Copyright Claim Timeliness Checklist: A Practical Checklist

How to use this checklist

Print it and work it in order the first time. The order is deliberate. Forum comes before dates because the accrual rule depends on the circuit, and claim type comes before dates because ownership disputes run on a separate clock. People who begin with "when did this happen?" tend to reach a confident wrong answer.

Phases 0 to 5 apply to both sides, and they are the analysis. Phase 6 is for the plaintiff, Phase 7 for the defendant, and Phases 8 and 9 are for both once a case is filed. Keep the output in the matter file with a date on it, because this analysis changes every time a fact, a filing date, or a court of appeals changes. For the reasoning behind each item, see The Copyright Statute of Limitations After Warner Chappell v. Nealy: Discovery, Separate Accrual, and How Far Back Damages Reach. For the step-by-step narrative, see Evaluating the Timeliness of a Copyright Claim: A Practical Guide. For forms, see Copyright Timeliness Toolkit: Accrual Chronologies, Tolling Agreements, and Limitations Motions.

Each item names its authority. Check what your own circuit has said since. Copyright timeliness is an area where the Supreme Court has expressly left a central question open.

Phase 0: Fix the forum and the governing rule

• Identify the likely forum and every alternative venue. Copyright claims are exclusively federal. 28 U.S.C. § 1338(a). Note: A plaintiff with a choice should run this checklist for each candidate circuit. A defendant should think about whether a declaratory action would change the answer.
• Confirm the circuit's accrual rule for infringement. Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024) assumes the discovery rule without deciding. Eleven circuits apply it, as collected in Michael Grecco Productions, Inc. v. RADesign, Inc., 112 F.4th 144 (2d Cir. 2024), 112 F.4th at 150 n.4. Note: The D.C. Circuit has not decided. See Olson v. Law Offices of Paul Garrity, (D.D.C. May 25, 2026).
• In the Eleventh Circuit, treat the rule as unsettled for ordinary infringement. Compare McClatchy Co. v. EBSCO Information Services Inc., No. 2:24-cv-01076 (N.D. Ala. May 28, 2025) (injury rule for ordinary claims) with Global Weather Productions, LLC v. Wood Projections, Inc., No. 1:24-cv-23528 (S.D. Fla. Jan. 5, 2026) (noting the circuit has not explicitly adopted either, and that Florida district courts routinely apply discovery). Note: Argue in the alternative, and calculate both ways.
• Check the circuit's formulation of constructive discovery. Hayden v. Koons, No. 25-498-cv (2d Cir. July 21, 2026) (2d Cir.); William A. Graham Co. v. Haughey, 568 F.3d 425 (3d Cir. 2009) (3d Cir.); Chicago Building Design, P.C. v. Mongolian House, Inc., 770 F.3d 610 (7th Cir. 2014) (7th Cir.); Oracle America, Inc. v. Hewlett Packard Enterprise Co., 971 F.3d 1042 (9th Cir. 2020) (9th Cir.); Warren Freedenfeld Associates, Inc. v. McTigue, 531 F.3d 38 (1st Cir. 2008) (1st Cir.).
• Search for district decisions from the last two years before your assigned judge or in your district. Lixenberg v. Complex Media, Inc., No. 1:22-cv-00354 (S.D.N.Y. Oct. 29, 2025) is a good example of how a district court extends an appellate decision.
• Rule out a different clock. Infringement by or for the United States goes to the Court of Federal Claims with its own recovery limit. 28 U.S.C. § 1498(b).
• Calculate under the injury rule as well, every time. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014), 572 U.S. at 670; Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024) (Gorsuch, J., dissenting). Note: This sizes the downside if the Supreme Court takes the question. The Court denied review in Hearst Newspapers v. Martinelli, No. 23-474 (May 20, 2024), and RADesign v. Michael Grecco Productions, No. 24-768 (June 16, 2025), so the rule stands for now but remains unreviewed.

Red flag: A memo that says "the discovery rule applies" and cites only Nealy. Nealy did not hold that. Cite your circuit's case.

