Copyright Litigation Questions

Do I have to register my copyright before I sue?

For a U.S. work, yes. A suit for infringement cannot be filed until the Copyright Office has registered the work or refused registration (17 U.S.C. § 411(a); Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019)). A pending application is not enough. When time matters, the Office offers special handling for a surcharge, currently $800 per claim (37 C.F.R. § 201.3(d)). Foreign works from treaty countries are exempt from the registration requirement. See Ownership, Registration, and the Right to Sue.

Why does the date of registration matter?

Statutory damages and attorney's fees are unavailable if the infringement began before the work was registered, unless a published work was registered within three months after first publication (17 U.S.C. § 412). An owner who registers late can still sue, but is limited to actual damages and the infringer's profits. See Copyright Remedies.

Does a mistake in my registration ruin it?

Not if the mistake was made without knowledge that the information was inaccurate. That safe harbor covers good-faith mistakes of both fact and law (17 U.S.C. § 411(b); Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178 (2022)).

How long do I have to sue?

Three years after the claim accrues (17 U.S.C. § 507(b)). 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)). 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)). See Defenses in Copyright Cases.

What is fair use?

A defense that permits some uses without permission. Courts weigh four factors: the purpose and character of the use, the nature of the work, the amount used, and the effect on the market for the work (17 U.S.C. § 107). A use that serves substantially the same commercial purpose as the original 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)). See Defenses in Copyright Cases.

Who owns work done by an employee or a contractor?

Work made by an employee within the scope of employment belongs to the employer. Work by an independent contractor belongs to the contractor unless it falls in one of nine statutory categories and the parties signed a written work-made-for-hire agreement, or the contractor signed a written assignment (17 U.S.C. §§ 101, 204(a); Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). Computer programs are not one of the nine categories, so a business that wants to own custom software or website code written by an outside developer generally needs a signed assignment. See Software, Website, and Digital Content Disputes.

What can a copyright owner recover?

Statutory damages and fees require timely registration (§ 412).

Can a defendant who wins recover its attorney's fees?

Yes. Fees are available to a prevailing defendant on the same terms as a prevailing plaintiff (Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)). Courts give substantial weight to the objective reasonableness of the losing party's position, while considering all relevant circumstances (Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016)).

What is the Copyright Claims Board?

A three-member tribunal in the Copyright Office that decides small copyright claims, mostly in writing and online. Recovery is capped at $30,000 per proceeding and $15,000 per work. A respondent may opt out within 60 days after service, and the proceeding then ends (17 U.S.C. §§ 1504(e), 1506(i)). See The Copyright Claims Board.

What happens after a takedown notice?

The online service removes the material to keep its safe harbor. The person who posted it may send a counter-notice. The service must then restore the material in 10 to 14 business days unless the owner notifies it that a suit has been filed (17 U.S.C. § 512(g)(2)). A person who knowingly makes a material misrepresentation in a notice or counter-notice is liable for damages (§ 512(f)). See Before Filing: Demand Letters and DMCA Notices.

Can I sue a Texas state university or agency?

Generally not for damages. Congress did not validly abrogate state sovereign immunity for copyright claims (Allen v. Cooper, 589 U.S. 248 (2020)). The Supreme Court of Texas also held that a state university's infringement was not a taking of property requiring compensation (Jim Olive Photography v. Univ. of Houston Sys., 624 S.W.3d 764 (Tex. 2021)).

Can a Texas state court hear a copyright case?

Not an infringement claim. Federal courts have exclusive jurisdiction over claims arising under the Copyright Act (28 U.S.C. § 1338(a)). A Texas court can hear a dispute over a license or a contract that involves a copyright, including in the Business Court when more than $5 million is in controversy (Tex. Gov't Code § 25A.004(d)(4)). See Where Copyright Cases Are Heard.

Can AI-generated material be copyrighted, and is AI training infringement?

A work generated entirely by an AI system, with no human author, cannot be registered (Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir. 2025), cert. denied (U.S. Mar. 2, 2026)). Human contributions to a work that includes AI material can be protected. On 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)). Cases involving generative AI are pending in other courts.

Sources.

• 17 U.S.C. §§ 101, 107, 204(a), 411, 412, 502-505, 507(b), 512, 1504, 1506.
• 28 U.S.C. § 1338(a).
• 37 C.F.R. § 201.3.
• Tex. Gov't Code § 25A.004(d)(4).
• Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019).
• Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178 (2022).
• Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024).
• Martinelli v. Hearst Newspapers, L.L.C., No. 22-20333 (5th Cir. 2023).
• Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023).
• Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).
• Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).
• Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016).
• Allen v. Cooper, 589 U.S. 248 (2020).
• Jim Olive Photography v. Univ. of Houston Sys., 624 S.W.3d 764 (Tex. 2021).
• Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir. 2025), cert. denied (U.S. Mar. 2, 2026).
• Thomson Reuters Enter. Ctr. GmbH v. Ross Intelligence Inc. (3d Cir. Sept. 29, 2026).

This guide is general information, not legal advice. Law checked through October 21, 2026. See the Disclaimer.