Small claims and mediation for an IP dispute

An independent illustrator and a small shop disagree about a poster. Neither wants to pay for a federal lawsuit. Someone suggests "small claims"; someone else suggests mediation. They do different jobs. The Copyright Claims Board decides a claim and can award money. A mediator decides nothing: the two of you either reach an agreement or you don't. Pick the one that can deliver the result you want.

The CCB has a particular job

For a U.S. copyright dispute, "small claims" means the Copyright Claims Board (CCB), not your local small claims court: no state court can hear a claim arising under the federal copyright law 9. The CCB is a tribunal inside the U.S. Copyright Office and a voluntary alternative to federal court. It hears only three kinds of claims: copyright infringement, declarations that an activity does not infringe, and misrepresentation in notices sent under the Digital Millennium Copyright Act (DMCA). Trademark, patent and contract disputes go elsewhere. 1

You cannot ask the CCB for more than $30,000 in total damages 1, and statutory damages are capped at $15,000 per work infringed, sometimes $7,500 3. That is a ceiling, not what your claim is worth. Everything runs online, hearings are by video, and you can represent yourself or bring an attorney. 1

Before you file an infringement claim, check four things 2:

1. You are the legal or beneficial owner of the copyright.
2. The respondent resides in the United States, you have their U.S. mailing address, and they are not a federal or state government entity.
3. The work is registered, or you have submitted a complete registration application and have its service request number. The CCB will not issue a determination until the Copyright Office has registered the work. A private timestamp or the fact that copyright arose automatically does not meet this requirement.
4. You are within three years of the infringing act, or of when you reasonably should have discovered it. If you found it late, say so in the claim and explain why.

Then fill out the claim form in eCCB, the CCB's electronic filing system 2. The filing fee comes in two payments: the first when you file, the second only if the respondent does not opt out. The same fee list includes expedited registration for a work in a CCB claim. 1 The CCB reviews your claim for compliance and gives you up to two chances to fix it; once it passes, the CCB tells you how to notify the other party 2. If you have not registered yet, start with Your first U.S. copyright application.

Voluntary does not mean safe to ignore

If you are served with a CCB claim, you almost always have sixty days from service to opt out. Opt out online with the code in the notice you were served: it takes effect immediately and you get an email confirmation. A paper opt-out must be postmarked or handed to a commercial carrier by the sixty-day deadline, and mail can take months to reach the CCB. You do not have to give a reason. 3

Deciding not to take part is not the same as opting out. If the deadline passes, the proceeding becomes active and moves forward whether you participate or not 3. The CCB can then enter a default determination against you; the claimant still has to submit evidence, and you get written notice and thirty days to oppose 6.

Opting out ends the CCB proceeding, not the dispute: the claimant can still sue you in federal court 3. Staying in is a real decision too. After a CCB determination, neither side can file the same claim in federal court, and review is limited to reconsideration for a clear error of law or fact, review by the Register of Copyrights, and federal court review in limited circumstances 1. The CCB itself says it may not suit complex cases that need extensive evidence or subpoenas 3. If you are unsure whether to stay in, talk to a copyright attorney well before the sixty-day opt-out deadline; do not count on an extension 3.

If the case goes ahead, a Scheduling Order sets the deadlines. Then come a response, streamlined discovery (written questions and document requests), written statements and sworn evidence, an optional video hearing, and a final determination. The CCB can schedule a settlement conference with its Copyright Claims Officers at any point. 6

The person accused has a place in this picture

If someone has accused you of actual or imminent infringement, you can ask the CCB for a declaration that your activity does not infringe. You get a declaration, not money: the CCB awards no damages on these claims. The respondent must reside in the United States and cannot be a government entity. If an infringement claim is already pending against you, do not file a noninfringement claim that only repeats your defense. 4 If the accusation came as a DMCA notice that misrepresents what you did, a DMCA misrepresentation claim is the third CCB route 1; see Responding to a platform complaint or counter-notice.

For either side, evidence decides the case. In the poster example, the dispute turns on the email that granted permission and the use it described. Save the email, the poster, and where and how the shop used it; Saving evidence while the facts are still available shows how. How the two of you feel about each other explains the conflict, but it does not decide the copyright question.

Mediation leaves the agreement with the parties

In WIPO mediation, the mediator helps you negotiate and decides nothing: no decision can be imposed on you 5. Either party can end the mediation at any time with a written declaration 7. A judge or an arbitrator is different: they decide the outcome under the applicable law 5. Read any dispute-resolution clause before you sign it; "mediation" and "arbitration" in a contract mean different things.

Mediation is confidential. Unless the parties agree otherwise, admissions, proposals and settlement offers made in it cannot be used as evidence in later court or arbitration 5. The process is non-binding, but a settlement agreement you sign at the end is not: the WIPO Mediation Rules exclude it from that confidentiality so it can be enforced 7. Read the final terms before you sign.

That flexibility lets you settle on terms no tribunal would order. The shop might need time to replace packaging; the illustrator might want a payment, credit and clear terms for future use.

To start a WIPO mediation:

1. Agree to mediate. Use the mediation clause in your contract if it has one, or sign WIPO's recommended submission agreement for an existing dispute. 5
2. Send the WIPO Center a Request for Mediation with both parties' contact details, the agreement to mediate and a short summary of the dispute 5. If there is no agreement yet, you can still send a Request for Mediation proposing it, with a copy to the other party at the same time 7.
3. Pay the administration fee. It is not refundable, and the Center takes no action until it is paid. Unless you agree otherwise, the parties split the administration fee and the mediator's fees equally. 7 Check current amounts on the WIPO mediation fee schedule 8.

Choose a process for what you need

Answer four questions before you pick:

1. What result do you want? A decision and money point to the CCB or federal court. A negotiated deal (time, a license, credit, a payment plan) points to mediation.
2. Who has to agree? A CCB respondent can opt out within sixty days 3. Mediation needs both parties, and either can leave at any time 7.
3. What does it cost? The CCB charges a two-part filing fee 1; WIPO charges an administration fee plus mediator's fees, split equally by default 7.
4. What happens if it does not resolve the matter? An opt-out leaves the claimant free to sue in federal court 3. A mediation that ends without a settlement leaves nothing decided 5.

If one of you cannot take part on equal terms, because of a large power imbalance or a language barrier, raise it with the mediator in the first contacts, before any joint meeting. Neither route removes the need for evidence. Choose the one whose outcome you understand and can live with.