Statement of the United States Copyright Office
Subcommittee on Courts,
the Internet, and Intellectual Property,
Committee on the Judiciary
United States House of Representatives
109th Congress, 2nd Session
March 29, 2006
Remedies for Small Copyright Claims
The Copyright Office is pleased to present the Subcommittee with its observations on the issue
of remedies for small copyright claims.
In preparing the Report on Orphan Works which the Office released two months ago, the Office
was told by a representative of photographers that a new mechanism is needed to adjudicate
small copyright infringement claims because the cost of litigating in federal courts is
prohibitively expensive in many cases.(1) While the Office did not believe that this issue relates
directly to the problem of orphan works or to the Office's proposed solution to that problem, the
Office observed in its Report on Orphan Works that:
We are sympathetic to the concerns of individual authors
about the high cost of litigation and how, in many cases, the individual
creator may have little practical recourse in obtaining relief through
the court system, particularly against infringements involving small
amounts of actual damages. This problem, however, has existed for
some time and goes beyond the orphan works situation, extending
to all types of infringement of the works of individual authors.
While there are some mechanisms in place to help address the
problem, such as enforcement by collective organizations or timely
registration to secure the availability of statutory damages and
attorneys fees, we believe that consideration of new procedures,
such as establishment of a “small claims” or other inexpensive
dispute resolution procedure, would be an important issue for
further study by Congress. It is not, however, within the province
of this study on orphan works.(2)
In subsequent discussions over proposed legislation to address the orphan works problem,
photographers have repeated their assertion that a new procedure and forum for adjudicating
small copyright claims is necessary. While the Office does not believe that it is necessary or
even advisable to address this issue in the context of orphan works legislation, the Office
continues to believe that the issue deserves the attention of Congress. If the Subcommittee
believes it would be helpful, the Office would be pleased to study the issue in a way similar to
the way in which the Office studied the orphan works problem itself, and to report to Congress
its findings as to (1) whether, how, and to what extent authors and copyright owners are hindered
or even prevented from seeking relief for infringements of their copyrights due to the cost of
litigation under the current system, and (2) if the current system does not provide adequate
procedures and remedies for the adjudication of small copyright claims, what changes in the law
would be advisable to ensure that authors and copyright owners are able, as a practical matter, to
seek remedies for infringements of their works.
Anyone who has litigated a case—whether as a party or
as counsel—in the federal courts knows that the costs of litigation
are beyond the means of many Americans. Attorneys typically charge hundreds
of dollars per hour for their services, and it is our understanding that
contingency fee arrangements in copyright cases are relatively rare.
In a typical civil case, after pleadings, discovery, motion practice
and trial (as well as possible appeals), attorney's fees can run to tens
of thousands of dollars or more, and other costs can run to thousands
of dollars or more.(3) If, as
the Professional Photographers of America have told us, photographers
generally earn about $30,000 a year,(4) then
assertions that they are unable to take advantage of the remedies offered
by the federal courts may well be credible.(5) It
is legitimate to ask whether the federal courts are hospitable to most
Of course, there are provisions built into the copyright law that are designed in part to provide
even the copyright owner of modest means with a reasonable prospect of recovering not only
compensation for infringement but also the expenses of litigation in a successful infringement
suit. Unlike most areas of the law, copyright law permits a court to award a reasonable attorney's
fee to a successful plaintiff (or defendant).(6) Moreover, a copyright owner may elect to receive an
award of statutory damages of up to $30,000 per infringed work—and up to $150,000 per work
in cases of willful infringement—in lieu of actual damages and profits.(7)
It is reasonable to ask whether these provisions offer sufficient incentive and sufficient assurance
that the copyright owner will be able to afford the cost of litigation. In the past couple of weeks
we have asked representatives of authors and “small" copyright owners about their experience in
litigating infringement claims. We have heard assertions that in many cases it simply is not
worthwhile to bear the expense of federal litigation no matter how meritorious the claim may be.
We are not in a position at this time to evaluate the accuracy of those assertions, but it is not
difficult to imagine that in many cases an author or copyright owner engaging in a rational
analysis of the costs and benefits of litigation will conclude that in light of the modest value of
his or her infringement claim and the relatively high cost of litigation, it makes no sense to
pursue that claim.
