To file a copyright infringement case, you register the work with the U.S. Copyright Office, then file a complaint in federal district court showing that you own a valid copyright and that the defendant copied your original creative expression without permission. Federal courts have exclusive jurisdiction over copyright claims, so state court is not an option.1Office of the Law Revision Counsel. 28 USC 1338 – Patents, Plant Variety Protection, Copyrights, Mask Works, Designs, Trademarks, and Unfair Competition Before you file, work through the registration timing, the alternatives, and the standing questions below. Each one can change what the case is worth or whether you have a case at all.
Register First — Timing Controls What You Can Recover
You cannot file a copyright infringement lawsuit in federal court until your work is registered with the Copyright Office, or at minimum until you have applied and been refused.2Office of the Law Revision Counsel. 17 USC 411 – Registration and Civil Infringement Actions Registration requires an application, a filing fee, and a copy of the work. Electronic filing starts at $45; paper filing runs $125.3U.S. Copyright Office. Fees
When you registered matters as much as whether you registered. If you did not register before the infringement began, or within three months of first publishing the work, you lose access to statutory damages and attorney’s fees entirely.4Office of the Law Revision Counsel. 17 USC 412 – Registration as Prerequisite to Certain Remedies for Infringement You are left with actual damages, which are harder to prove and often smaller than the statutory maximum of $150,000 per work. This is the costliest mistake in copyright enforcement, and it is entirely preventable by registering promptly after creating or publishing a work.
Consider a DMCA Takedown or the Copyright Claims Board First
Federal litigation is not always the right first move. If the infringing material sits on an online platform, a DMCA takedown notice is faster and cheaper. Online service providers must promptly remove or disable access to infringing material once they receive a proper notification.5Office of the Law Revision Counsel. 17 USC 512 – Limitations on Liability Relating to Material Online The notice must identify the copyrighted work, point to the infringing material with enough detail to locate it, include your contact information, include a good-faith statement that the use is unauthorized, and affirm under penalty of perjury that you are authorized to act for the copyright owner.
Most major platforms respond within days. The alleged infringer can file a counter-notification, which puts the material back up unless you file a lawsuit within ten to fourteen business days. A takedown stops ongoing infringement but will not compensate you for past harm.
For smaller claims, the Copyright Claims Board inside the Copyright Office offers an alternative to federal court. Total damages are capped at $30,000 per proceeding, with statutory damages limited to $15,000 per work.6Office of the Law Revision Counsel. 17 USC 1504 – Nature of Proceedings Participation is voluntary. A respondent has sixty days from being served to opt out, and if they do, the proceeding is dismissed without prejudice and you can still file in federal court.7Office of the Law Revision Counsel. 17 USC 1506 – Conduct of Proceedings If the respondent does not opt out, the proceeding becomes binding.8Copyright Claims Board. Respondent Information The process runs largely online, does not require an attorney, and moves faster than federal litigation. For claims worth a few thousand dollars, the CCB often makes more practical sense than hiring counsel for a full federal case.
Confirm You Have Standing to Sue
You can file only if you are the copyright owner or an exclusive licensee holding a specific right like reproduction or distribution.9Ninth Circuit Court of Appeals. Model Civil Jury Instructions 17.13 – Copyright Interests: Exclusive Licensee A non-exclusive license, the kind most freelancers and contributors receive, does not give you standing. If you acquired the copyright by assignment rather than creating the work yourself, you need documentation showing every transfer in the chain from the original author to you.
Work-made-for-hire rules trip up creators and clients constantly. An employee’s work within the scope of employment belongs to the employer automatically. For freelancers and independent contractors, the hiring party owns the copyright as a work made for hire only if the work fits a narrow list of categories (contributions to a larger work, translations, compilations, and a few others) and the parties signed a written agreement designating it as such.10Office of the Law Revision Counsel. 17 USC 101 – Definitions Without that written agreement, the freelancer keeps the copyright even if the client paid for the work.
What You Will Have to Prove
Every copyright claim rests on two elements. The first is a valid copyright. A work qualifies for protection if it is original and fixed in some tangible form, such as a recording, a manuscript, or a saved digital file.11Office of the Law Revision Counsel. 17 USC 102 – Subject Matter of Copyright: In General The creativity threshold is low. The work needs to reflect some independent creative choice, not brilliance. Protected categories include literary works, music, movies, photographs, software code, and architectural designs.
The second is unauthorized copying of your original expression. Direct evidence of copying is rare, so courts allow indirect proof through two factors: that the defendant had access to your work, and that the two works are substantially similar in their creative elements.12Ninth Circuit Court of Appeals. Model Civil Jury Instructions 17.17 – Copying: Access and Substantial Similarity Access means a reasonable opportunity to have encountered the work, through wide distribution, shared collaborators, or any connection that made exposure plausible.
Substantial similarity is where most cases are won or lost. The question is whether an ordinary person comparing the two works would find the creative elements fundamentally alike. Courts often break this into two steps: comparing specific elements like structure, melody, dialogue, or visual composition, then stepping back to assess the overall impression. Raw ideas, historical facts, and standard conventions are not protectable. If the overlap exists only in unprotectable elements like common plot structures or genre conventions, the claim fails.
