Summary. This checklist turns the Copyright Claims Board's statute and rules into a sequence of concrete tasks and deadlines for both sides of a small copyright dispute. The claimant parts cover screening a dispute for Board eligibility, locking down registration and ownership, building the evidence file, choosing the claim type and track, completing the eCCB claim form, surviving compliance review, and serving the respondent and filing proof of service on time. The respondent parts cover the day of service, investigating the claim, comparing exposure at the Board and in federal court, and either opting out correctly with the confirmation code or preparing to participate. Shared parts cover the active proceeding, settlement, defaults, and the short windows for reconsideration, the Register's review, district court challenges, and confirmation of an unpaid award. A one-page deadline card leads the document, and each item carries a short note and the governing provision of 17 U.S.C. sections 1501 to 1511, 37 C.F.R. Parts 220 to 234, or the case law the Board applies. The checklist reflects the statute, the regulations, and Board practice as of April 2025.

Day 60 is the date in a Copyright Claims Board case that both sides have to get right. A respondent who lets it pass in silence is bound by the decision of a tribunal inside the Copyright Office, with no Article III judge and no jury; a claimant who served the wrong packet, or never filed proof of service, may never get to day 60 at all. Most Board claims that fail do not fail on the merits. They stall at compliance review or die for want of valid service, and every one of those failures was a missed checkbox.

How to use this checklist

Claimants work through Parts 1 to 5 in order. Respondents start at Part 6 on the day the envelope arrives. Both sides use Parts 9 and 10 once a case becomes active and after it ends. Each item is an action, followed by a short note and the authority behind it. "Claimant" means the party that starts the proceeding, and "respondent" the party it names. 17 U.S.C. § 1501.

The short version. The Copyright Claims Board (the Board) is a three-officer tribunal inside the Copyright Office that decides small copyright disputes online, under chapter 15 of title 17. 17 U.S.C. § 1502. It is voluntary: a properly served respondent has 60 days to opt out, and if it does, the claim is dismissed without prejudice. 17 U.S.C. § 1506(i). Recovery is capped at $30,000 per proceeding, with statutory damages capped at $15,000 per timely registered work and $7,500 per work otherwise. 17 U.S.C. § 1504(e). The procedural details live in 37 C.F.R. Part 222 and the parts around it, and the Board "is not bound by the Federal Rules of Civil Procedure or the Federal Rules of Evidence." 37 C.F.R. § 222.1.

This checklist reflects the law and Board practice as of April 2025. By then claimants had filed more than 1,000 claims, but the Board had issued just over 30 final determinations; every other claim was still pending or had ended earlier, at compliance review, for lack of service, or by opt-out, withdrawal, or settlement. In March 2025 the Copyright Office opened the study of the Board that the statute requires, asking whether compliance review, service, the opt-out, and the default process should change. CASE Act Study, 90 Fed. Reg. 11626 (Mar. 10, 2025). Check for later rule changes before relying on any deadline here. The Board's own Copyright Claims Board Handbook, at ccb.gov/handbook, explains each stage in plain language and is worth reading alongside this checklist, though it cannot override the statute or the rules. 37 C.F.R. § 220.3.

For the doctrine behind each item, read The Copyright Claims Board: Small Claims Copyright Litigation Under the CASE Act. For the same process told step by step, with worked examples for both sides, see Bringing or Defending a Claim Before the Copyright Claims Board: A Practical Guide. For fill-in claim statements, an opt-out decision memo, and settlement language, use the Copyright Claims Board Toolkit: Claim Statements, Opt-Out Decisions, and Settlement Templates.

The deadline card

Print this table and fill in the actual dates the day each triggering event happens. When a deadline falls on a weekend or federal holiday it moves to the next federal workday, and an electronic filing is due by 11:59 p.m. Eastern Time. 37 C.F.R. § 220.4.