Phase 1: Classify each claim

• List every claim and theory separately. Infringement, ownership or authorship declaration, DMCA, contract, state law.
• Apply the gravamen test to each infringement claim. Can it be decided without resolving ownership? If not, ownership timing controls. Kwan v. Schlein, 634 F.3d 224 (2d Cir. 2011); Seven Arts Filmed Entertainment Ltd. v. Content Media Corp., 733 F.3d 1251 (9th Cir. 2013); Webster v. Dean Guitars, 955 F.3d 1270 (11th Cir. 2020). Note: A defendant who admits use and says "we own it" has just raised this issue. A defendant who denies copying probably has not.
• Identify the parties' relationship. Co-authors, assignor and assignee, employer and contractor, licensee, stranger. Ritchie v. Williams, 395 F.3d 283 (6th Cir. 2005) extends repudiation to those in close relationships. Note: Seven Arts Filmed Entertainment Ltd. v. Content Media Corp., 733 F.3d 1251 (9th Cir. 2013) left open which rule governs suits against unknown third parties.
• Assign a clock to any DMCA claim. Section 507(b) reaches it, but whether separate accrual does is open. Media Rights Technologies, Inc. v. Microsoft Corp., 922 F.3d 1014 (9th Cir. 2019); Hayden v. Koons, No. 25-498-cv (2d Cir. July 21, 2026); 17 U.S.C. § 1202; 17 U.S.C. § 1203.
• Assign state-law periods to contract claims. Royalties and license breach have their own limitations rule. See Statutes of Limitations, Accrual, and Tolling: The Clock That Ends Most Claims.
• Screen state-law claims for preemption. 17 U.S.C. § 301. A preempted claim may be treated as a copyright claim subject to § 507(b). Ritchie v. Williams, 395 F.3d 283 (6th Cir. 2005). See Copyright Preemption Under Section 301: When Federal Law Wipes Out Your State Law Claim.
• If the case might go to the Copyright Claims Board, note its parallel clock. 17 U.S.C. § 1504(b). See Copyright Claims Board Filing and Opt-Out Checklist: A Practical Checklist.

Red flag: "This is just an infringement case" from a client whose real grievance is "they are claiming my song is theirs." Plaintiffs do not get to pick the gravamen by labeling it.

Phase 2: Build the chronology for infringement accrual

• Record the planned or actual filing date, and calculate the line three years back. 17 U.S.C. § 507(b); Michael Grecco Productions, Inc. v. RADesign, Inc., 112 F.4th 144 (2d Cir. 2024) (window runs back from filing, not forward from first infringement).
• Confirm how commencement works. Filing commences the action. Fed. R. Civ. P. 3. Calendar service too. Fed. R. Civ. P. 4(m).
• List each infringing act on its own row. Reproduction, distribution, derivative, public display, public performance. 17 U.S.C. § 106; 17 U.S.C. § 501. Note: Under separate accrual, each act "starts a new limitations period." Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014), 572 U.S. at 671.
• Mark each act as inside or outside the line. Acts inside are timely under any rule. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014).
• Do not use later acts to rescue earlier ones. Chicago Building Design, P.C. v. Mongolian House, Inc., 770 F.3d 610 (7th Cir. 2014); Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir. 1997); Polar Bear Productions, Inc. v. Timex Corp., 384 F.3d 700 (9th Cir. 2004).
• For acts outside the line, record the date of actual knowledge, with who knew and how. Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120 (2d Cir. 2014). Note: Include agents, licensing companies, and staff. Ordinary agency law may charge their knowledge to the owner.
• For the same acts, record every fact bearing on what a diligent owner should have known. Hayden v. Koons, No. 25-498-cv (2d Cir. July 21, 2026); Oracle America, Inc. v. Hewlett Packard Enterprise Co., 971 F.3d 1042 (9th Cir. 2020).
• Test the facts the Second Circuit listed. How easy or hard to discover was this use? What technology existed then? Was the owner using it? How often? What else? Michael Grecco Productions, Inc. v. RADesign, Inc., 112 F.4th 144 (2d Cir. 2024).
• Test whether warnings came after the wrong. A warning about future infringement does not start the clock. William A. Graham Co. v. Haughey, 568 F.3d 425 (3d Cir. 2009).
• Test the defendant's facts for more than the calendar. The passage of time alone is insufficient. Sohm v. Scholastic Inc., 959 F.3d 39 (2d Cir. 2020); Hayden v. Koons, No. 25-498-cv (2d Cir. July 21, 2026).
• Test the plaintiff's position for more than ignorance. Actual ignorance is not determinative of constructive discovery. Hayden v. Koons, No. 25-498-cv (2d Cir. July 21, 2026).
• Note the date a second, different infringement came to light. Knowledge of one act may or may not put the owner on notice of others. See how investigation unfolded in Starz Entertainment, LLC v. MGM Domestic Television Distribution, LLC, 39 F.4th 1236 (9th Cir. 2022) and contrast the duty to investigate in Oracle America, Inc. v. Hewlett Packard Enterprise Co., 971 F.3d 1042 (9th Cir. 2020).

