Copyright Infringement Claim Evaluation Checklist: A Practical Checklist

Summary. This checklist screens a copyright infringement claim from either side, in the order a court will test it. It starts with intake and the exact versions of the two works, then works through ownership and standing, registration timing and its effect on remedies, the protectability of the claimant's work, copying in fact through access and probative or striking similarity, and filtration of unprotectable material before comparison under the governing circuit's test. Medium-specific checks cover music, literary and audiovisual works, games, visual art and photographs, and software. Later parts address defenses and limitations, remedies and case value, forum and pleading, evidence preservation and pre-suit letters, and the first thirty days for an accused party. It closes with a scoring matrix, a table of key authorities, answers to common questions, and practical takeaways.

A client forwards two links and one sentence: "They copied my work." The next week a different client forwards a demand letter that says the same thing about them. The method for both is the same, because a copyright claim is tested in a fixed order, and most claims that fail do so on facts that were knowable on the first day: the work was never registered, the "assignment" was a handshake, nothing connects the work to the people who made the accused one, or everything the two works share belongs to everyone. This checklist runs that test before anyone spends real money.

The short answer

A claimant must prove ownership of a valid copyright and copying of constituent elements of the work that are original, Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991). Copying has two parts that must be kept apart. Copying in fact asks whether the defendant actually used the claimant's work, and it is proved by direct evidence, by access plus similarities that suggest copying (probative similarity), or by similarity so striking that copying is the only plausible explanation. Unlawful appropriation asks whether what was taken was protectable expression in a substantial amount, judged after ideas, facts, stock elements, and borrowed material are filtered out.

Two procedural rules sit on top of the merits. A United States work must be registered, or refused registration, before suit, Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019), and the registration date decides whether statutory damages and attorney's fees are available at all, 17 U.S.C. § 412. In practice three questions predict most outcomes: can access be proved with documents rather than inference, what remains after filtration, and what can the claimant realistically recover compared with what the case will cost.

How to use this checklist

Work Parts 1 to 10 in order for any new matter, from either side. Parts 11 to 14 cover defenses, case value, forum, and pre-suit steps; Part 15 is the accused party's first thirty days; Part 16 turns the answers into a score. Each item is an action, followed by a short note on why it matters and the authority behind it. Items marked Defense check are the questions an accused party should press on the same issue.

For the doctrine behind the items, read Proving Copyright Infringement: Access, Substantial Similarity, and the Tests Courts Actually Use. For the litigation sequence from complaint to verdict, see Litigating Substantial Similarity in a Copyright Case: A Practical Guide. The charts, filtration memoranda, and expert report outlines that several items call for are in the Copyright Infringement Litigation Toolkit: Similarity Charts, Expert Reports, and Filtration Analyses.

Part 1: Intake: pin down the two works, the versions, and the dates

• Get both works themselves, not descriptions of them. Collect the claimant's work in the form that was registered and the accused work in the form that was distributed: files, copies, recordings, builds, and screenshots with URLs and capture dates. Courts compare the works, and on a motion to dismiss "the works themselves supersede and control contrary descriptions of them," Peter F. Gaito Architecture, LLC v. Simone Development Corp., 602 F.3d 57 (2d Cir. 2010). A client's list of similarities is a starting point, never evidence.
• Build a dated timeline. Record when each work was created, when each was first published, when the accused activity began, and when the claimant first learned of it. The timeline drives access (Part 6), registration remedies (Part 3), and limitations (Part 11), and it becomes the first exhibit in most expert reports.
• Identify the version of the claimant's work that counts. The registration covers what was deposited. For a musical composition registered under the 1909 Act, the deposit copy defines the work, so the comparison is to the sheet music rather than the famous recording, Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc); Structured Asset Sales, LLC v. Sheeran, 120 F.4th 1066 (2d Cir. 2024). For software, find the registered release: a claimant that cannot produce the version it registered may be unable to prove what was copied, Airframe Systems, Inc. v. L-3 Communications Corp., 658 F.3d 100 (1st Cir. 2011).
• Identify every version of the accused work. Drafts, editions, releases, regional cuts, and updates can differ in what they took, and only some of them may fall inside the limitations period.
• State the theory in one sentence. Say what was copied (literal text, code, notes, or images, or nonliteral structure, sequence, and arrangement) and which exclusive right under 17 U.S.C. § 106 the defendant exercised: reproduction, preparation of a derivative work, distribution, public performance, or public display. A theory that cannot be stated in one sentence rarely survives a motion to dismiss.
• List every potential defendant and its role. Creators, producers, publishers, labels, studios, distributors, retailers, and platforms can all be direct infringers. Others may be liable for inducing infringement, Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), or for contributory or vicarious infringement, Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996). A platform that hosts user uploads may qualify for a safe harbor under 17 U.S.C. § 512.
• Flag defendants who cannot be sued for damages in the usual way. States and state universities are immune from copyright damages suits, Allen v. Cooper, 589 U.S. 248 (2020), although prospective injunctive relief against state officials remains available. Infringement by or for the United States, including by an authorized contractor, is remedied by an action against the government in the Court of Federal Claims, 28 U.S.C. § 1498(b).
• Run conflicts before learning the facts in detail. Creative industries are small, and the producer, label, publisher, or studio on the other side may already be a client.
• Read every agreement between the parties. Licenses, submission releases, nondisclosure agreements, development deals, employment and contractor agreements, and earlier settlements may supply a defense (a license, express or implied from conduct, Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990)), turn the dispute into a contract claim about the license's scope, or require arbitration or a particular forum.

