Affordable and Practical Ways You Can Access the U.S. Legal System

My article “How U.S. Courts Work and Why it Matters for You and Your Art Business” details an unfortunate reality: accessing the U.S. court system is often prohibitively expensive for the average solopreneur artist. But… There are options! Let’s discuss.

Fee Shifting: Making the Other Party Pay Your Lawyer’s Fees

The default rule in the United States is that each party to a litigation pays for their own lawyer. In other words, whether you win or lose, you pay your own way and so does the other party. “Fee shifting” changes the rule to say that the party that wins is entitled to have their legal fees paid by the party that loses. The fee shifting exception is typically found in either a law (statute) or a contract. In laws, fee shifting language often appears where there’s been a public policy in favor of private enforcement. For example, when it was still popular to enforce federal civil rights, congress passed the “Civil Rights Attorney’s Fees Awards Act,” which says that a party who proves a civil rights violation is entitled to an award of attorney’s fees from the violator. State elder abuse statutes often have fee shifting provisions. Here’s an example of a contractual fee shifting clause, taken from an artist’s license agreement: “The prevailing party in any judicial proceeding shall be entitled to an award of reasonable attorney’s fees and costs.” 

So, if it means that kind of risk for you, why sign a contract with a fee shifting clause? This gets back to the high cost of litigation, as discussed in my 11/11/25 article, and the risk that lawyers take, if they decide to represent an ordinary individual plaintiff, as opposed to a deep-pocketed corporation. For lawyers representing ordinary people as plaintiffs (as opposed to lawyers who represent deep-pocketed corporations as plaintiffs), a great deal of care goes into taking a case. If there is no fee shifting option, then the plaintiff has to pay their attorney’s fees out of their own pocket. As I described in my earlier article above, a simple case that goes to even a short trial can easily cost $50,000 or more. Complex cases go past $100,000 pretty quickly. Even deep-pocketed litigants like Getty Images have complained that their lawsuits against AI companies are costing them millions in legal fees, forcing them to pick and choose which bad guys to go after. Simply put, most ordinary people cannot afford even a fraction of the cost involved with a lawsuit unless there’s a pretty good chance that the other party’s going to have to pay your lawyer’s fees and your lawyer has agreed to look only to such an award for payment.

Here's another important consideration: You can’t file a lawsuit and then change your mind without serious consequences. If you file a lawsuit, have second thoughts, and then decide to dismiss the action, that dismissal will be deemed an admission your claim was without merit to begin with. The judge can then award the defendant prevailing party fees if the contract or statute provides for the winner to be so compensated. The point of this “no backing out” rule is so people don’t file lawsuits to try to force a settlement with the intention of dropping the suit if the defendant won’t settle. Whenever you file a lawsuit, you have to imagine you could be in it for the long haul . . . trial. That’s a serious risk and that’s what lawyers are thinking about when they agree or don’t agree to take on a case for a person who isn’t, well, rich.

Copyright Infringement Cases

The most common legal matter artists face is copyright infringement by some other party who has copied their work. As I mentioned previously, copyright law is federal legislation, meaning copyright cases are filed in federal court. 

Everything I said above regarding the sequence and cost of litigation applies here. These cases are expensive.

Let’s look at a hypothetical to illustrate how it might play out.

Imagine that you discover a large housewares company, without consulting you, has used an illustration of yours on a set of dinner plates that are for sale at 650 stores nationwide and online. And let’s further suppose that you registered the artwork with the U.S. Copyright Office right after you completed the artwork, which was a year before the design was copied by a staff designer at the company.  

Under U.S. Copyright Law, the judge has the discretion to make the loser pay the prevailing party’s legal fees. The important word there is “discretion.” That means the option of doing it but not the requirement of doing it. In the past, there was case law holding that a prevailing plaintiff ought to get their fees and a prevailing defendant ought not to get their fees absent evidence showing the plaintiff’s case was frivolous or unfounded. The supreme court overruled those cases in 1994 saying that judges were to take a balanced approach and not favor one side over the other. I mention this because practitioner’s report that judges still tilt toward awarding prevailing plaintiff’s their fees and denying prevailing defendant’s their fees absent a showing of bad faith or frivolousness, but it’s not guaranteed. If you won your case and the judge denied your attorney’s fees requests, there would be little ground for appeal. It’s within their discretion.

Contingent Fee Lawyers

For most artists, if they’re going to assert their rights in court, they will be looking for a litigation attorney who will provide representation on a contingency basis. Typically, this will take the form of a promise to represent the artist in their copyright infringement case without charging the artist hourly attorney’s fees. Instead, the attorney agrees that if they are to be paid at all, it will come from funds provided by the defendant, either by way of a settlement agreement or a court judgment granting an award of damages. A common contingent-fee term will permit the lawyer to take one-third to one-half of any settlement or award of damages. 

Lawyers working on contingency are very careful about the cases they take. If the artist has not registered their copyright in the artwork before the infringement commenced, then under the US Copyright law, the judge cannot grant prevailing party fees to the winning plaintiff. If the lawyer is going to get paid, it has to come out of a settlement or damages award. And the settlement or award is going to be determined in relation to what is called “actual damages.” A simple example can illustrate how this works. Suppose the housewares company referred to earlier sold $2 million worth of infringing product sales. A plaintiff could argue that the license fee would have been 7% of sales, meaning a loss of $140,000. In addition, the plaintiff can make a claim for the defendant’s profits in excess of the licensing fee. Imagine that is 10%, and you’re talking another $200,000. Combine the two amounts and the potential trial verdict is around $340,000. If you’re contingent fee lawyer with a 50% agreement, you’re thinking, “If I get everything at trial, I stand to make $170,000.” This might be enough money to tempt a plaintiff lawyer to take the case on contingency.