Red flag: A complaint that boasts of tireless monitoring or of the defendant's worldwide fame. Grecco survived the first on appeal after real expense. In Hayden, the second became a binding admission.

Red flag: Computing the window from the first infringement "plus three years." The Second Circuit said that calculation is the injury rule in effect.

Phase 3: Online, hosted, and software acts

• Capture the page, file, URL, and metadata before anything is removed. Fed. R. Civ. P. 37(e); see Litigation Hold and Evidence Preservation Checklist: A Practical Checklist.
• Separate the upload from later availability. The upload copy is a reproduction. Display depends on transmission. 17 U.S.C. § 106; 17 U.S.C. § 101.
• Determine who actually serves the file. The Ninth Circuit's server test assigns display to the party storing and serving. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007); Hunley v. Instagram, LLC, 73 F.4th 1060 (9th Cir. 2023). Other courts have disagreed. Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585 (S.D.N.Y. 2018).
• Check whether the file is still reachable after the page was removed. Try the direct URL, alternate file names, and reverse image search. Bell v. Wilmott Storage Services, LLC, 12 F.4th 1065 (9th Cir. 2021).
• Decide which theory of hosted display you will assert or resist. One act with continuing harm; a new wrong each day; a new wrong for each transmission. Petrella footnote 6; Foss v. Eastern States Exposition, No. 24-1360 (1st Cir. Aug. 21, 2025) (daily theory waived, leaning toward continuing harm in dicta).
• Raise your theory in the opening district court papers. Foss v. Eastern States Exposition, No. 24-1360 (1st Cir. Aug. 21, 2025) shows what happens otherwise.
• Pull server, CDN, and CMS records for the critical dates. Authenticate under Fed. R. Evid. 901 and Fed. R. Evid. 902(13) and (14). Note: Log retention can be short, so suspend rotation at once. See Hearsay and Business Records Checklist: A Practical Checklist.
• For physical copies held out to the public, consider the Fourth Circuit's rule. Holding and listing an infringing copy was distribution in Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir. 1997). Treat this as an argument outside that circuit.
• For software, list each install, deployment, and release as its own event. 17 U.S.C. § 106; Oracle America, Inc. v. Hewlett Packard Enterprise Co., 971 F.3d 1042 (9th Cir. 2020) (Solaris patches).
• Check whether the licensor had reason to suspect overuse. Oracle America, Inc. v. Hewlett Packard Enterprise Co., 971 F.3d 1042 (9th Cir. 2020) charges suspicion with a duty to investigate.
• For hidden code copying, document concealment. Motorola Solutions, Inc. v. Hytera Communications Corp., 108 F.4th 458 (7th Cir. 2024) (altered source code); Taylor v. Meirick, 712 F.2d 1112 (7th Cir. 1983).
• For a licensed work used beyond scope, separate the copyright clock from the contract clock. Sohm v. Scholastic Inc., 959 F.3d 39 (2d Cir. 2020) for copyright; state law for contract.

Red flag: "We took the post down in 2022, so we're safe." Confirm with someone who can read a storage listing. Bell involved a copy at a slightly different address, a year after the supposed removal.