Although the copyright law offers the advantages described above to copyright owners who
pursue claims of infringement, another provision of the law arguably provides a disincentive to
pursue small claims. Section 1338 of Title 28 of the United States Code confers upon the federal
district courts exclusive jurisdiction over claims of copyright infringement. As a general
proposition, the longstanding exclusive jurisdiction of the federal courts in this area is an
important and positive feature of our system. Copyright law is federal law, and confining
copyright cases to the federal courts is more likely to ensure consistency of decision-making. It
is probably also fair to say that, as a general proposition, the quality of decision-making in the
federal courts exceeds that found in many state courts.
But, as noted above, federal litigation tends to be expensive. While pro se litigation is possible
in the federal courts, as a practical matter in most cases it requires the assistance of an attorney to
navigate the civil procedure and substantive law. Although state court systems offer small
claims courts, which handle claims of up to a few thousand dollars and are more congenial to pro
se litigation, the federal courts offer no such alternative. As a result, because authors and
copyright owners, unlike most other litigants, have no choice but to pursue their claims in federal
court, the costs of federal litigation may weigh more heavily on them than on most others.
The Copyright Office expresses no definitive views on the extent to which the current system
hinders the ability of authors and copyright owners to pursue small infringement claims, but from
the foregoing discussion it is clear that there are serious questions about the effectiveness of the
current system that merit further study.
Some have also asserted that the existing system for adjudication of copyright infringement
claims can in some cases be too burdensome for defendants who are accused of infringement.
While it is not difficult to imagine that a wealthy plaintiff in a copyright infringement suit could
make the litigation very costly for a defendant of modest means, the Office is not aware whether
this has in fact been a significant problem.
If it is the desire of the Subcommittee, the Office would be pleased to conduct a study—in a way
similar to the way in which it conducted its study on orphan works—that would seek and
evaluate information on the nature and scope of the problem and, if the problem appears to
require further Congressional attention, would recommend possible solutions. Among the
information that such a study might seek would be:
Statistical (if it exists) and anecdotal evidence as to the extent to which authors and
copyright owners have foregone asserting claims of infringement due to the cost of
litigation or other factors relating to the currently available fora and remedies.
Information about the range of amounts in controversy in suits for copyright infringement
filed in the federal courts.
Information relating to the range of costs that authors and copyright owners have borne in
pursuing claims of infringement, especially in cases involving relatively modest amounts
Information about the practice of the courts in awarding attorney's fees in copyright suits,
especially in cases involving relatively modest amounts in controversy, including the
frequency with which attorney's fees are awarded, the extent to which the awards are
equal to the actual attorney's fees expended by the prevailing party and the extent to
which such awards are collected.
Information about existing use of alternative dispute resolution mechanisms in addressing
copyright infringement claims.
The extent to which collective administration and licensing resolves problems related to
enforcement of copyright in cases involving relatively small amounts in controversy, and
where such activity has been successful in ameliorating the high costs of litigation in
The extent to which trade associations, guilds, professional associations and other groups
of copyright owners have been able to provide legal services or otherwise assist members
in resolving copryight disputes involving relatively small claims.
To the extent that such a study might find problems that need to be addressed, the study would
consider possible legislative or other action. Possible alternatives might include:
- Amending the statute that confers exclusive jurisdiction over copyright
matters on the federal courts, in order to permit state courts (e.g., small claims courts) to hear copyright
infringement claims where the amount in controversy is small.
The fact that the Copyright Office has identified such possible solutions does not mean that the
Office would necessarily endorse any of them following a careful study. Indeed, even without
the benefit of further study it is apparent that there are benefits as well as disadvantages to each
of these approaches.
As always, the Copyright Office stands ready and eager to assist the Subcommittee on this and
other copyright matters.
1. See Comment of Professional Photographers of America, March 25, 2005, pp. 11-13,
submitted in Copyright Office Study on Orphan Works [available on the Copyright Office
website at http://www.copyright.gov/orphan/comments/OW0642-PPA.pdf [hereinafter
2. United States Copyright Office, Report on Orphan Works 114 (Jan. 2006)
3. If expert witnesses are used, as is not uncommon in copyright cases, additional
thousands of dollars or more in expenses can be incurred.
4. PPA Comment 10.
5. It may be worth noting that in diversity actions, the minimum amount in controversy
required to invoke the jurisdiction of the federal courts is $75,000. 28 U.S.C. §1332(a).
6. 17 U.S.C. § 505.
7. 17 U.S.C. § 504(c). Attorney's fees and statutory damages are available to plaintiffs
only in cases where the copyright in the work was registered prior to the commencement of the
infringement or within three months after first publication of the work. 17 U.S.C. §412.