Guides · Copyright Litigation
Defenses in Copyright Cases
The most litigated defense is fair use, which after Warhol (2023) turns heavily on whether the use serves a different purpose from the original.
· Law checked through October 21, 2026
In Short
Other defenses attack what was copied (ideas, facts, and stock elements are free to use), whether the use was permitted (an express or implied license, or the first-sale rule), and timing (a three-year limitations period that, in the Fifth Circuit, runs from discovery). Texas state universities and agencies are generally immune from copyright damages.
Common situations.
- A school district tweets a passage from a book, and the author sues.
- A company's website uses a photo that a former web designer chose and supplied.
- A reseller buys genuine goods abroad and resells them in Texas.
- An infringement claim is filed five years after the use began.
Fair use.
Courts weigh four factors (17 U.S.C. § 107):
| Factor | What courts ask | Key authority |
|---|---|---|
| Purpose and character of the use | Whether the use has a further purpose or different character from the original, and whether it is commercial. A use that shares the original's purpose and competes with it weighs against fair use, even if it adds new expression | Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) |
| Nature of the work | Creative works receive more protection than factual or functional ones | Google LLC v. Oracle Am., Inc., 593 U.S. 1 (2021) |
| Amount used | Whether the amount copied was reasonable in light of the purpose | Campbell, 510 U.S. 569 |
| Market effect | Harm to the market for the original and for licensed derivatives | Campbell; Warhol |
Fair use is an affirmative defense, so the defendant bears the burden (Campbell). The ultimate question is one of law for the court, applied to facts that may be disputed (Google v. Oracle). In the Fifth Circuit, fair use can be decided on a motion to dismiss when the defense appears on the face of the complaint. The court affirmed dismissal of an author's suit over a school district's tweets of a passage from his book, and affirmed a fee award to the district (Bell v. Eagle Mountain Saginaw Indep. Sch. Dist., 27 F.4th 313 (5th Cir. 2022)). On AI training, the only federal appellate decision so far held that copying headnotes to train a competing, non-generative research tool was not fair use (Thomson Reuters Enter. Ctr. GmbH v. Ross Intelligence Inc. (3d Cir. Sept. 29, 2026)).
What copyright does not protect.
| Defense | What it means | Authority |
|---|---|---|
| Ideas, facts, systems, and methods | Copyright protects only expression | 17 U.S.C. § 102(b); Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) |
| Merger | When an idea can be expressed in only one or a few ways, the expression is not protected | Eng'g Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335 (5th Cir. 1994) |
| Scènes à faire | Elements dictated by function, standard practice, or the conventions of a genre are not protected | Eng'g Dynamics |
| Enacted law | A model code, once enacted into law, may be copied as the law | Veeck v. S. Bldg. Code Cong. Int'l, Inc., 293 F.3d 791 (5th Cir. 2002) (en banc) |
| De minimis copying | Copying so trivial that it is not actionable | General principle applied through substantial similarity |
| Independent creation | No infringement without copying, however similar the result | See Proving Copyright Infringement |
Permission and ownership.
- Express license. A use within the scope of a license does not infringe. A use beyond its scope may.
- Implied license. A nonexclusive license can be oral or implied from conduct. An implied license arises when a person requests a work, the creator makes and delivers it, and the creator intends that the person copy and distribute it (Lulirama Ltd. v. Axcess Broad. Servs., Inc., 128 F.3d 872 (5th Cir. 1997)).
- First sale. The owner of a lawfully made copy may sell or otherwise dispose of that copy without permission (17 U.S.C. § 109(a)). The rule applies to copies lawfully made abroad (Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519 (2013)). It does not authorize making new copies.
Timing.
- Three years. A civil action must be filed within three years after the claim accrued (17 U.S.C. § 507(b)).
- Discovery rule. In the Fifth Circuit, a claim accrues when the owner knew or had reason to know of the infringement (Martinelli v. Hearst Newspapers, L.L.C., No. 22-20333 (5th Cir. 2023), cert. denied, No. 23-474 (U.S. May 20, 2024)). The Supreme Court has assumed, without deciding, that the discovery rule applies, and some justices have questioned it.
- No separate damages cap. A plaintiff whose claim is timely may recover damages for infringement that occurred more than three years before suit (Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024)).
- Separate accrual. Each infringing act starts its own limitations period, and laches cannot bar damages for infringement within the three years before suit (Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014)).
Other defenses.
- Copyright misuse. Using a copyright to secure control beyond its scope, such as a license that restricts the use of competing products, can bar enforcement while the misuse continues (Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772 (5th Cir. 1999)).
- Safe harbors for online services. A service provider that meets the conditions of § 512 is not liable for damages for transmitting, caching, hosting, or linking to infringing material. Conditions include a registered designated agent for hosting services, a policy for terminating repeat infringers, and removing material expeditiously after a proper notice or upon knowledge of infringement (17 U.S.C. § 512(a)-(d), (i)). Whether a provider qualifies for a safe harbor is a separate question from whether it is contributorily liable (Cox Commc'ns, Inc. v. Sony Music Ent., 607 U.S. ___ (Mar. 25, 2026)).
Claims against government.
| Defendant | Rule | Authority |
|---|---|---|
| Texas state universities and agencies | Immune from copyright damages; Congress did not validly abrogate state sovereign immunity | Allen v. Cooper, 589 U.S. 248 (2020) |
| Same, under Texas law | A state university's infringement is not a taking of property requiring compensation | Jim Olive Photography v. Univ. of Houston Sys., 624 S.W.3d 764 (Tex. 2021) |
| State officials | Suits for prospective injunctive relief against officials in their official capacity may proceed | Ex parte Young, 209 U.S. 123 (1908) |
| The United States | Exclusive remedy is a suit for reasonable compensation in the Court of Federal Claims | 28 U.S.C. § 1498(b) |
Sources.
- 17 U.S.C. §§ 102(b), 107, 109(a), 507(b), 512.
- 28 U.S.C. § 1498(b).
- Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
- Google LLC v. Oracle Am., Inc., 593 U.S. 1 (2021).
- Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023).
- Bell v. Eagle Mountain Saginaw Indep. Sch. Dist., 27 F.4th 313 (5th Cir. 2022).
- Thomson Reuters Enter. Ctr. GmbH v. Ross Intelligence Inc. (3d Cir. Sept. 29, 2026).
- Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).
- Eng'g Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335 (5th Cir. 1994).
- Veeck v. S. Bldg. Code Cong. Int'l, Inc., 293 F.3d 791 (5th Cir. 2002) (en banc).
- Lulirama Ltd. v. Axcess Broad. Servs., Inc., 128 F.3d 872 (5th Cir. 1997).
- Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519 (2013).
- Martinelli v. Hearst Newspapers, L.L.C., No. 22-20333 (5th Cir. 2023), cert. denied, No. 23-474 (U.S. May 20, 2024).
- Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024).
- Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014).
- Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772 (5th Cir. 1999).
- Cox Commc'ns, Inc. v. Sony Music Ent., 607 U.S. ___ (Mar. 25, 2026).
- Allen v. Cooper, 589 U.S. 248 (2020).
- Jim Olive Photography v. Univ. of Houston Sys., 624 S.W.3d 764 (Tex. 2021).
- Ex parte Young, 209 U.S. 123 (1908).
This guide is general information, not legal advice. Law checked through October 21, 2026. See the Disclaimer.