Event Deadline Who acts Source
Commence the proceeding Within 3 years after the claim accrued Claimant § 1504(b)(1)
Supply a respondent address certified as unknown 60 days after filing Claimant 37 C.F.R. § 222.2(f)
Amend a claim found noncompliant 30 days after each deficiency notice (two chances) Claimant § 1506(f)(1)(B)
Serve the respondent and file proof 90 days after the compliance notice Claimant § 1506(g)
File proof of personal service Earlier of 7 days after service or day 90 Claimant 37 C.F.R. § 222.5(b)(3)
Return a waiver of personal service 30 days after the request was sent Respondent § 1506(g)(6)(B)
File a signed waiver Earlier of 7 days after receiving it or day 90 Claimant 37 C.F.R. § 222.5(c)(5)
Second notice to respondent Within 20 days after proof of service Board § 1506(h); 37 C.F.R. § 222.4
Opt out 60 days after service or after the waiver was signed Respondent § 1506(i); 37 C.F.R. § 223.1(e)
Pay the $60 balance and register on eCCB 14 days after the Board's order Claimant pays; every party registers 37 C.F.R. § 222.7
Response and any counterclaim 30 days after the scheduling order, or 60 if service was waived Respondent 37 C.F.R. §§ 222.8(e), 222.9(e)
Response to a counterclaim 30 days after the counterclaim is found compliant Claimant 37 C.F.R. § 222.10(a)
Election after notice of a related class action 14 days after receiving notice Any party 37 C.F.R. § 223.3
Written response testimony 45 days after service of direct testimony Responding party 37 C.F.R. § 222.15(a)
Written reply testimony 21 days after service of response testimony Claimant or counterclaimant 37 C.F.R. § 222.15(a)
Request a hearing No later than 7 days after the reply deadline Any party 37 C.F.R. § 222.16(c)
Cure a missed deadline after a Board notice 30 days after the notice Either side 37 C.F.R. §§ 227.1, 228.2
Oppose a proposed default determination 30 days after the notice Respondent § 1506(u)(2)
Ask the Board to vacate a default determination 30 days after the determination Respondent 37 C.F.R. § 227.5(c)
Request reconsideration 30 days after the final determination Either side § 1506(w); 37 C.F.R. § 230.2
Request the Register's review 30 days after reconsideration is denied The party denied § 1506(x); 37 C.F.R. § 231.2
Challenge in district court 90 days after the final determination or the Register's review, whichever is later Either side 17 U.S.C. § 1508(c)(1)
Apply to confirm an unpaid award 1 year after the last of the determination, reconsideration, review, or amendment The aggrieved party § 1508(a)

Part 1: Screen the dispute for Board eligibility (claimants)

  • Match the dispute to one of the three claims the Board can hear. Infringement of an exclusive right under 17 U.S.C. § 106, a declaration of noninfringement, or a misrepresentation claim under 17 U.S.C. § 512(f) over a takedown notice or counter notice. § 1504(c)(1)-(3).
  • Strip out the claims the Board cannot hear. A claim that § 1504(c) does not list is excluded by § 1504(d)(1): removal of copyright management information under 17 U.S.C. § 1202, circumvention, moral rights, trademark, and freestanding contract claims. If the § 1202 count is the valuable one, as it can be for a photographer whose credit line was cropped off, compare Mango v. BuzzFeed, Inc., 970 F.3d 167 (2d Cir. 2020), the Board may be the wrong forum.
  • Confirm the respondent resides in the United States and is not a government entity. Claims against foreign residents and against federal or state governmental entities are excluded, § 1504(d)(3)-(4), and service may be made only within the United States. § 1506(g)(9). States are immune from copyright damages suits in court as well. Allen v. Cooper, 589 U.S. 248 (2020).
  • Make sure no court has the same claim. A claim pending in court, or already finally adjudicated, is excluded unless the court stays it so the Board can proceed. § 1504(d)(2). Going the other way, a court must stay a claim that is already pending at the Board. 17 U.S.C. § 1509(a).
  • Check the Board's public list of libraries and archives that have opted out in advance. A library or archives that qualifies under 17 U.S.C. § 108 may opt out of all proceedings, and the election covers employees acting within the scope of their employment. § 1506(aa); 37 C.F.R. § 223.2(a)(5). If you believe a listing is improper, the claim must allege facts that support that belief. 37 C.F.R. § 223.2(b)(2).
  • Run the limitations clock. The proceeding must be commenced within three years after the claim accrued. § 1504(b)(1); compare 17 U.S.C. § 507(b). Each infringing act starts its own clock under Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014), and where a discovery rule applies, a timely claim can reach damages for older conduct. Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024). Calendar the earliest plausible accrual date, not the most convenient one; the Statute of Limitations Diary Checklist shows how.
  • If the clock is about to run and you lack an address, use the safety valve. A claimant may file without the respondent's mailing address by certifying that the address is unknown and that the limitations period is likely to expire within 30 days, but the claim will not be found compliant until the address arrives, and it must arrive within 60 days. 37 C.F.R. § 222.2(c)(6), (f).
  • For a claim against a platform over material it hosts or links to, send the DMCA notice first. A claim against an online service provider that may qualify for a § 512 safe harbor is noncompliant unless you affirm that you sent a proper notice and the provider failed to act expeditiously. § 1506(f)(1)(C). Use the Filing a DMCA Takedown Notice: A Practical Checklist.
  • Count your filings against the annual cap. A claimant and its affiliates may file no more than 30 proceedings in any 12-month period, a lawyer no more than 40, and a law firm no more than 80, and every filed claim counts, including ones later found noncompliant or ended by an opt-out. Law school clinics are exempt. 37 C.F.R. § 233.2.
  • Write down the outcome you actually want. The Board can award money within the caps, record a party's agreement to stop, and declare noninfringement. It cannot issue an injunction; it can only include a cessation requirement that a party agrees to on the record. § 1504(e)(2). If you need a court order stopping an unwilling infringer, file in court.
  • Value the claim inside the caps. Total recovery may not exceed $30,000 per proceeding, exclusive of any bad-faith fee award. § 1504(e)(1)(D). The Board may not consider willfulness, and each side pays its own fees. § 1504(e)(1)(A)(ii)(III), (e)(3). Price the claim by license value, duration, and scope of use rather than by federal-court multiples. The factors courts use to set statutory damages, which apart from willfulness still matter here, are collected in 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.04, and Copyright Damages and Remedies: Statutory Damages, Profits, Injunctions, and Fees explains the court-side numbers the caps are measured against.
  • Send a demand letter first, as its own document. A short letter that identifies the work, attaches proof, proposes a license fee, and mentions both the Board and federal court resolves many disputes without a filing. Keep it out of any later service packet. See Drafting a Demand Letter: A Practical Checklist. A letter does not stop the limitations clock; only filing does. § 1504(b)(2).