Notes. A complete intake file holds four things: the works, the timeline, the agreements, and a list of the people involved. Everything else in this checklist is analysis of those four things.

Part 2: Ownership and standing

• Identify the author of each element in suit. Ownership vests initially in the author, 17 U.S.C. § 201. An employee's work within the scope of employment is a work made for hire owned by the employer, and whether a hired party is an employee turns on common-law agency factors, Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). A commissioned work is a work made for hire only if it falls within the categories listed in 17 U.S.C. § 101 and the parties signed a written agreement saying so. The Work Made for Hire Determination Checklist: A Practical Checklist walks through the test.
• Trace every transfer to a signed writing. A transfer of ownership, including an exclusive license, is not valid without a writing signed by the owner of the rights conveyed, 17 U.S.C. § 204(a). Pull each assignment, check signatures, dates, and scope, and check recordation with the Copyright Office, which gives constructive notice and decides priority between conflicting transfers, 17 U.S.C. § 205.
• Confirm that the claimant owns the right that was infringed. Only the legal or beneficial owner of an exclusive right may sue for its infringement, 17 U.S.C. § 501(b). An exclusive licensee may sue within the scope of its license; a nonexclusive licensee may not. An author who assigned the copyright in exchange for royalties keeps a beneficial interest that supports standing.
• If the claim was acquired by assignment, confirm that an exclusive right came with it. The assignee of a bare right to sue for accrued infringements, without any exclusive right, lacks standing, Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881 (9th Cir. 2005) (en banc). When ownership changed hands after the infringement began, check whether the transfer expressly assigned accrued claims.
• Ask whether the accused party is a co-owner. A co-owner cannot infringe a copyright it co-owns; its obligation to the other co-owners is to account for profits (Nimmer on Copyright ch. 6). Joint authorship takes more than a contribution: in the Ninth Circuit it requires objective manifestations of a shared intent to be coauthors and, usually, control over the work, Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000).
• Check whether ownership is the real dispute, and when it arose. A claim of co-ownership accrues once, when the claimant's ownership is plainly and expressly repudiated, and it is barred three years later, Merchant v. Levy, 92 F.3d 51 (2d Cir. 1996). Where ownership is the gravamen of an infringement claim and the ownership claim is time-barred, the infringement claim fails with it, Seven Arts Filmed Entertainment Ltd. v. Content Media Corp., 733 F.3d 1251 (9th Cir. 2013).
• For works made with generative AI, confirm the human contribution. Copyright requires human authorship, Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir. 2025), so machine-generated material cannot support a claim, and AI-assisted works are protected only in their human-authored elements. See the AI-Assisted Work Copyright Registration Checklist: A Practical Checklist.
• Defense check: Ask for the full chain of title in the first round of discovery and test each link: signatures, dates, the scope of each grant, and whether any grant was terminated or has reverted. The Copyright Licensing and Clearance Toolkit: Permissions, Rights, and Chain of Title has forms for the review.