Who You Can Name as a Defendant
Liability extends past whoever physically made the copy. A party that had the authority to stop the infringement and stood to profit from it financially can be held liable for vicarious infringement.13Ninth Circuit Court of Appeals. Model Civil Jury Instructions 17.20 – Secondary Liability: Vicarious Infringement This frequently applies to platform operators profiting from user-uploaded content. Contributory infringement reaches anyone who knew about the infringing activity and helped make it happen, whether by providing tools, hosting services, or active encouragement.
Filing and Litigating in Federal Court
The complaint lays out the factual basis for the claim: what you created, when you created it, how the defendant infringed, and the damages you are seeking. After filing, you must formally serve the defendant with notice of the lawsuit.
The defendant then has twenty-one days to respond, either by answering the complaint or filing a motion to dismiss.14Legal Information Institute. Federal Rules of Civil Procedure Rule 12 – Defenses and Objections If the case survives, discovery begins. Both sides exchange documents, take depositions, and request internal records. Discovery is where the bulk of litigation costs accumulate, and in copyright cases it can last six months or longer. Expect to produce your creative process documentation, registration records, and financial data showing lost revenue. The defendant will produce evidence about their own creative process and access to your work.
Most copyright disputes settle during or shortly after discovery, once both sides have a realistic picture of the evidence. If the case does not settle, it moves to summary judgment, where a judge can rule without a trial if the facts are sufficiently clear, or to a full trial before a judge or jury. The entire process from filing to final resolution typically takes twelve to thirty-six months. Courts encourage mediation throughout, and parties can agree to mediation at any stage.
Defenses to Expect
Fair Use
Fair use is the most frequently raised defense and the hardest to predict. Courts weigh four factors: the purpose and character of the use (including whether it is commercial or educational), the nature of the copyrighted work, how much was taken relative to the whole, and the effect on the market for the original.15Office of the Law Revision Counsel. 17 USC 107 – Limitations on Exclusive Rights: Fair Use No single factor is decisive. A use that transforms the original into something with a new meaning or message has a stronger argument than one that substitutes for buying the original. The market-impact factor often carries heavy weight: if the allegedly infringing work competes directly with the original, fair use becomes a tough sell.
Independent Creation
Copyright does not protect against coincidence. If two people independently create similar works without any knowledge of each other, neither has infringed. A defendant raising this defense needs evidence that their process was genuinely independent, such as early drafts, development logs, file metadata, or witness testimony. Proving access is the plaintiff’s job, and without it, independent creation is very hard to overcome.
Statute of Limitations
You have three years from the date your claim accrues to file.16Office of the Law Revision Counsel. 17 USC 507 – Limitations on Actions The clock generally starts when you discover the infringement or when you reasonably should have discovered it. Ongoing infringement complicates this, but the three-year window applies to each infringing act individually.
What You Can Recover
A winning plaintiff can recover actual damages (the financial harm caused by the infringement) plus any profits the infringer earned that are not already accounted for in those damages.17Office of the Law Revision Counsel. 17 USC 504 – Remedies for Infringement: Damages and Profits Proving actual damages requires documenting lost sales, licensing fees you would have charged, and the infringer’s revenue attributable to your work.
If your registration was timely, you can elect statutory damages instead. These range from $750 to $30,000 per work at the court’s discretion, and climb to a maximum of $150,000 per work if you prove the infringement was willful.17Office of the Law Revision Counsel. 17 USC 504 – Remedies for Infringement: Damages and Profits Statutory damages exist precisely because actual losses are often hard to quantify, and they give the plaintiff meaningful leverage in settlement negotiations.
Money is not the only remedy. Courts can issue injunctions ordering the defendant to stop all infringing activity immediately.18Office of the Law Revision Counsel. 17 USC 502 – Remedies for Infringement: Injunctions A temporary injunction can take effect while the case is pending, which matters when infringement is ongoing. A permanent injunction entered as part of the final judgment carries the threat of contempt if violated. Courts can also order the impoundment and eventual destruction of infringing copies and the equipment used to produce them, including physical copies, digital masters, printing plates, and production records.19Office of the Law Revision Counsel. 17 USC 503 – Remedies for Infringement: Impounding and Disposition of Infringing Articles Impoundment can happen at any point during the case, not just after final judgment.
The court has discretion to award reasonable attorney’s fees and full litigation costs to the prevailing party.20Office of the Law Revision Counsel. 17 USC 505 – Remedies for Infringement: Costs and Attorneys Fees This cuts both ways: a defendant who defeats a frivolous claim can recover their costs too. Like statutory damages, attorney’s fees are only available if the work was registered before the infringement began or within three months of first publication.4Office of the Law Revision Counsel. 17 USC 412 – Registration as Prerequisite to Certain Remedies for Infringement Federal copyright litigation is expensive, and for cases involving significant damages, legal costs can reach into six figures per side. The ability to shift those fees to the losing party changes the calculus for both sides and often drives settlements.