Notes. The screen takes twenty minutes and saves months. A claim that fails any item above will either be dismissed at compliance review or produce a determination the claimant cannot use. If the honest answer to "will this respondent opt out?" is "almost certainly," because the claim is weak, the registration is late, or the respondent is a repeat litigant, decide now whether you are prepared to sue in court, because that is where an opt-out sends you.

Part 2: Lock down registration and ownership (claimants)

  • Confirm that a complete application, deposit, and fee are on file with the Copyright Office. A claim may be filed once the Office has received all three and has not refused registration. 17 U.S.C. § 1505(a); 37 C.F.R. § 221.1. Record the registration number and effective date, or the service request (SR) number and application date; the claim form requires them. 37 C.F.R. § 222.2(c)(7)(ii). The Copyright Registration Checklist: A Practical Checklist covers the filing itself.
  • Write down the effective date of registration. It is the day the Office received the complete application, deposit, and fee, not the day the certificate arrived. 17 U.S.C. § 410(d).
  • Test each work for timely registration under § 412. A work is timely registered if the effective date came before the infringement commenced, or within three months after first publication. 17 U.S.C. § 412. Infringement "commences" with the first act in a continuing series, so registering midway through an ongoing use does not reset the date. Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696 (9th Cir. 2008). The answer sets your statutory damages ceiling at $15,000 per work, or $7,500 per work and $15,000 per proceeding. § 1504(e)(1)(A)(ii)(I)-(II).
  • Count the works the way the Board will. Each photograph in a group registration of published or unpublished photographs is registered as a separate work, and the Office's rule says the group is not a compilation for purposes of § 504(c)(1). 37 C.F.R. § 202.4(h), (i), (r). But the parts of a compilation still count as one work for statutory damages, 17 U.S.C. § 504(c)(1), and a respondent will argue that images issued as a unit are one work, as the Second Circuit held for an album in Bryant v. Media Right Productions, Inc., 603 F.3d 135 (2d Cir. 2010).
  • Pull the certificate or the public record and check it for errors. A good-faith mistake of fact or law will not invalidate a registration, Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178 (2022), but fixing a wrong author name or publication date by supplementary registration under 37 C.F.R. § 202.6 removes an argument before anyone makes it. See U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 1802 (3d ed.). Photographers should also run the Registering a Copyright in Photographs: A Practical Checklist.
  • Plan around a pending application. The Board accepts the claim but "may not render a determination" until a certificate issues and the other side has had a chance to address it; it may hold the case in abeyance, and a refusal ends the claim without prejudice. § 1505(b). Once the case is active, you may request small claims expedited registration through the Board for a separate fee. 37 C.F.R. § 221.2.
  • Prove that you owned the right at the time of the infringement. Only "the legal or beneficial owner of the exclusive right at the time of the infringement" may bring an infringement claim. § 1504(c)(1); 17 U.S.C. § 201. A transfer requires a signed writing, 17 U.S.C. § 204(a), so locate the assignment or exclusive license now. Name any co-owners in the claim. 37 C.F.R. § 222.2(c)(7)(i).
  • Resolve work-made-for-hire questions before you file. For employee and commissioned work, authorship turns on agency principles under Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) and the categories in 17 U.S.C. § 101. The Work Made for Hire Determination Checklist: A Practical Checklist walks the test.
  • Keep the court option alive. A federal suit over a United States work requires an issued registration or a refusal, Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019); 17 U.S.C. § 411(a). If you expect an opt-out, consider special handling so the certificate exists when you need it. Compendium of U.S. Copyright Office Practices § 623 (3d ed.).

Notes. Timeliness under § 412 is the single most important fact in the whole proceeding, for both sides. It sets the claimant's cap at the Board, decides whether statutory damages and fees exist at all in court, and therefore drives the respondent's opt-out decision in Part 7.