Phase 4: Ownership and repudiation

• Gather every statement about ownership. Contracts, emails, credits, registrations, royalty statements, demand letters. Everly v. Everly, 958 F.3d 442 (6th Cir. 2020); Wilson v. Dynatone Publishing Co., 892 F.3d 112 (2d Cir. 2018).
• Apply the circuit's test. Sixth and Ninth: plain and express repudiation. Zuill v. Shanahan, 80 F.3d 1366 (9th Cir. 1996); Ritchie v. Williams, 395 F.3d 283 (6th Cir. 2005). Others: when a reasonable person would have known, with repudiation sufficient. Webster v. Dean Guitars, 955 F.3d 1270 (11th Cir. 2020); Kwan v. Schlein, 634 F.3d 224 (2d Cir. 2011).
• Look for a direct statement of exclusive rights to the claimant. Ritchie v. Williams, 395 F.3d 283 (6th Cir. 2005) (letter); Webster v. Dean Guitars, 955 F.3d 1270 (11th Cir. 2020) (email).
• Look for a signed assignment or contract. Consumer Health Information Corp. v. Amylin Pharmaceuticals, Inc., 819 F.3d 992 (7th Cir. 2016).
• Look for a demand letter threatening enforcement. Sumrall v. LeSEA, Inc., 104 F.4th 622 (7th Cir. 2024); Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004).
• Look for publication without credit that the claimant saw. Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000); Kwan v. Schlein, 634 F.3d 224 (2d Cir. 2011).
• Look for open exploitation without royalties. Wilson v. Dynatone Publishing Co., 892 F.3d 112 (2d Cir. 2018).
• Check the candidate event was actually adverse to ownership. A royalties or contract dispute may not be. Estate of George Worrell, Jr. v. Thang, Inc., No. 25-1863 (6th Cir. May 27, 2026); Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d 383 (6th Cir. 2007).
• Check communication to the claimant. A registration on file did not suffice by itself in Wilson v. Dynatone Publishing Co., 892 F.3d 112 (2d Cir. 2018).
• Check for equivocation. An offer to discuss credit later may leave the question open, and then it is not repudiation as a matter of law. Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000).
• Check each work, version, and copyright term separately. Repudiation in the original term does not automatically reach the renewal term. Wilson v. Dynatone Publishing Co., 892 F.3d 112 (2d Cir. 2018); 17 U.S.C. § 304.
• Calculate three years from the earliest qualifying event, once. Zuill v. Shanahan, 80 F.3d 1366 (9th Cir. 1996); Merchant v. Levy, 92 F.3d 51 (2d Cir. 1996).
• Decide whether the time bar also defeats a defense. Garza v. Everly, 59 F.4th 876 (6th Cir. 2023).
• Run the transfer formalities. Written and signed transfers under 17 U.S.C. § 204; recordation under 17 U.S.C. § 205; work for hire under 17 U.S.C. § 101 and 17 U.S.C. § 201. See Work Made for Hire Determination Checklist: A Practical Checklist.
• Flag any termination overlap. 17 U.S.C. § 203; 17 U.S.C. § 304. See Exercising or Defending a Copyright Termination: A Practical Guide.

Red flag: Treating Everly v. Everly, 958 F.3d 442 (6th Cir. 2020)'s three routes as automatic. The Sixth Circuit reversed a district court for doing exactly that in Worrell.

Red flag: A decade-old email in a client's file saying "that's ours, not yours." Find it before opposing counsel does, whichever side you are on.

Phase 5: Tolling, estoppel, and the damages window

Tolling and estoppel

• Keep accrual and tolling separate. The discovery rule is the accrual rule, and it is not tolling. Michael Grecco Productions, Inc. v. RADesign, Inc., 112 F.4th 144 (2d Cir. 2024).
• Screen for fraudulent concealment. False credits, altered files, misleading answers. Taylor v. Meirick, 712 F.2d 1112 (7th Cir. 1983); Stone v. Williams, 970 F.2d 1043 (2d Cir. 1992). Note: Concealment tolls only until a diligent plaintiff could have known. Stone v. Williams, 970 F.2d 1043 (2d Cir. 1992). Plead with particularity. Fed. R. Civ. P. 9(b).
• Assign the burden. The plaintiff bears it on tolling. Prather v. Neva Paperbacks, Inc., 446 F.2d 338 (5th Cir. 1971); Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 3:23-cv-00026 (S.D. Miss. July 29, 2025).
• Apply federal equitable principles, and not a state tolling doctrine. Prather v. Neva Paperbacks, Inc., 446 F.2d 338 (5th Cir. 1971).
• Do not count pending registration time. Foss v. Eastern States Exposition, No. 24-1360 (1st Cir. Aug. 21, 2025); Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019).
• Do not count time in a dismissed earlier suit without authority for it. Foss v. Eastern States Exposition, No. 24-1360 (1st Cir. Aug. 21, 2025); Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 3:23-cv-00026 (S.D. Miss. July 29, 2025).
• Check for a signed tolling agreement, its parties, its date, and its works. Oracle America, Inc. v. Hewlett Packard Enterprise Co., 971 F.3d 1042 (9th Cir. 2020) counted back from the tolling date.
• Count any Copyright Claims Board proceeding. 17 U.S.C. § 1504(b).
• Consider class action tolling if a class case covered the claim. American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974).
• Screen for estoppel. Intentionally misleading statements about not suing, plus detrimental reliance. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014), 572 U.S. at 684-85. See Understanding Equitable Defenses: A Comprehensive Guide to Laches, Acquiescence, Waiver, and Equitable Estoppel.
• Treat laches as a remedial and extraordinary-case argument only. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014) (citing Chirco v. Crosswinds Communities, Inc., 474 F.3d 227 (6th Cir. 2007)).