But you can see how the math changes quickly. Suppose instead the amount of sales is $100,000 and the lost license fees are $7,000 and defendant profits are $10,000. Now you’re looking at a damages case of $17,000, with a potential lawyer’s share of $8,500. This is just not enough money to warrant the risk of initiating a federal lawsuit. 

Now think about all the times you’ve had somebody infringe your artwork. How frequently do you think the infringement involved $100,000 of unpermitted sales? 

Registration Changes the Calculus

Now let’s imagine that the artwork was registered before the infringement commenced. Here, two things change dramatically. One, the judge can award what’s called “statutory” damages. In a nutshell, these are damages that the judge feels are commensurate to the wrong done. Two, the plaintiff can ask for and be awarded attorney’s fees that actually dwarf the statutory damages award. So imagine in the example above where the defendant made $100,000 in illicit sales. Imagine the case goes to trial and the contingent fee lawyer (and their trial team) put in a total of a thousand hours of time. The judge might award, say, $20,000 in statutory damages and $250,000 in legal fees.

That is, in a nutshell, why having a registered copyright is such a potent threat when dealing with an infringer. 

Canny corporate defendants, who are often the ones playing the cost of litigation game with artists they’ve infringed, know that a plaintiff who has a solid claim and registered their work well before the infringement commenced can afford to risk going for broke on a claim that involves a relatively small amount of infringing sales. Such a defendant has a strong incentive to settle early and for real money.

Deep Pockets

The contingent fee lawyer is also going to look for cases where the defendant is a big company with the money to pay a settlement or judgment. If the defendant is a small online-only company, possibly with a sketchy internet presence, even if you’ve got a registered work, the lawyer may not want to handle the case due to the likelihood of not getting paid.

Other Kinds of Cases: Breach of Contract 

In addition to copyright infringement cases, breach of contract claims are common. Disputes with your licensee, your agent, a collaborator, a contractor; anytime you’ve entered into a business situation with mutual agreed-upon duties, and one party decides the other party didn’t fulfill their duties, you can end up in court.

In contracts law, the preferred remedy for breach is money. If money can reasonably substitute for performance, then a court will order a dollar amount to be paid rather than force the breaching party to take some action. For instance, suppose you enter into a contract to create five illustrations for a flat fee of $5,000. You block out ten days to get the work done. You sign a contract promising to deliver the art in two weeks. But an hour after you sign the contract, you get an offer to make five illustrations in the same time frame for $15,000. You sign the second contract and tell the first client it turns out you can’t do the work after all. They end up hiring another artist, but they have to pay them $7,000.

Since you made a promise and broke it, you could be sued for breach of contract. Damages would be $2,000, the difference between the price you accepted and the price they paid the replacement artist. It’s very unlikely a judge would order you to do the work. Even if the other party, at the point you said “no” dug in their heels and said it was you or no one else, a judge looking at their behavior would say, “You had a duty to mitigate. If another artist could do the job, you had a duty to hire them.” Contracts law is super rational this way.

It’s also unlikely you’d end up in court, even if there’s a fee-shifting clause in the contract, because you’d likely be advised by your lawyer to offer the $2,000 right away. If they didn’t take it, there are procedural rules that can turn the tables on the plaintiff, making the defendant the prevailing party when the plaintiff demands more than contract-damages customarily provide.

As a general rule, in contract disputes the parties rarely go to court, and so they typically each pay their legal fees out of pocket. If you have a strong breach of contract claim, a fee shifting clause in your contract, and a defendant who is stubborn and won’t make a deal, then you can shop the case around and see if you can attract a business litigator who will take on cases like that on a contingent fee basis. The contingent fee lawyer would be banking on winning. If the case settles, they’d get paid from the settlement amount. If the case goes to trial and they win, then they’d submit a fee award request to the judge.

Small Claims Courts

Until now I’ve been discussing lawsuits that are filed in court by a lawyer and subject to the broad discovery rules, strict evidence code, and complex procedures of formal trial practice. There is, however, an alternative, simpler path for smaller-value claims.

Copyright infringement small claims

For copyright disputes, artists now have the option of filing in the U.S. Copyright Office’s “Copyright Claims Board,” often referred to as the copyright small claims tribunal. This forum was created to give creators a lower-cost, less intimidating alternative to federal litigation, which, as noted above, can quickly become prohibitively expensive. The process is handled online, and the maximum award is $30,000. Many artist claims—say, an illustration reposted without permission or a design used on merchandise without a license—fit squarely into this range. Unlike federal court, you won’t need to master complicated civil procedure or hire a lawyer to navigate the process. You file a straightforward claim, the accused party has the choice to participate or opt out, and if they stay in, the case is heard by a panel of three copyright experts who issue a binding decision. For many artists, it represents the first truly accessible way to enforce rights in their work on a national scale.

Breach of contract small claims

When the problem isn’t infringement but a broken promise—like a licensee failing to hand over the last installment on a commission—state small claims courts are a good option. Every state sets its own dollar limits, usually between $5,000 and $10,000, and procedures are designed to be fast and approachable. You show up with your contract, invoices, emails, and any other records that back your story, and the judge hears both sides before issuing a decision. Because lawyers are often not even allowed to participate (that means the other side, too, even if they’re a big company), the process keeps costs down and levels the playing field between individuals and companies. For artists, this means you don’t have to swallow losses or write off unpaid fees simply because hiring a lawyer would eat up the claim itself—you can pursue justice directly, using the contract as your strongest piece of evidence.

Conclusion

Perhaps in no place more than legal disputes is a clear-eyed cost-benefit analysis more relevant. My hope is that this overview helps ABA artists more easily understand the options and serves as an invitation for further questions that I hope may be posted here.