17 U.S.C. §§ 106, 501
Copyright infringement: what you have to register, and how far back the damages reach
A federal claim in United States district courts · Last verified August 26, 2026
Two things about copyright trip up almost everyone, and they pull in opposite directions.
You own the copyright from the instant you create the work. Nobody has to grant it, and no paperwork brings it into being. But you cannot file suit until the Copyright Office has acted on a registration application — and until 2019 half the country's courts thought filing the application was enough. It is not.
What the claim is
Someone used your work without permission in one of the ways the statute reserves to you: reproducing it, distributing copies, performing or displaying it publicly, or making something derived from it.
The plaintiffs are photographers, songwriters, publishers, software companies, film studios, and increasingly anyone whose work was scraped from the internet. The relief sought is an injunction and either actual damages plus the infringer's profits, or a statutory sum the plaintiff can elect instead.
Where the right comes from
Copyright is entirely a creature of statute, and the private right of action is express:
The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it.
Note the two limits inside that sentence. Only the legal or beneficial owner of an exclusive right may sue — a non-exclusive licensee cannot. And the right to sue is expressly "subject to the requirements of section 411," which is the registration precondition below.
What a plaintiff has to prove
Two elements, stated in Feist Publications v. Rural Telephone Service:
- Ownership of a valid copyright.
- Copying of constituent elements of the work that are original.
The second element usually splits in practice. First, did the defendant copy at all? That is normally shown by access plus similarity, since direct evidence is rare. Second, did the copying take enough protected expression to matter? That is the substantial-similarity question, and it is where most contested cases are won and lost — facts, ideas, and stock elements are not protected, however much of them was taken.
Ordinary pleading standards apply.
How long you have to file
The statute is express and short:
No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.
Most circuits apply a discovery rule, so the claim accrues when the plaintiff discovered or reasonably should have discovered the infringement — not necessarily when it happened. Each separate act of infringement starts its own clock.
This is the part that changed. Courts used to cap damages at three years back from filing no matter what. In Warner Chappell Music v. Nealy (2024) the Supreme Court held that if a claim is timely under the discovery rule, the plaintiff may recover damages for the whole span of the infringement, however long ago it began. There is no separate three-year damages lookback.
One caution, and it is a real one. Nealy assumed without deciding that the discovery rule exists. Three justices dissented on precisely that point. If a later case eliminates the discovery rule, the reach of these claims shortens sharply. Treat this as settled for now and unsettled in principle.
Laches cannot bar a damages claim brought inside the three-year window — that was decided in Petrella v. Metro-Goldwyn-Mayer.
What has to happen before you file
Register the work. The statute says no civil action for infringement of a United States work may be instituted "until preregistration or registration of the copyright claim has been made."
In Fourth Estate Public Benefit Corp. v. Wall-Street.com (2019) the Supreme Court held unanimously that registration "has been made" only when the Copyright Office acts — registering the claim or refusing it. Filing the application does not do it. That resolved a split, and it lengthened the practical runway on every claim, because the Office takes months.
Two refinements worth knowing:
- The requirement is a claim-processing rule, not a jurisdictional bar. A defendant that fails to raise it can forfeit it.
- Separately, registration timing controls remedies. Statutory damages and attorney's fees are unavailable for infringement that began before registration — unless the work was registered within three months of first publication. A plaintiff who registers only after discovering the infringement keeps the claim and loses the two remedies that make small cases worth bringing.
Who can be sued — and who cannot
Anyone who violates one of the exclusive rights. Liability also reaches those who materially contribute to another's infringement or who profit from it while declining to stop it.
States cannot be sued for damages. The Supreme Court struck down Congress's attempt to abrogate state sovereign immunity for copyright claims in Allen v. Cooper. A state university that copies your work is beyond a damages judgment.
Common defenses
Fair use, the four-factor inquiry into purpose and character, the nature of the work, the amount taken, and the effect on the market. It is an affirmative defense and the defendant carries it. The Supreme Court narrowed the first factor in Andy Warhol Foundation v. Goldsmith (2023), directing courts to weigh whether the new use shares the same commercial purpose as the original rather than asking only whether it added something.
Independent creation — a complete answer, since copyright prohibits copying, not coincidence.
License or authorization, express or implied.
Invalidity, usually a lack of originality.
First sale, which lets the owner of a lawfully made copy resell it.
De minimis copying, and the related doctrines that strip protection from stock or functional elements.
What the claim pays
The plaintiff elects, any time before final judgment, between two measures.
Actual damages plus the infringer's profits attributable to the infringement.
Statutory damages, from $750 to $30,000 per work — per work, not per act of infringement. That floor rises to as much as $150,000 per work for willful infringement and drops to as little as $200 where the infringer proves innocence.
Injunctions and impoundment of infringing copies are available. Attorney's fees are discretionary and — unusually for federal fee-shifting — apply evenhandedly to prevailing plaintiffs and prevailing defendants alike, under Fogerty v. Fantasy.
Both statutory damages and fees remain gated by the registration-timing rule above.
What people get wrong
"I don't have a copyright until I register." You do. Protection attaches when the work is fixed in a tangible form. Registration is a ticket to court and a gateway to two remedies.
"Filing the application lets me sue." Not since Fourth Estate. The Office has to act.
"Poor man's copyright — mail yourself a copy." It has no legal effect at all.
"Anything on the internet is free to use." No. Posting does not surrender anything.
"If I change it 20 percent it's mine." There is no percentage. The question is whether protected expression was taken, judged qualitatively.
"Crediting the author makes it legal." Attribution is not permission and is not a defense.
"Damages only reach back three years." Not after Nealy, if the claim is timely under the discovery rule.
Where it came from
The modern statute is the Copyright Act of 1976, effective in 1978, which replaced the 1909 Act and swept away the old common-law copyright for fixed works. The Berne Convention Implementation Act of 1989 removed the notice formalities that had once forfeited protection outright for publishing without a © symbol. The Digital Millennium Copyright Act of 1998 added anti-circumvention rules and the safe harbours that shaped how online platforms handle infringement.
The current pressure point is machine learning. Whether training a model on copyrighted works is fair use is being litigated hard, and the answer is not settled.
Common questions
Do I have to register a copyright before I can sue?
Yes for a United States work, and the Copyright Office must act on the application — by registering or refusing it — before you file. Submitting the application is not enough.
What is the deadline for a copyright infringement claim?
Three years after the claim accrued. Most circuits apply a discovery rule, so the clock starts when you discovered or should have discovered the infringement.
How far back can I recover damages?
For a claim that is timely under the discovery rule, the whole period of infringement. The Supreme Court rejected a separate three-year damages cap in Warner Chappell Music v. Nealy in 2024.
How much are statutory damages?
Between $750 and $30,000 per work, rising to $150,000 per work for willful infringement and falling to $200 for innocent infringement. They are available only if the work was registered before the infringement began, or within three months of first publication.
Can I sue a state university for copyright infringement?
Not for damages. State sovereign immunity bars those claims, and the Supreme Court held in Allen v. Cooper that Congress's attempt to remove that immunity was invalid.