Guides · Copyright Litigation
Ownership, Registration, and the Right to Sue
Copyright protects original expression fixed in a tangible form, and it belongs to the author unless the work was made for hire or the rights were transferred in a signed writing.
· Law checked through October 21, 2026
In Short
Only the owner of an exclusive right, including an exclusive licensee, may sue. For a U.S. work, the Copyright Office must have registered the work or refused registration before suit. Registering early matters: statutory damages and attorney's fees depend on it.
Common situations.
- A photographer discovers a use of an image that was never registered.
- A company learns that the freelancer who designed its logo never signed an assignment.
- An exclusive licensee wants to sue without the owner's participation.
- A registration application lists the wrong publication date.
What copyright protects.
Copyright protects original works of authorship fixed in a tangible medium (17 U.S.C. § 102(a)). Originality requires independent creation and a minimal degree of creativity; effort alone is not enough (Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991)). Protection never extends to ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries, however they are expressed (§ 102(b)). See Defenses in Copyright Cases.
Who owns it.
| Situation | Owner | Source |
|---|---|---|
| Work created by an individual | The author | 17 U.S.C. § 201(a) |
| Work by an employee within the scope of employment | The employer, as the author | §§ 101, 201(b); Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) |
| Commissioned work by an independent contractor | The contractor, unless the work falls in one of nine statutory categories and the parties signed a work-made-for-hire agreement | § 101 |
| Joint work | The co-authors, together | §§ 101, 201(a) |
| Rights transferred to another | The transferee, if the transfer is in a writing signed by the owner | § 204(a) |
A nonexclusive license does not need a writing and may be implied from conduct. A transfer of ownership, including an exclusive license, does. Where a company paid for a work but has no signed assignment, it may have only an implied nonexclusive license to use it. See Software, Website, and Digital Content Disputes.
Who may sue.
The legal or beneficial owner of an exclusive right may sue for infringement of that right while the owner holds it (17 U.S.C. § 501(b)). An exclusive licensee is an owner of the licensed right and may sue. A nonexclusive licensee may not. A court may require the plaintiff to notify, and may require joinder of, others with an interest in the copyright (§ 501(b)).
Registration before suit.
- The rule. For a U.S. work, no suit for infringement may be filed until the Copyright Office has registered the work or refused registration (17 U.S.C. § 411(a)). A pending application does not satisfy the requirement (Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019)).
- Speeding it up. Special handling, available when litigation is pending or expected, costs an extra $800 per claim (37 C.F.R. § 201.3(d)). The Office has proposed raising that surcharge to $1,100.
- After a refusal. The owner may sue after a refusal by serving notice of the suit and a copy of the complaint on the Register of Copyrights, who may join the case on the question of registrability within 60 days (§ 411(a)).
- Foreign works. The registration requirement applies only to U.S. works. Works first published in, or by nationals of, other treaty countries may be sued on without registration, although § 412 still limits remedies.
- Evidence. A registration made before or within five years after first publication is prima facie evidence that the copyright is valid and that the facts in the certificate are true (§ 410(c)).
Errors in a registration.
A registration remains valid despite inaccurate information unless the applicant included the information knowing it was inaccurate, and the inaccuracy, if known, would have caused the Office to refuse registration (17 U.S.C. § 411(b)(1)). Lack of knowledge of either the facts or the law excuses the mistake (Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178 (2022)). When a defendant alleges a knowing inaccuracy, the court must ask the Register whether the Office would have refused registration (§ 411(b)(2)).
Registration timing and remedies.
Statutory damages and attorney's fees are unavailable for (1) infringement of an unpublished work that began before the registration's effective date, or (2) infringement that began after first publication and before registration, unless the work was registered within three months after first publication (17 U.S.C. § 412). In the Fifth Circuit, an ongoing infringement "commences" with the defendant's first infringing act, so later acts by the same defendant in the same work do not open the door to statutory damages (Mason v. Montgomery Data, Inc., 967 F.2d 135 (5th Cir. 1992)). That is true even when the post-registration acts infringe a different exclusive right than the pre-registration acts (S. Credentialing & Support Servs., L.L.C. v. Hammond Surgical Care, L.L.C., No. 18-31160 (5th Cir. Jan. 2020)). Actual damages and profits remain available. See Copyright Remedies.
| When registered | Suit allowed | Statutory damages and fees |
|---|---|---|
| Before the infringement began | Yes | Yes |
| Within three months after first publication, for infringement that began after publication | Yes | Yes |
| After the infringement began, outside the three-month window | Yes, once registered or refused | No; actual damages and profits only |
| Not at all (U.S. work) | No | No |
Sources.
- 17 U.S.C. §§ 101, 102, 201, 204(a), 410(c), 411, 412, 501(b).
- 37 C.F.R. § 201.3(d).
- Copyright Office, Notice of Proposed Rulemaking, Copyright Office Fees (Mar. 20, 2026).
- Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).
- Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).
- 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).
- Mason v. Montgomery Data, Inc., 967 F.2d 135 (5th Cir. 1992); S. Credentialing & Support Servs., L.L.C. v. Hammond Surgical Care, L.L.C., No. 18-31160 (5th Cir. Jan. 2020).
This guide is general information, not legal advice. Law checked through October 21, 2026. See the Disclaimer.