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Can I claim Copyright Infringement? First Considerations for Authors

Posted by Giselle Ayala Mateus | Feb 04, 2021 | 0 Comments

If you consider that another has used or misappropriated your work, it is imperative to understand the copyright infringement claim elements. It is then essential to consider whether the author of the work has a viable claim, and finally, determine the best strategy to approach the allegedly infringing conduct. When an author hires an attorney, the attorney's first task is to make a preliminary assessment of the matter. During the preliminary assessment of the matter, the attorney evaluates the documentary evidence available and conducts research to collect additional facts. The attorney completes this due diligence process to assess the strength of a client's case. In sum, before an attorney can advise a client about a viable copyright infringement claim, the attorney must collect as much information as possible about the client's work and the allegedly infringing conduct.

The requirement of Copyright Registration.

A copyright interest exists for the author when he creates a protectable work of authorship; This means that copyright does not require registration to exist.  However, before a lawsuit can commence, the author must register his work. According to 17 U.S.C. § 411, registration is a prerequisite to starting a lawsuit. Additionally, if an author considers that another person has infringed his rights, copyright registration makes any claim or negotiation stronger. Copyright registration gives the author credibility and a much more clear basis to address the possible existence of copyright infringement. Finally, if an author attempts to bring a lawsuit and the work is unregistered or is the subject of a pending application, the case will likely be dismissed.

What is that mean to have a copyright registration before filing a lawsuit? Under the U.S. Copyright Law, no civil action for infringement of the copyright can commence before preregistration or registration of the copyright claim. 17 U.S.C. § 411(a). In Fourth Estate Public Benefit Corp. v., L.L.C., 139 S. Ct. 881 (2019), the United States Supreme Court explained that although owners' rights exist apart from registration, registration is a requirement that owners must satisfy before suing to enforce ownership rights.

Therefore, registration of a work of authorship occurs, and a copyright claimant may commence a copyright infringement suit only when the Copyright Office registers the work. Now, it is worth commenting that upon registration of the work the owner can recover for infringement amounts of damages accrued both before and after registration.

The Statute of Limitation

Another critical issue to consider is when the copyright infringement accrued and whether the author can still file a lawsuit against the alleged infringer. Under 17 U.S.C. § 507 (b), civil actions for copyright infringement must be "commenced within three years after the claim accrued.". In other words, the author has three years to file an infringement action starting from the time the author either discovered the claim or should have discovered the claim using reasonable diligence.

There can be variations in how courts understand the application of this rule. However, the general rule is that each act of infringement is a distinct harm giving rise to an independent claim for relief. In other words, each act of harm creates a different statute of limitations reality. Nevertheless, this does not mean that when infringements occur during the limitations period owners can recover for past infringements. Recovery is allowed only for those acts that occur within three years of the suit and is disallowed for earlier infringing acts. Yurman Design Inc. v. Chaindom Enters., 1999 U.S. Dist. LEXIS 18382

The existence of possible defenses

Another critical issue to consider is whether the defendant has viable defenses or counterclaims. Once an owner opens the door of litigation, the defendant can raise its own claims. This is the usual scenario of works of authorship created by the efforts of several persons, or work where the owner involves freelancers or contractors.

Common defenses asserted in copyright infringement cases include the following:

Fair use.

Under the fair use doctrine, the author of a protected work cannot recover because the use of the defendant is so minimal or innocent that the law exempts the defendant from liability. 17 U.S.C. § 107. To determine if a fair use claim is valid court usual take into consideration 4 main factors, (a) the purpose and character of the use, (b) the nature of the copyrighted work, (c) the amount and substantiality of the portion used, and (d) the effect of the use on existing and potential markets for the copyrighted work.

No substantial similarity

Copyright infringement claims are successful when an author demonstrates that another use or copy his work without authorization. Suppose an author argues that another copied his work. In that case, he must offer direct evidence of copying or prove the existence of substantial similarity between his work and the work of the defendant.

Absent direct evidence of copying, an author must prove infringement relying on circumstantial evidence that demonstrates that the defendant had access to the copyrighted work and that the works' expressive elements are substantially similar so that the defendant's work could not have been the result of independent creative efforts.

Independent creation

Even if two works are substantially similar, a defendant could still avoid liability if he demonstrates that allegedly infringing work results from his independent efforts. The defense of independent creation is directly related to author's evidence of infringement. That means, once the author establishes the defendant had access to his work and the works are substantially similar, the defendant can raise the defense of independent creation.


To start a lawsuit for copyright infringement an author must have registered the work at issue. However, registration does not mean that the court will decide in favor of the author. During the litigation, the defendant can argue that the elements of the author's work, the basis of the lawsuit, are not protectable under copyright law.


If one or persons are involved in the creation of the work, ownership conflicts can arise when the parties involved do not document the legal rules of their joint efforts. In this case, it is important to understand that an allegation of ownership can impact the rules applicable regarding the statute of limitations. Additionally, a defense regarding the ownership of a work is a full defense to copyright infringement.

Existence of a license

A license is a full defense to copyright infringement so long as the defendant's use does not exceed the license scope. While an exclusive license must be in writing, an author can grant a nonexclusive license orally, without a written agreement. In some cases, a nonexclusive license is implied from the conduct of the parties.

Key takeaways...

  • Litigation is complex and expensive. For this reason, it is important that authors consider the different aspects of the copyright infringement claim, and whether they have a strong case or not.  Of course, no one can determine that at once, but considering the existence of copyright registration, the statute of limitations, and the existence of possible defenses, is a great start. 
  • A copyright registration is the best evidence of the existence of a valid copyright interest. 
  • The statute of limitation starts running once an author learns by any means of the copyright infringement. 

About the Author

Giselle Ayala Mateus

Giselle Ayala Mateus is a NY attorney with comprehensive experience in transactional law, creative agreements, business formation, and immigration law. She is also the founder of FOCUS a not-for-profit project focused on supporting entrepreneurs and artists.


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