Part 3: Build the evidence file and name the right respondent (claimants)

  • Capture every infringing use completely. Save the full page with its URL, date, and time, plus an archived copy, and write down who made each capture and how. The Board admits evidence "without application of formal rules of evidence," § 1506(o), but the Officers still weigh reliability. The Authenticating Website Evidence: A Practical Checklist sets out a capture method that holds up anywhere.
  • Preserve your original. Keep the camera raw file, layered source file, or draft history, the deposit copy, and any metadata showing creation date and authorship.
  • Gather value evidence. Collect your invoices, rate cards, stock-agency pricing, and comparable licenses, and anything showing the respondent's revenue from the use or the license fee it avoided paying.
  • Collect the paper trail. Keep demand letters and replies, takedown notices and counter notices, and any admissions in emails or posts.
  • Name the legal entity that used the work. Look up the exact name and registered agent in state business records, and check the Board's directory of designated service agents, where an entity may list up to 50 trade names and affiliates. 37 C.F.R. § 222.6(c). Name the company that used the work, not its website, its trade name alone, or its web designer.
  • List everyone who took part. The claim asks for every person or organization that participated in the infringing activity. 37 C.F.R. § 222.2(c)(7)(iii)(C). Respondents who acted together may be held jointly and severally liable, § 1504(f), but you may join several respondents only if every claim arises from the same activity or continuous course of activity. § 1504(c)(6).
  • Record where the infringement happened and where each party is. When circuits disagree, the Board applies the law of the jurisdiction with the most significant ties to the parties and conduct. § 1506(a)(2). An embedding claim illustrates why: the Ninth Circuit's server test, Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), reaffirmed in Hunley v. Instagram, LLC, 73 F.4th 1060 (9th Cir. 2023), may decide the case against a respondent in the Ninth Circuit.
  • If you cannot identify the infringer, solve that first. The Board has no subpoena power. A DMCA subpoena under § 512(h) is issued by a court clerk and does not reach internet access providers that only transmit traffic. Recording Industry Ass'n of America, Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003). See Identifying an Anonymous Defendant Online: A Practical Guide.

Part 4: Choose the claim and the track, then file (claimants)

  • Pick the claim type that fits your position.
  • Decide on the smaller claims track. If your realistic recovery is $5,000 or less, the track offers one Officer, no standard discovery, a merits conference, and no experts. 37 C.F.R. Part 226; § 1506(z). You may switch freely before service, but afterward only with the other side's consent and the Board's leave. 37 C.F.R. § 226.2. A smaller claim also caps any counterclaim at $5,000, 37 C.F.R. § 226.3, and lowers the respondent's worst case, which makes opting out less tempting.
  • Decide who will represent you. Congress meant the Board to be "accessible especially for pro se parties and those with little prior formal exposure to copyright laws." H.R. Rep. No. 116-252, at 17 (2019). You may appear yourself, through a lawyer, or through a law student who works pro bono under a supervising attorney with your written consent. § 1506(d); 37 C.F.R. § 234.1. A business may appear through an owner, partner, officer, member, or authorized employee; an employee must file written authorization signed under penalty of perjury within 30 days. 37 C.F.R. § 232.6.
  • Register as an eCCB user. You cannot file the claim or pay without an account. 37 C.F.R. § 222.2(b).
  • Complete every element of the claim form. Parties and addresses; for each work, the title, author, registration or SR number and date, and category of work under 17 U.S.C. § 102; the rights at issue, when the infringement began, who took part, why you believe it infringes, whether it continues, and where it occurred; any platform affirmation; the harm and relief sought; the smaller claims election; and the certification under penalty of perjury with a typed signature. 37 C.F.R. § 222.2(c).
  • Write the facts as facts. Use short, numbered, chronological paragraphs with dates and URLs, and cite each exhibit where it matters. "Stole my photo" is a conclusion; "reproduced and displayed the photograph as the homepage banner at [URL] from at least March 3" is a fact. The toolkit has model statements for each claim type.
  • Attach the exhibits that make the claim self-proving. The certificate, the work, the infringing use with URLs and dates, and for a § 512(f) or noninfringement claim the notice or demand at issue. 37 C.F.R. § 222.2(d).
  • Pay the $40 first installment of the $100 filing fee. 37 C.F.R. § 201.3(g). Confirm the current amount on the Board's website first.
  • Certify only what you can support. Every submission certifies that it has a proper purpose and legal and factual support. 37 C.F.R. § 232.2. Bad-faith conduct can bring a fee award of up to $5,000 and, for repeat offenders, a 12-month bar on filing. § 1506(y). Never quote a statute or case you have not read.

