4 Copyright Claims Board Cases to Watch

As we’ve discussed recently, the Copyright Claims Board (CCB) is the new copyright small claims court that was introduced as part of the Copyright Alternative in Small-Claims Enforcement Act (CASE Act) of 2020.

The CCB opened its doors in June of this year, and we’ve already looked at the first 100 cases. As of this writing, that number has grown to 146. In that time, we’ve seen a wide variety of cases covering a many different types of works, allegations of infringement and more.

What we don’t have is a lot of conclusions. Of the 146 cases filed, only 7 have been closed and none through a decision by the CCB itself. 

There are two cases where the respondent has opted out, two more where the case was voluntarily dismissed (likely due to a settlement) and three where there was a procedural problem with the case that wasn’t remedied in a timely manner.

This means that there are a great deal of unknown variables with the CCB. How many respondents will choose to opt out? How will the CCB rule when it finally does? Is this process worthwhile?

Those answers will come in time, but for those that are most interested in finding out, there are a handful of cases that deserve to be watched closely. To that end, here are five cases currently before the CCB that you should be watching.

1: 22-CCB0-0012 – Bronner v. EssayZoo

This case was filed by Benjamin Bronner, a university professor who penned a series of instructions and paper prompts that were eventually offered for sale, without his permission, on the essay mill website EssayZoo.

Given the nature of the case and the use of the CCB to target an essay mill, it was already of great interest to me and I wrote a full article about it in June. However, the case has taken another strange turn that could raise other legal questions regarding the CCB.

Bronner quickly discovered that much of the information about EssayZoo was false, including their stated address. This became a significant issue when he attempted to serve EssayZoo with the documentation. 

Under the rules of the CCB, once a claim is accepted by the board, the claimant is required to serve the documents to the respondent. However, due to the falsehoods of EssayZoo, that proved impossible to do so directly.

As such, Bronner opted for an alternative path, subpoena via publication. While this is a fairly common approach in regular court cases, the rules of the CCB make this difficult. Bronner sought advice from the board, but received very little help. 

With that in mind, Bronner crafted an infringement notice that he hopes complies with the CCB rules and spent $210 having it repeatedly published in a paper of record for EssayZoo’s stated area. 

It is unclear if this will be adequate, and this case could a landmark one in dealing with respondents that have either provided false contact information or otherwise attempt to avoid service.

2: 220-CCB-0037 – Wood v. Spirit Halloween Superstores LLC 

In this case, artist Thomas E Wood alleges that Spirit Halloween infringed the copyright of a character he drew entitled Ringmaster: Dark Carnival by converting the character into a mask that was sold at Spirit’s stores.

The initial claim, however, has been rejected and Wood has been asked to file an amended complaint. But, while a large number of CCB claims have been rejected in this manner, Wood’s case is somewhat unique in that it was rejected for just one reason: Lack of evidence about access.

According to the rules of the CCB, for a claim to move forward, it must claim four things:

1. That the claimant holds a valid copyright in the work.
2. That the respondent used one of the exclusive rights without permission
3. The respondent had access to your work 
4. The respondent’s work is substantially similar to the original work

In this case, the board found that the first, second and fourth points were adequately made in the complaint. However, there was no claim of access. 

Access, however, is often a very difficult thing to show. It’s often claimed or alleged in a complaint, but not shown or proven until discovery is finished. However, with the CCB, discovery is very limited and this could raise issues in cases where the theory of access is nebulous. 

In this case, Wood has until September 19, 2022 to file an amended complaint. He has not done so as of this writing, but this case could be important for establishing how the CCB will handle claims where the alleged access is unclear.

3: 22-CCB-0081 – Hiro LLC v. Dragvertising LLC

This case stems from a dispute between a company that was launching a mobile app (Hiro) and a company that was briefly hired to help design that app, Dragvertising. 

What makes this case different is that the case was filed by the alleged infringer, who is seeking a judgment of non-infringement. This is, to my knowledge, the only such case before the CCB right now.

According to this claim, Hiro originally hired Dragvertising to design their mobile app. However, when they found out that delivered product was from free templates available on the internet, they severed the relationship and started over. 

However, when the app was published, the respondent filed takedown notices with Google and Apple, prompting counternotices to be filed by Hiro. Hiro is now suing alleging that the takedowns were filed in bad faith, and they are also seeking a judgment of non-infringement.

At this time, only the claim has been filed with the CCB and the board has not decided if it can move forward. Regardless, this will be a case to watch as it is an extremely rare one before CCB, namely one dealing with allegedly false takedown notices and seeking a ruling of noninfringement. 

4: 22-CCB-0112 – Paramount Pictures Corporation v. JMC Pop Ups LLC

This is another case we covered in a full article. In this case, Paramount Pictures is filing a claim against a pop up restaurant operator that held two separate pop up events featuring a McDowell’s-themed restaurants that were patterned after the restaurant featured in the Coming to America films. 

The case is interesting for two reasons.

First, it’s interesting because it’s the only example, to date, of a large company using the CCB as a claimant. Though many large companies are listed as respondents, this is the only time a large rightsholder has filed a claim through it.

Second, the case actually deals with some fairly complex and nuanced issues. McDowell’s is, by admission in the film, a parody of McDonald’s. There is also a mixture of potential copyright and trademark issues, of which the CCB can only rule on the former.

Of all the cases filed with the CCB, this is among the most complex and nuanced, making it an interesting potential test for how the CCB will approach such issues. However, at this time, only the claim has been filed.

Bottom Line

In the end, pretty much every case before the CCB is interesting for one reason or another. Even cases that are very similar to one another, such as the various photographers targeting websites, are interesting in aggregate.

Simply put, the CCB is an untested system and the process is filled with unknown variables. Anyone rolling the dice on the CCB now clearly feels that they were not receiving adequate opportunities for redress under the traditional system. 

Combine those two elements together, and you have an interesting mixture of uncertainty and underserved rightsholders that make for compelling study and reading.

Right now, we don’t know where the CCB will fit in when it comes to addressing copyright infringement. The picture will become much more clear over time, but it will only be because of the individuals and companies that took a chance on it.