Damages window

• Confirm each act's timeliness before pricing it. A timely act carries its damages however old. Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024).
• Remove any reliance on a three-year damages cap. Sohm v. Scholastic Inc., 959 F.3d 39 (2d Cir. 2020) is abrogated on that point. Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024); Starz Entertainment, LLC v. MGM Domestic Television Distribution, LLC, 39 F.4th 1236 (9th Cir. 2022).
• Confirm the effective date of registration. 17 U.S.C. § 412.
• Find the first act in the series and compare it to registration. Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696 (9th Cir. 2008); Bouchat v. Bon-Ton Department Stores, Inc., 506 F.3d 315 (4th Cir. 2007). Note: If the first act came first, statutory damages and fees are off the table for that series unless the three-month publication grace period applies.
• Check the certificate's timing for the presumption of validity. Registration within five years of first publication. 17 U.S.C. § 410(c); Webster v. Dean Guitars, 955 F.3d 1270 (11th Cir. 2020).
• Model actual damages and profits by year, so the line can move. 17 U.S.C. § 504(b).
• Remember that statutory damages are per work and not per act. 17 U.S.C. § 504(c).
• Assess the effect of delay on profits and injunction. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014); 17 U.S.C. § 502.
• Assess mitigation as a factor. Energy Intelligence Group, Inc. v. Kayne Anderson Capital Advisors, L.P., 948 F.3d 261 (5th Cir. 2020).
• Assess fee exposure. 17 U.S.C. § 505. Note: For more on remedies, see Copyright Damages and Remedies: Statutory Damages, Profits, Injunctions, and Fees.

Red flag: A plaintiff's valuation built on statutory damages when the first infringing act predates registration. Do the § 412 arithmetic before the demand goes out.

Phase 6: Plaintiff's filing decisions

• Register, or confirm registration, before suing. 17 U.S.C. § 411(a); Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019); Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010). See Copyright Registration Checklist: A Practical Checklist. Note: If the line is close, ask about special handling and check the current fee schedule and processing times.
• Issue a litigation hold before sending any letter. Cover monitoring records, vendor reports, and search history. Fed. R. Civ. P. 37(e); see Litigation Holds, Spoliation, and Rule 37(e): Preserving Electronic Evidence Before It Costs You the Case.
• Capture the discovery moment. Screenshot, URL, date, who found it, how.
• Read every prior pleading the client has filed. Foss v. Eastern States Exposition, No. 24-1360 (1st Cir. Aug. 21, 2025) used them.
• Decide what the demand letter will say about discovery. It is evidence of knowledge by its date. Settlement communications have limited protection. Fed. R. Evid. 408.
• If talks will be real, ask for a tolling agreement in the first letter. Oracle America, Inc. v. Hewlett Packard Enterprise Co., 971 F.3d 1042 (9th Cir. 2020).
• Consider protective filing. Do this where the line threatens valuable acts.
• Decide how much to plead about timeliness. You need not plead it. Michael Grecco Productions, Inc. v. RADesign, Inc., 112 F.4th 144 (2d Cir. 2024); Jones v. Bock, 549 U.S. 199 (2007). See Drafting a Complaint That Survives a Motion to Dismiss.
• Attach a schedule of acts. Support act-by-act rulings.
• Keep all copyright claims in the first complaint, if possible. Motorola Solutions, Inc. v. Hytera Communications Corp., 108 F.4th 458 (7th Cir. 2024) discussed the three years before copyright claims were added by amendment. Consider relation back. Fed. R. Civ. P. 15(c).
• Identify every defendant before the line. Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010) governs relation back for a new party.
• For a DMCA theory, plead it as its own accrual. Hayden v. Koons, No. 25-498-cv (2d Cir. July 21, 2026) shows the cost of not developing it.