Part 5: Compliance review, service, and proof of service (claimants)

  • Watch eCCB and your email for the compliance notice. A Copyright Claims Attorney checks the claim against the statute and rules, including whether its allegations "clearly do not state a claim upon which relief can be granted," and accepts your facts without investigating them. 37 C.F.R. § 224.1(b), (f).
  • Fix every point in a deficiency notice within 30 days. You get two chances to amend without a new fee; a third failure, confirmed by an Officer, or a missed 30-day window, ends in dismissal without prejudice. § 1506(f)(1)(B); 37 C.F.R. § 224.1(d). The usual fixes: name the legal entity, give a usable address, identify the rights and the place of infringement, add the registration or SR number, and replace characterizations with facts.
  • Use your one free amendment before service, if you need it. After a compliance finding you may amend once as a matter of course before service, and the claim goes back through review; during the opt-out period you may not amend at all. 37 C.F.R. § 222.12(a)-(b).
  • Assemble the service packet exactly as the rules require. The Board's initial notice (downloaded from eCCB), the claim as found compliant, the opt-out form, and anything else the Board directs. Nothing else: no settlement demand, no letter about the strength of the claim, no extra exhibits. 37 C.F.R. § 222.3(b).
  • Choose a service method. Personal delivery by a nonparty adult, abode service, an authorized agent, or any method state law allows for a summons; for an entity, its registered agent, an officer, or a managing agent; and for an entity listed in the Board's directory, certified mail or the method it designated. § 1506(g)(3)-(5); 37 C.F.R. § 222.5(b)(2)(ii). Service of Process: Domestic and International Methods That Work covers the field mechanics, which track Fed. R. Civ. P. 4.
  • If you request a waiver, send it right and set a fallback date. Mail the Board's waiver form, the notice and claim, and a prepaid return envelope by first-class mail, with nothing else. 37 C.F.R. § 222.5(c)(1), (2)(xi). The respondent has 30 days to return it, and a signed waiver counts as service as of the date it was signed. § 1506(g)(6)(B). If it is not back by day 30, start personal service that week.
  • Complete service within 90 days of the compliance notice. A respondent not served in time is dismissed without prejudice, and if no one is served the whole proceeding is dismissed. § 1506(v)(1); 37 C.F.R. § 228.1.
  • File proof of service within seven days. Use the Board's form or a document with all of its information, filed by the earlier of seven days after service or day 90. 37 C.F.R. § 222.5(b)(3)(i). A late proof can justify extending the respondent's opt-out window. 37 C.F.R. § 222.5(b)(3)(ii).
  • Calendar each respondent's day 60 separately. Each respondent's clock runs from its own service or waiver date. 37 C.F.R. § 223.1(e).
  • Keep negotiating, separately and politely. Settlement talk during the opt-out window is fine in separate correspondence; using the deadline as a threat is a poor look before a tribunal that polices bad faith.
  • If a counter notice is pending, notify the platform before it restores the material. An infringement claim at the Board counts as the "action" that keeps content down under § 512(g)(2)(C) if you notify the provider's designated agent before restoration and the claim covers the material in the takedown notice. 17 U.S.C. § 1507(d). See Responding to a DMCA Takedown with a Counter-Notice: A Practical Checklist for the other side of that exchange.
  • Plan for both outcomes of day 60. If the respondent opts out, the claim is dismissed without prejudice and the time it was pending did not count against your federal limitations period. § 1504(b)(2). If it does not, be ready to pay the $60 balance within 14 days of the Board's order. 37 C.F.R. § 222.7.

Part 6: The first week after service (respondents)

  • Write down the service date and compute day 60. The 60 days run from personal service or from the date you signed a waiver. 37 C.F.R. § 223.1(e); § 1506(g)(6)(B). A day 60 that falls on a weekend or federal holiday moves to the next workday; an online opt-out is due by 11:59 p.m. Eastern Time, and a paper one must be postmarked or handed to a carrier by the deadline. The Board's second notice, which arrives later, does not restart the clock. Put the date in at least two calendars.
  • If you received a waiver request, decide whether to sign it. Signing fixes the service date as the date you sign. Waiving service does not waive the right to opt out, and a respondent who waives and stays gets 30 extra days to respond. § 1506(g)(7). Declining simply means the claimant must arrange personal service within its 90 days.
  • Find the confirmation code and keep the packet together. The code printed on the notices is required for an opt-out. 37 C.F.R. § 223.1(c)(3). Keep the envelope, the notice, the claim, and the opt-out form in one place.
  • Confirm that the proceeding is real. The notice must state that it concerns an official government proceeding and explain how to find the docket. 37 C.F.R. § 222.3(a)(11). Look up the docket number on the Board's public docket at ccb.gov, and check whether the notice says the case is a smaller claim. 37 C.F.R. § 222.3(a)(16).
  • Preserve the evidence before you change anything. Capture the pages and posts at issue, and keep the source files, license or stock receipts, communications with designers or agencies, and sales data. Taking the material down is often wise, but capture it first. The Litigation Hold and Evidence Preservation Checklist: A Practical Checklist covers the mechanics.
  • Notify any insurer that might cover the claim. Advertising injury and media liability coverage may respond, and many policies require prompt notice and give the carrier a say before you choose a forum. See the Insurance Coverage Toolkit: Placing, Tendering, and Litigating Claims.
  • Ask procedural questions, not merits questions. Copyright Claims Attorneys answer questions about procedure, 17 U.S.C. § 1503(a)(2), but no party may communicate ex parte with the Officers about the substance of a case. § 1503(f).
  • If the claimant looks like a serial bad-faith filer, say so before day 60. A respondent may request a conference about a pattern of bad-faith conduct before the opt-out deadline without waiving its right to opt out. 37 C.F.R. § 232.4(b)(2).
  • Libraries and archives: check your preemptive election. A preemptive opt-out does not cover a claim the Board found compliant and ordered served before the election took effect; for that claim, opt out using the served notice. 37 C.F.R. § 223.2(a)(6).

