The Battle Over Band Artwork

In copyright, as with life in general, breakups are often messy. This is especially true when individuals who were originally collaborators go their separate ways.

A recent final determination by the Copyright Claims Board (CCB) highlights such a case.

The case, 23-CCB-0037 Osuchowski v. Lewis, et al, was first filed in January 2023. It pitted Charles Osuchowski, a former member of the band Obsidian, against three of his former bandmates, Tyler F. Lewis, Kathy E. Diaz and Christopher Annis.

The case was hotly contested when I first wrote about it in January 2024. Now, with the final determination, we see how the CCB addresses various issues, including copyrightability, joint authorship and implied licenses.

It’s also one of the rare cases in which the damages are not the most interesting part of CCB’s analysis. Instead, the copyright issues themselves leap out in the decision.

Background of the Case

Charles Osuchowski filed the claim. According to the factual history, he was a member of the band Obsidian from 2018 through July 31, 2022. During that time, he created five separate graphical works the band used on merchandise and promotional material.

Those works were entitled A Swamp, Lips, Living Dead, Eros and Vultures. According to Osuchowski, when he left the band, he demanded that the respondents stop using those works unless they obtained a license.

The other three members, who are still in the band, did not obtain a license.

The dispute initially went to state court in Florida. However, the two sides agreed to a settlement in January 2023. However, that settlement excluded copyright claims, prompting Osuchowski to file with the CCB that same month.

Osuchowski made a variety of allegations. He accused the band of continuing to sell merchandise featuring his work, using the images online and, most notably, releasing a new collection CD that featured Lips as part of the cover.

Osuchowski filed the claim under the “Smaller Claims” provision. This provision capped his damages at $5,000 but, theoretically, offered a more streamlined track. However, that was a moot point as the CCB ruled that the band had only infringed on one of the works.

In the end, the board awarded Osuchowski just $750 in damages.

The Board’s Reasoning

There are many moving parts in this case. However, first, Osuchowski had to prove that the works in question were protectable by copyright and that he was the sole owner.

The second part was vital as the respondents claimed to be co-authors of several of the works in question. If they are, they have equal rights to use the works as Osuchowski. As such, the board took each of the works individually.

The board found no potential evidence of infringement with two works, A Swamp and Vultures, so it made no copyright determination.

The board ruled that Living Dead was a joint work between Osuchowski and Lewis. With Eros, the board found that it contained no protectable elements and didn’t qualify for copyright protection. That left just Lips, where the board found that the image could be protected and that it was solely Osuchowski’s work.

However, even with that one work, Osuchowski alleged multiple infringements. These included selling merchandise featuring the artwork and using the image online and on the aforementioned collection CD.

Unfortunately for Osuchowski’s arguments, he faced a significant problem. He acknowledged that the band had the right to use his artwork while he was a member of the band. There was little to no evidence of the band creating new merchandise or new material after Osuchowski left.

According to the board, under the right of first sale, the band could legally sell and distribute its existing stock, including merchandise at shows. Likewise, all the images posted online predated Osuchowski’s departure. According to the board, all these uses were permitted under the previous license.

However, that still left the collection CD. The board ruled that Lips was unlawfully used on that CD cover, even though it was quickly replaced. Since Osuchowski was seeking just $750 per work, the board awarded $750 for that infringement.

However, only Lewis is liable for those damages as the board found his co-respondents were not at fault.

What the Determination Means

This case is extremely complex, especially for the CCB. There are five separate works at play, each with various authorship and copyrightability issues, and multiple alleged infringements of each.

The board went through it very methodically. The final determination is 16 pages long, including 9 pages for the determination and 7 for a findings of fact attachment.

The board discussed many issues in this case, and this overview has barely skimmed the surface.

That said, this outcome highlights two things. First, the CCB does an excellent and thorough job parsing complicated issues, even on “smaller claims” cases. It’s a well-reasoned and well-cited determination.

Second, the “smaller claims” track is not an automatic fast lane. This case took over two years to complete, far longer than many non-smaller claims cases.

To be clear, I don’t think this is the CCB’s fault. This was a complicated case with many different issues and a large amount of evidence. It was never going to be quick.

Still, many who choose the “smaller claims” track do so because they want a quicker resolution. However, they should be aware that that is not guaranteed, especially if the case is complicated.

Bottom Line

With the CCB, most of the cases we’ve covered have been relatively straightforward, with damages being the big question.

However, this case flips that on its head. Damages were never really a big issue. Osuchowski wanted the statutory minimum for each of the five works and was only awarded it on one.

Instead, the case hinged on fairly serious copyright questions. When does a work qualify for copyright protection? When is a piece a joint creation? What does an implied license cover? Etc.

The CCB addresses these questions masterfully. The final determination is lengthy, but it had to be. There are many moving parts to this case.

Ultimately, this case is so complicated that it feels like a bad fit for the CCB. However, the case would never have been practical without the CCB. The reasonable damages were too low for a federal court case.

Good fit or not, the CCB still handled it well, and despite the lengthy time frame, it was likely much faster than a similar federal case.

Ultimately, my main hope is that this resolves the issue between the members. If the CCB can resolve this issue, I suspect everyone involved will be much happier. It’s been ongoing for nearly three years, so concluding it is likely as important as determining a winner.