Red flag: Filing, being dismissed for lack of registration, and planning to refile "when the certificate arrives." In Foss v. Eastern States Exposition, No. 24-1360 (1st Cir. Aug. 21, 2025) the First Circuit refused equitable tolling on a similar history.

Phase 7: Defendant's response

• Issue a hold on receipt of a demand. Suspend log rotation. Fed. R. Civ. P. 37(e). See Litigation Hold and Evidence Preservation Checklist: A Practical Checklist.
• Capture first, then remove every copy. Bell v. Wilmott Storage Services, LLC, 12 F.4th 1065 (9th Cir. 2021).
• Ask for the discovery date, registration, and chain of title. See Image Copyright Demand Response Checklist: A Practical Checklist for image claims.
• Get first and last use dates from systems, and not from memory.
• Identify third-party sources and indemnity. Freelancers, agencies, stock accounts, licensors. See Contributory and Vicarious Copyright Liability After Cox v. Sony: Who Pays When Someone Else Infringes for how liability spreads.
• Decide on a repudiation letter if ownership is contested. Zuill v. Shanahan, 80 F.3d 1366 (9th Cir. 1996); Estate of George Worrell, Jr. v. Thang, Inc., No. 25-1863 (6th Cir. May 27, 2026) (address ownership, not just contract rights).
• Decide on a declaratory action. 28 U.S.C. § 2201; Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014) (noting that protection).
• Calculate the cost of any standstill before signing. Tolling keeps old acts alive. Include a non-revival clause.
• Plead limitations with facts. Fed. R. Civ. P. 8(c)(1). See Drafting an Answer and Affirmative Defenses: A Practical Guide.
• Plead and preserve the injury rule, even under contrary circuit precedent. Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024) (footnote 1 explains why the petitioner could not raise it).
• Plead estoppel separately if the facts support it. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014).

Red flag: A defense built on "they sue everybody, so they must have known." In the Second Circuit that is Michael Grecco Productions, Inc. v. RADesign, Inc., 112 F.4th 144 (2d Cir. 2024), and it loses.

Phase 8: Motions and discovery

• Rule 12: confirm the bar is clear on the face of the complaint or noticeable filings. Fed. R. Civ. P. 12(b)(6); Jones v. Bock, 549 U.S. 199 (2007); Michael Grecco Productions, Inc. v. RADesign, Inc., 112 F.4th 144 (2d Cir. 2024); Staehr v. Hartford Financial Services Group, Inc., 547 F.3d 406 (2d Cir. 2008).
• Rule 12: confirm any noticed filing is used only for what notice allows. Fed. R. Evid. 201; Michael Grecco Productions, Inc. v. RADesign, Inc., 112 F.4th 144 (2d Cir. 2024).
• Rule 12: consider ownership gravamen on the face of the complaint. Seven Arts Filmed Entertainment Ltd. v. Content Media Corp., 733 F.3d 1251 (9th Cir. 2013).
• Rule 12: anticipate conversion and Rule 56(d). Fed. R. Civ. P. 12(d); Fed. R. Civ. P. 56.
• Raise limitations in the Rule 26(f) discussion and ask about phasing. Fed. R. Civ. P. 26. See Motions to Dismiss Under Rule 12: A Practical Guide for Plaintiffs and Defendants.
• Serve targeted limitations discovery early. First knowledge, monitoring, press, agents. Fed. R. Civ. P. 30(b)(6); Fed. R. Civ. P. 45.
• Plan the privilege position on monitoring data. Expect a sword-and-shield argument.
• Rule 56, defendant: tie specific publications and facts to this plaintiff. Hayden v. Koons, No. 25-498-cv (2d Cir. July 21, 2026); Webster v. Dean Guitars, 955 F.3d 1270 (11th Cir. 2020). See Summary Judgment Motion Checklist: A Practical Checklist.
• Rule 56, defendant: ask in the alternative for partial judgment on older acts. Fed. R. Civ. P. 56.
• Rule 56, plaintiff: offer facts on monitoring and detectability, not just a denial of knowledge. Sohm v. Scholastic Inc., 959 F.3d 39 (2d Cir. 2020); Warren Freedenfeld Associates, Inc. v. McTigue, 531 F.3d 38 (1st Cir. 2008).
• Rule 56, ownership: show the event addressed ownership, or that it did not. Estate of George Worrell, Jr. v. Thang, Inc., No. 25-1863 (6th Cir. May 27, 2026); Everly v. Everly, 958 F.3d 442 (6th Cir. 2020).