Part 7: Investigate the claim and decide whether to opt out (respondents)

  • Look up the registration in the Copyright Office's public records. Note the claimant named on the certificate, the effective date, the publication date, and whether it is a group registration.
  • Compare the effective date with the date your use began. If your use began before the effective date of registration (and, for a published work, the registration was not made within three months after first publication), the claimant cannot recover statutory damages or attorney's fees in court. § 412; Derek Andrew, 528 F.3d 696. That single comparison usually decides the question.
  • Trace where the material came from. A license, stock purchase, freelance designer, or client-supplied file may be a complete defense or the basis for an indemnity claim against someone else. A claim against your designer is not a permissible counterclaim at the Board, which allows counterclaims only against the claimant. § 1504(c)(4).
  • Test the defenses that fit the facts. License; fair use under 17 U.S.C. § 107 after Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023); independent creation; lack of originality; and the limitations period. Photographs used as taken to illustrate a website or article rarely qualify as fair use, Brammer v. Violent Hues Productions, LLC, 922 F.3d 255 (4th Cir. 2019); Philpot v. Independent Journal Review, 92 F.4th 252 (4th Cir. 2024), and "hardly anyone saw it" is not a defense to displaying a whole work. Bell v. Wilmott Storage Services, LLC, 12 F.4th 1065 (9th Cir. 2021). Run the Fair Use Analysis Checklist: A Practical Checklist before relying on fair use.
  • Quantify the use. How long it ran, where, whether it was commercial, what revenue it touched, and what a license would have cost.
  • Check the claimant's track record. Search the Board's docket and federal dockets for other claims by the same claimant or lawyer, and whether they sue after opt-outs.
  • Price your worst case at the Board. Up to $15,000 per timely registered work, or $7,500 per work and $15,000 total otherwise; $30,000 per proceeding; $5,000 on the smaller claims track. No willfulness finding, each side pays its own fees, and an agreement to stop can reduce the award. § 1504(e)(1)(A)(ii)(IV), (e)(3).
  • Price your worst case in court. Statutory damages of $750 to $30,000 per work, up to $150,000 if willful, 17 U.S.C. § 504(c), and willfulness includes reckless disregard. Island Software & Computer Service, Inc. v. Microsoft Corp., 413 F.3d 257 (2d Cir. 2005). Add a possible fee award under 17 U.S.C. § 505, see Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) and Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016), a jury that decides the amount, Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998), and your own defense costs. Statutory damages and fees are off the table in court if § 412 was not satisfied.
  • Estimate whether the claimant will actually sue. Does it hold an issued registration, as a court suit requires? Does it have a lawyer who files federal cases? Is the claim worth a lawyer's time without statutory damages?
  • Layer in business judgment. Consider the time your team can spend, publicity, the insurer's view, and whether the dispute concerns a practice you repeat across many pages, which may call for a court ruling with precedential value rather than a nonprecedential Board determination. § 1507(a)(3).
  • Put the decision and its reasons in writing. The toolkit's opt-out decision memo walks through these factors; a written record helps with insurers, boards, and later second-guessing.
Opting out usually fits when Staying usually fits when
Registration was not timely, so the claimant's court case lacks statutory damages and fees Registration was timely and the claimant credibly will sue in court
The claimant is unlikely to sue in federal court You have a strong defense and want a cheap, binding answer
You need a precedential ruling on a practice you repeat You want structured settlement with an Officer's help
The claim is one of many related claims best handled together You have your own counterclaim, such as under a license

Part 8: Opt out correctly, or get ready to participate (respondents)

If you opt out:

  • Use the Board's form, online or on paper. Submit the online form through eCCB with an email address for confirmation, or send the paper form by first-class mail or a carrier guaranteeing delivery within two days. 37 C.F.R. § 223.1(c).
  • Include every required element. The docket number, your name and mailing address, an affirmation that you will not appear on the claim, a certification under penalty of perjury that you are the respondent or its authorized representative, and a signature (with a typed or printed name if handwritten). 37 C.F.R. § 223.1(b).
  • Include the confirmation code. Without it, the opt-out is not complete. 37 C.F.R. § 223.1(c)(3).
  • Opt out separately for each respondent. A parent's opt-out does not cover a separately named subsidiary or an individual owner. 37 C.F.R. § 223.1(g).
  • File early, not at 11:58 p.m. on day 60. Keep the Board's confirmation; the Board will notify all parties. 37 C.F.R. § 223.1(h).
  • Do not rely on a service defect. An opt-out is effective even if service was improper, 37 C.F.R. § 223.1(d), and it costs nothing. An extension of the 60 days is available only in exceptional circumstances and must be requested through a Copyright Claims Attorney. 37 C.F.R. § 223.1(f).
  • Know what the opt-out does and does not do. The claim is dismissed without prejudice, and you are not bound by anything the Board does afterward. § 1507(f). The claimant may not refile the same acts and theories against you at the Board unless you agree, 37 C.F.R. § 223.1(i), but the opt-out does not cover claims based on different acts or theories, 37 C.F.R. § 223.1(j), and the claimant may still sue in court with its limitations clock tolled. § 1504(b)(2).
  • Keep the hold in place and prepare for a complaint. Answering a Federal Complaint: Denials, Affirmative Defenses, Counterclaims, and Judgment on the Pleadings covers what comes next if one arrives.

If you stay:

  • Register on eCCB within 14 days of the Board's order. A respondent who does not register risks default proceedings. 37 C.F.R. § 222.7(a)(2), (b)(2).
  • Calendar the response. It is due 30 days after the scheduling order issues, or 60 days if you waived personal service. 37 C.F.R. § 222.8(e).
  • Prepare the response on the Board's form. It must dispute any facts you contest, explain in detail why there was no infringement, state every defense (including any exception in §§ 107 through 122), include any counterclaims, and end with a certification under penalty of perjury. 37 C.F.R. § 222.8(b).
  • Decide on counterclaims now. Counterclaims are due with the response unless the Board allows a later filing for good cause. 37 C.F.R. § 222.9(e). They may run only against the claimant and must arise from the same transaction or under an agreement about it, such as a license, that could affect the claimant's relief. § 1504(c)(4). Nothing is lost by holding one back, because there are no compulsory counterclaims at the Board. § 1507(e).
  • Decide whether you will agree to stop. A respondent may state that, if found liable, it will cease or mitigate; the Board considers that only on damages. 37 C.F.R. § 222.15(b)(3)(v); § 1504(e)(1)(A)(ii)(IV).

Part 9: The active proceeding, settlement, and missed deadlines (both sides)

  • Claimant: pay the $60 balance within 14 days of the Board's order. A missed payment draws one reminder and 14 more days, then dismissal without prejudice. 37 C.F.R. § 222.7(c).
  • Calendar every date in the scheduling order the day it issues. It sets the response, the pre-discovery conference, discovery deadlines, the post-discovery conference, and written testimony. 37 C.F.R. § 222.11(b). Ask to change a date before it passes, not after. 37 C.F.R. § 222.11(d)(2).
  • Use the request tiers, not motions. The statute bars formal motion practice, § 1506(m). Routine requests go on a 4,000-character form with seven days to respond; weightier ones, such as amendments, additional discovery, experts, and sanctions, on a 10,000-character form with 14 days; party statements are uploaded documents. 37 C.F.R. § 220.5.
  • Answer the standard discovery fully and on time. The Board's standard interrogatories and document requests apply to everyone, including self-represented parties; there are no depositions, and anything more needs leave. 37 C.F.R. Part 225. A party that withholds discovery risks an adverse inference on disputed facts. § 1506(n)(3). Confidential financial data can go under the standard protective order. 37 C.F.R. § 222.19.
  • Build written testimony that stands on its own. Documentary evidence with a list explaining how each document bears on the claim; sworn witness statements in numbered paragraphs limited to personal knowledge; and a party statement of no more than 12 pages, with a reply statement limited to seven. 37 C.F.R. § 222.15. The declaration language of 28 U.S.C. § 1746 is a sound model for the attestation.
  • Claimant: make the damages election before the final determination. Actual damages and profits, statutory damages, or none at all; the election may change until the determination. § 1504(e)(1)(B); 37 C.F.R. § 222.15(b)(3)(iv).
  • Request a hearing if live questioning would help you. Ask in the party statement or no later than seven days after the reply deadline; the Board decides whether to hold one. 37 C.F.R. § 222.16(c).
  • Use the Board's settlement tools. The parties may request a settlement conference with an Officer who will not decide the case; each side emails a position statement of up to five pages three days ahead; the Board may stay the case 30 days; and the parties may file a joint request to dismiss and ask the Board to adopt their terms in a final determination, which makes the terms enforceable under § 1508. § 1506(r); 37 C.F.R. § 222.18. Run the Settlement Agreement Checklist: A Practical Checklist on the written deal.
  • Claimant: never withdraw casually. A withdrawal before the response is without prejudice, but one after the response produces a final determination dismissing the claim with prejudice unless the Board or a stipulation says otherwise. § 1506(q)(1); 37 C.F.R. § 222.17(b)-(c).
  • If a deadline slips, answer the Board's notice within 30 days. Respondents get notices and chances to cure before default proceedings, and even a proposed default determination allows 30 days to submit evidence. 37 C.F.R. Part 227; § 1506(u). Claimants get the mirror-image notice, but their failure to prosecute ends in dismissal with prejudice, possibly with a fee award. § 1506(v)(2); 37 C.F.R. § 228.2.
  • Watch for related class actions. A party who learns it is a class member in a related class action must opt out of the class or seek dismissal of the Board case within 14 days. 37 C.F.R. § 223.3.