Notes. Claims fail at this step more often than anyone expects, and almost always because the paper was never signed. Fixing title is cheap before suit and expensive after a motion.

Part 3: Registration, timing, and what they do to remedies

• Decide whether registration is a precondition to suit. For a "United States work" (defined in 17 U.S.C. § 101), no civil action for infringement may be instituted until registration has been made or refused, 17 U.S.C. § 411(a), and registration is made when the Copyright Office acts on the application, not when it is filed, Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019). The requirement is a precondition to suit rather than a limit on the court's jurisdiction, Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010), but courts enforce it and dismiss premature complaints. Foreign works are exempt from § 411(a), though not from § 412.
• If the work is unregistered, file now and request special handling. Special handling moves an application from a queue measured in months to one measured in days, for the added fee set in 37 C.F.R. § 201.3. If the Office refuses registration, the claimant may still sue after serving notice and a copy of the complaint on the Register of Copyrights, who may join the case on the issue of registrability, § 411(a). The Copyright Registration Checklist: A Practical Checklist covers the application itself.
• Confirm that the registration covers what was copied. A registration for a derivative work or compilation covers only the material the claimant contributed, 17 U.S.C. § 103. Compare the application's authorship statement and its "material excluded" and "new material included" entries with the elements in suit, and confirm that the deposit contains them. Copying of material outside the registration is not actionable until that material is registered.
• Audit the application for errors. A registration containing inaccurate information still supports suit unless the applicant included the inaccuracy knowing it was inaccurate and the Register would have refused registration had the Register known, 17 U.S.C. § 411(b). Knowledge means actual knowledge (or willful blindness), so a good-faith mistake of fact or law does not invalidate the registration, Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178 (2022). If invalidity is asserted, the court must ask the Register whether the inaccuracy would have mattered. Claimants should correct known errors by supplementary registration under 17 U.S.C. § 408(d) and 37 C.F.R. § 202.6 before the defense finds them.
• Apply § 412 to each work and each defendant. Statutory damages and attorney's fees are unavailable for infringement of an unpublished work that began before registration, or for infringement of a published work that began after first publication and before registration, unless the work was registered within three months after first publication, 17 U.S.C. § 412. Courts generally treat a defendant's later infringing acts of the same kind as part of the infringement that commenced before registration, so continuing sales do not revive statutory damages. A preregistered work keeps eligibility if registered within the earlier of three months after first publication or one month after the owner learned of the infringement.
• Check whether the certificate carries the presumption of validity. A certificate made before or within five years after first publication is prima facie evidence of the copyright's validity and of the facts stated in it, 17 U.S.C. § 410(c), which puts on the defendant the burden of rebutting originality or ownership, Fonar Corp. v. Domenick, 105 F.3d 99 (2d Cir. 1997); United Fabrics International, Inc. v. C&J Wear, Inc., 630 F.3d 1255 (9th Cir. 2011).
• Order certified copies of the registration record and the deposit. Under the Copyright Office's rules in 37 C.F.R. Part 201, a litigant can obtain a certified copy of a deposit for use in actual or prospective litigation by submitting the Office's litigation statement. Do this early: the deposit, not the client's current file, is what the court will compare.
• Defense check: Search the public catalog for every work in suit, compare each effective date of registration with your first allegedly infringing act, and request the deposit. A late registration takes statutory damages and fees off the table, and a registration that does not cover the material in suit can end the case.

Notes. A claimant who registered after the infringement began can usually still sue, but recovers only actual damages and the infringer's profits and faces fee exposure without a matching fee opportunity. Price that asymmetry before anything else; the remedies are explained in Copyright Damages and Remedies: Statutory Damages, Profits, Injunctions, and Fees.

Part 4: How much of the claimant's work does copyright protect?