Phase 9: Trial and appeal

• Propose an instruction on discovery and constructive discovery using the circuit's words. Fed. R. Civ. P. 51; Hayden v. Koons, No. 25-498-cv (2d Cir. July 21, 2026).
• Request a special verdict or interrogatories by group of acts. Fed. R. Civ. P. 49; William A. Graham Co. v. Haughey, 568 F.3d 425 (3d Cir. 2009).
• Ask how the judge will allocate tolling and equitable issues.
• Move under Rule 50 on limitations at the right times. Fed. R. Civ. P. 50.
• Separate timely and untimely periods in the damages presentation. Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024).
• Carry the injury rule through to the appellate brief, if you are a defendant preserving it. Martinelli v. Hearst Newspapers, L.L.C., 65 F.4th 231 (5th Cir. 2023).
• State your hosted-display theory in the opening brief, with analysis. Foss v. Eastern States Exposition, No. 24-1360 (1st Cir. Aug. 21, 2025).
• State any DMCA separate-accrual theory with analysis. Hayden v. Koons, No. 25-498-cv (2d Cir. July 21, 2026).
• Know your standard of review. De novo for summary judgment (Hayden v. Koons, No. 25-498-cv (2d Cir. July 21, 2026)); abuse of discretion for tolling (Foss v. Eastern States Exposition, No. 24-1360 (1st Cir. Aug. 21, 2025)); clear error after a bench trial (Garza v. Everly, 59 F.4th 876 (6th Cir. 2023)).

Red flag: An appeal where the key timing theory first shows up in a reply brief. That is Foss.

A short word of caution: this checklist is a general working aid, and how these items come out depends on your facts and your court, so treat it as a starting point and not as advice on your matter.

Related Documents

Related Articles

• The Copyright Statute of Limitations After Warner Chappell v. Nealy: Discovery, Separate Accrual, and How Far Back Damages Reach: the doctrine behind each phase.
• Statutes of Limitations, Accrual, and Tolling: The Clock That Ends Most Claims: general accrual and tolling concepts.
• Copyright Damages and Remedies: Statutory Damages, Profits, Injunctions, and Fees: statutory damages, profits, and § 412 in detail.
• Understanding Equitable Defenses: A Comprehensive Guide to Laches, Acquiescence, Waiver, and Equitable Estoppel: laches and estoppel.
• Copyright Preemption Under Section 301: When Federal Law Wipes Out Your State Law Claim: the state-law claims screened in Phase 1.
• Contributory and Vicarious Copyright Liability After Cox v. Sony: Who Pays When Someone Else Infringes: other parties who may be liable and their clocks.

Related Guides

• Evaluating the Timeliness of a Copyright Claim: A Practical Guide: the narrative version of this checklist with worked examples.
• Responding to an Image Copyright Infringement Demand: A Practical Guide: handling demand letters for old image uses.
• Exercising or Defending a Copyright Termination: A Practical Guide: where termination and ownership timing overlap.

Related Checklists

• Copyright Infringement Claim Evaluation Checklist: A Practical Checklist: the merits checklist to run alongside this one.
• Statute of Limitations Diary Checklist: A Practical Checklist: tracking the dates you identify here.
• Image Copyright Demand Response Checklist: A Practical Checklist: first steps on a photo demand.
• Federal Deadline Calendaring and Recovery Checklist: A Practical Checklist: calendaring and recovery controls.

Related Toolkits

• Copyright Timeliness Toolkit: Accrual Chronologies, Tolling Agreements, and Limitations Motions: the forms that go with these tasks.
• Image Rights Toolkit: Claim Evaluation Worksheets, Response Letters, and Image Licensing Records: image-specific worksheets and letters.