Copyright Claims Board first case: photographer win copyright case vs. lawyer

Mar 8, 2023

Udi Tirosh

Udi Tirosh is an entrepreneur, photography inventor, journalist, educator, and writer based in Israel. With over 25 years of experience in the photo-video industry, Udi has built and sold several photography-related brands. Udi has a double degree in mass media communications and computer science.

Copyright Claims Board first case: photographer win copyright case vs. lawyer

Mar 8, 2023

Udi Tirosh

Udi Tirosh is an entrepreneur, photography inventor, journalist, educator, and writer based in Israel. With over 25 years of experience in the photo-video industry, Udi has built and sold several photography-related brands. Udi has a double degree in mass media communications and computer science.

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Copyright Claims Board - hammer il

About a year ago, the Copyright Claims Board (CCB) started accepting cases in the US. This is good news for you if you are a photographer or any other type of creator. This board provides a quick, less costly option for submitting Copyright claims in federal court. (Definitely smaller scale than this 228.9 million dollars copyright lawsuit)

While the court has been active for since June ’22, this is its first case was decided on February 28, 2023. It is a case discussing an unauthorized image use by a lawyer on his website. The final ruling was in favor of the photographer, though far from what he asked for. Here are the full details.

Copyright Claims Board – first case overview

Plagiarism today, has a good overview of the case summarized into three points :

  1. David Oppenheimer is a photographer who discovered that one of his images was being used without his permission on the website of a lawyer named Douglas Prutton.
  2. According to Prutton, Oppenheimer wrote him a demand letter for $30,000. Prutton tried to offer $500 as a counteroffer. In February 2021, Oppenheimer filed a lawsuit in federal court, but, after both parties agreed, the case was moved to the CCB months in April 2022, months before the court opened.
  3. Prutton, for his part, never denied the use of the image. He said that his adult daughter built the site for him and used the image, and accused Oppenheimer of negotiating in bad faith and being a serial litigant. He asserted both an unclean hands defense and a fair use defense to his infringement.

If you want to dive deeper, there is a longer overview they share here, and you can read the full case on the CCB under Oppenheimer v. Prutton – 22-CCB-0045.

Copyright Claims Board – first case decision

Starting from the top, the Copyright Claims Board decided in favor of Oppenheimer, the photographer, and awarded him $1,000 in damages. In their decision, the CCB addresses a few of the defenses made by Prutton. There is a lot to digest in this case, but here are my main takeaways. Just before looking at those, I do have to put on the standard disclaimer that I am not a lawyer, and I am reading this case as a journalist or, better yet, as a creator. If you do need legal advice, you should go to a lawyer.

Fair use

According to WikipediaFair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder”.  In layman’s terms, it means that in some specific cases, you don’t need to get permission to use copyrighted material. Without going too deep into the finer points of fair use, it is enough to say that once Prutton used the photo to promote his business – which is a commercial purpose – he failed to fall into the Fair Use bin.

Unclean Hands and “copyright trolling”

One of the defenses brought on by  Prutton is that Oppenheimer is a “Copyright Troll”. This is a derogatory way of saying that Oppenheimer sues a lot about copyright issues. Or, as the court admits that Oppenheimer is a ” frequent copyright litigator”, they do not think that its relevant to the case. For me, this sounds like good news. The fact that a photographer sues a is definitely not a reason to ignore any wrongs done to him.

Damages?

The lowest possible option for such a case is $200. But for this, the infringer must prove that he was an “innocent infringer”.  With Prutton falling to prove that he was an innocent infringer, the damages are in the $750-$15,000 range. Two of the three judges voted for $1,000 (and one for $750), which set the damages at $1,000.

Is this a good decision for Oppenheimer? For the community?

Well, it depends.

Oppenheimer asked for the maximum allowed by the Copyright Claims Board – $30,000. For the photographer, $1,000 is a far lower amount than he had asked, and considering the time and energy spent,  I guess this is quite a marginal result for him.

For Prutton, who wanted only to pay $200, this is a significant increase + he lost the case. So he is probably not happy either.

As for the community,  plagiarism today observes that

… when reading the final determination was how similar it was to every other legal ruling I’ve ever read. Though it was formatted slightly differently, all the analysis I would expect in a decision from a regular court was contained in this one.

In short, the CCB is following all the rigor I would expect from a regular court, even though it is working from less formal pleadings and statements

This, again sounds like good news if you want to get justice. Especially, if you ar are concerned of the procedures and costs of a federal court.

What is the Copyright Claims Board

The CCB isan efficient, streamlined way to resolve copyright disputes involving claims seeking damages of up to $30,000 and is designed to be less expensive and faster than bringing a case in a federal court. The Copyright Office has developed procedures to handle these disputes as well as “eCCB,” an electronic filing and case management system.”

For those of us living  in the US, this allows for a more streamlined, accessible, online option for claiming copyright issues. While the CCB is limited in what cases it will take, and has to be voluntary by both parties, it should be a much smoother route than federal litigation. (as much as you can call litigation smooth).

Until today, the CCB received over 375 cases.

[Oppenheimer v. Prutton via pp, plagiarismtoday]

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Udi Tirosh

Udi Tirosh

Udi Tirosh is an entrepreneur, photography inventor, journalist, educator, and writer based in Israel. With over 25 years of experience in the photo-video industry, Udi has built and sold several photography-related brands. Udi has a double degree in mass media communications and computer science.

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