof of their sales), the most likely outcome is that the CCB will award the statutory minimum of $750 in damages.

While the evidence presented does seem to indicate infringement, the CCB is unlikely to award additional damages, especially given its history.

Bottom Line

As the CCB begins its third year of operation, it continues to find its footing and rhythm.

These three cases test the CCB in ways it has never seen before. It will be interesting to see how the CCB meets these challenges.

While I definitely think there are areas where the CCB could improve, it’s clear that the board has done an overall good job of taking the issues before it seriously and handling them professionally.

The greatest fears about the CCB never came to fruition. It is not a haven for copyright trolls, nor has it been abused by would-be litigants. The CCB has done well to guard itself against such misuses, all the while addressing complicated copyright issues with skill.

These cases, along with others we’ve discussed here, will give us clear indications on the direction the board is taking and what we can expect from it in the years to come.

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