Consolation Prize: Barcroft Media and the Case for a Copyright Small Claims Court

By Walter G. Lehmann

©2019. Published in Landslide, Vol. 11, No. 5, May/June 2019, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Imagine you have a client who is in the business of licensing photos of Hollywood celebrities. She discovers that a company that runs celebrity gossip and entertainment websites is using her photos without paying her a licensing fee or otherwise getting her permission. She asks you to help her enforce her copyrights. You send a cease and desist letter and attempt to negotiate a licensing agreement that includes a retroactive licensing fee. After lengthy negotiations, the infringer deletes the infringing photos from its websites but refuses to compensate your client for illegally using the photos. Reluctantly you file a lawsuit—in federal court, of course, because this is a copyright claim after all—and you incur considerable time and expense prosecuting it. When you finally get to court, the judge summarily rejects the infringer’s fair use defense and awards your client a reasonable licensing fee. You’ve won the case—time to pop open the champagne, right? But wait, the total award is barely more than the $10,000 maximum typically allowed in a conciliation court case. And while the judge allows you to submit a request for attorney fees, she is skeptical that you will be able to demonstrate that you are entitled to them. Discouraged, the next time your client calls about enforcing her copyrights, you tell her that you are sorry but there is really very little you can do to help her.

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