Alternate Dispute Resolution Options for Copyright Disputes

On September 21, 2023, Kyle-Beth Hilfer spoke on a panel for the New York Foundation for the Arts and New York State Bar Association. She discussed various alternate dispute resolution (ADR) options for copyright disputes of all sizes. 

Copyright Law Basics

The panel first reviewed the basics of copyright law:

• Copyright law protects original works of authorship, such as books, music, art, movies, and software.
• Copyright owners own exclusive rights to reproduce, distribute, perform, display, and create derivative works from their copyrighted works.
• Copyright infringement occurs when someone makes unauthorized copies of or uses a copyrighted work.
• Copyright infringement can be a costly mistake, as copyright owners can sue infringers for damages and injunctive relief.

Types of ADR for Copyright Disputes

Copyright disputes are typically complex and too costly for most creators to resolve in court. Lawsuits can stretch out for years. Arbitration and mediation are alternative means of dispute resolution that can offer a more efficient and cost-effective way to resolve these disputes.

• In arbitration, the parties to a dispute agree to have their case decided by a neutral third party, known as an arbitrator. The arbitrator’s decision is binding on both parties. There typically is no right of appeal unless the parties agree to appeal to another arbitrator. The arbitrator’s award is enforceable in court.
• Mediation is a process in which a neutral third party, the mediator, helps the parties to reach a mutually agreeable resolution. The mediator does not make any decisions for the parties, but rather helps them to communicate and negotiate effectively.
• Copyright owners should also be aware of the newly created Copyright Claims Board (CCB) as an alternative to court. It covers copyright disputes up to $30,000. Lawyers are not required. A respondent can opt out of the process and choose to go to court. There are three types of disputes heard by the CCB: infringement; declaration of non-infringement; misrepresentation in a takedown notice or counter notice under the DMCA. For more information on the CCB, click here.

Why use ADR with Copyright Disputes?

There are several advantages to using arbitration and mediation to resolve copyright disputes, among them, efficiency, cost-savings, confidentiality, flexibility.  Most importantly, the parties can choose a neutral who understands copyright issues and the relevant creative material’s marketplace. In court, the parties have no control over the judge’s prior experience. In addition, an arbitrator has the authority to grant broad equitable relief, similar to court, including, injunctive relief, credit/corrections, terminating licenses, ordering future approvals or specific performance of a license, ordering take-downs or removal of infringing material.

For more information on how Kyle-Beth Hilfer can help you draft copyright licenses or protect your copyright, click here. For more information on Kyle-Beth Hilfer’s arbitration and mediation practice, click here.