Part 10: After the final determination (both sides)

  • Calendar every review deadline on the day the determination issues. Reconsideration within 30 days, in up to 12 pages, for a clear error of law or fact material to the outcome or a technical mistake, and without new evidence. § 1506(w); 37 C.F.R. Part 230.
  • Seek the Register's review only after reconsideration is denied. The request is due within 30 days of the denial, is limited to whether the Board abused its discretion in denying reconsideration, and requires a fee. § 1506(x); 37 C.F.R. Part 231.
  • Challenge in district court only on the statutory grounds, within 90 days. Fraud, corruption, misrepresentation, or other misconduct; action beyond the Board's authority; or, for a default or failure-to-prosecute determination, excusable neglect. § 1508(c)(1). Courts generally measure excusable neglect by prejudice, the length of the delay, the reason for it, and good faith, Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), the test also applied under Fed. R. Civ. P. 60(b), and a court reviewing a Board default would likely use it. There is no other route to court: Board actions are reviewable only under § 1508(c). § 1503(g).
  • Respondent: pay and comply on time. A court asked to confirm an unpaid award "shall grant such order" and must charge the noncomplying party the winner's reasonable expenses, including attorney's fees. § 1508(a).
  • Claimant: confirm an unpaid award within one year. Request a certified copy of the determination and pay the fee, 37 C.F.R. § 229.2; file the application with the declaration § 1508(b)(2) requires; and give notice to all parties as for a motion. § 1508(b)(1). The resulting judgment can be registered in other districts under 28 U.S.C. § 1963 and enforced by execution under Fed. R. Civ. P. 69.
  • Know what the determination is worth. It precludes the parties from relitigating the claims and counterclaims decided, but it creates no issue preclusion for other claims and cannot be cited as precedent. § 1507(a). That is far narrower than ordinary preclusion doctrine. Compare Restatement (Second) of Judgments §§ 17, 27 (1982).

Frequently asked questions

Does the 60-day clock start when the Board's second notice arrives? No. It runs from the date of service, or from the date a waiver of service was signed. 37 C.F.R. § 223.1(e). The second notice is a reminder, not a restart.

We settled during the opt-out window. What do we file? The claimant files a short written request to withdraw. Before a response, the Board dismisses without prejudice unless all parties file a written stipulation for dismissal with prejudice. 37 C.F.R. § 222.17(a)-(b). The settlement agreement's release, not the Board's dismissal order, should do the real work of protecting the respondent from a later suit.

Does opting out cost anything or admit anything? There is no fee, and an opt-out concedes nothing about the merits. It only ends the Board proceeding; the claimant keeps every court remedy it had, with its limitations clock tolled while the Board claim was pending. § 1504(b)(2).

Can a claimant who is already in court move the case to the Board? Only if the court stays its case so the Board can proceed, § 1504(d)(2), or refers the case to the Board with the parties' consent. § 1509(b).

What happens if the claimant never files proof of service? The respondent is dismissed without prejudice once the 90 days run, and the case never becomes active. § 1506(v)(1). A respondent who has actually been served should still calendar day 60, because proof filed within the 90 days makes the case active if no opt-out arrives.

Practical takeaways

  • Fill in the deadline card the day each triggering event happens, and keep it with the file.
  • Claimants: register (or at least apply) first, name the legal entity, write facts rather than adjectives, serve a clean packet, and file proof within seven days.
  • Respondents: count 60 days from service, preserve before you take anything down, compare the two forums on paper, and opt out only with the Board's form and the confirmation code.
  • Timely registration under § 412 drives everything from the claimant's cap to the respondent's opt-out decision.
  • In an active case, the Board's forms and deadlines are mandatory; ask for more time before a deadline, never after.
  • After a determination, the review windows are 30, 30, and 90 days, and confirmation of an unpaid award must come within a year.

This document is general information, not legal advice for any particular situation; the law changes, and the facts matter.

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