• Write down the claimant's creative choices. Originality requires independent creation and "at least some minimal degree of creativity," and the bar is low, Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991); photographs qualify on the strength of choices about pose, light, and arrangement, Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). Ask the creator to explain, element by element, what they chose and why. The answers become the protectable-elements list in Part 8.
• Subtract what the claimant did not create. Material from the public domain, from third parties, from licensed libraries and stock services, from open-source code, or from an AI system is not the claimant's to assert, although the claimant's selection, arrangement, and modification of that material may be, Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127 (2d Cir. 2003).
• Separate ideas, systems, and methods from expression. Protection never extends to any "idea, procedure, process, system, method of operation, concept, principle, or discovery," 17 U.S.C. § 102(b); Baker v. Selden, 101 U.S. 99 (1879). A sequence of yoga poses is a system, however carefully selected, Bikram's Yoga College of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032 (9th Cir. 2015).
• Separate facts, including facts the work asserts. Facts are discovered rather than created, and a historical theory is free to all, Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir. 1980). Elements a work presents as fact are treated as fact, even if the author later says they were invented, Corbello v. Valli, 974 F.3d 965 (9th Cir. 2020).
• Flag words, short phrases, titles, and slogans. They are not registrable, 37 C.F.R. § 202.1, and courts treat them as unprotectable unless they belong to a larger protected passage. Ask whether the claim rests on anything longer.
• Test merger. When an idea can be expressed in only one way or a handful of ways, the expression merges with the idea and is free, Morrissey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir. 1967) (sweepstakes rules); Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir. 1971) (a jeweled bee pin).
• Test scènes à faire. Stock elements that follow from a subject or genre are filtered out, Walker v. Time Life Films, Inc., 784 F.2d 44 (2d Cir. 1986), and so are features dictated by function, compatibility, or industry convention in software and product design, Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992).
• For useful articles, apply the separability test. A design feature of a useful article is protected only if it can be perceived as art separate from the article and would qualify as a pictorial, graphic, or sculptural work on its own, Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405 (2017).
• For compilations and databases, claim only the selection, coordination, and arrangement. The facts in a compilation are free; an original selection or arrangement is not, Kregos v. Associated Press, 937 F.2d 700 (2d Cir. 1991); CCC Information Services, Inc. v. Maclean Hunter Market Reports, Inc., 44 F.3d 61 (2d Cir. 1994).
• For buildings and house plans, expect thin protection. The overall form and the arrangement of spaces are protectable, but standard features, code requirements, and style conventions are filtered out, Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95 (2d Cir. 2014); Intervest Construction, Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914 (11th Cir. 2008); Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093 (7th Cir. 2017). Pictures and photographs of a constructed building visible from a public place never infringe the architectural work, 17 U.S.C. § 120(a).
• For characters, test delineation. In the Ninth Circuit a character is protected apart from any particular story only if it has physical as well as conceptual qualities, is sufficiently delineated to be recognizable wherever it appears, and is especially distinctive, DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015); Daniels v. Walt Disney Co., 958 F.3d 767 (9th Cir. 2020).
• Decide whether the copyright is broad or thin. Where the range of possible expression is narrow, protection is thin and only virtually identical copying infringes, Mattel, Inc. v. MGA Entertainment, Inc., 616 F.3d 904 (9th Cir. 2010); Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003); Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994). A thin copyright still wins against a near-exact copy; it loses against a work that merely resembles it.
• Defense check: Write the subtraction memo now, element by element, with a source for each filtered item. The side with the more disciplined filtration usually wins the motion.

Notes. Nothing in this Part asks whether the works are similar. It asks what the claimant owns, which is the question that decides most motions. The treatment of each doctrine is at 4 Nimmer on Copyright § 13.03[B] and in Patry on Copyright ch. 9.

Part 5: Copying in fact: look for direct evidence first

• Search for admissions. Emails, texts, chat logs, social media posts, interviews, liner notes, and pitch decks sometimes say "inspired by," "like the demo," or "make it look like theirs." Collect what is public now and list what discovery should target.
• Look for fingerprints. Shared errors, misspellings, planted trap entries, watermarks, metadata, embedded file names, identical dead code, and comments naming the claimant's product prove copying in a way that resemblance never can. In software, version control history often supplies the direct evidence by itself.
• Check for wholesale use of the entire work. When the defendant performed, reproduced, or displayed the whole work (a bar playing a song, a website displaying a full photograph), direct evidence of copying makes the substantial similarity analysis unnecessary, Range Road Music, Inc. v. East Coast Foods, Inc., 668 F.3d 1148 (9th Cir. 2012); Bell v. Wilmott Storage Services, LLC, 12 F.4th 1065 (9th Cir. 2021).
• Check whether copyright management information was removed or altered. Cropping out a watermark, credit line, or license notice can support a separate claim under 17 U.S.C. § 1202, with statutory damages for each violation under 17 U.S.C. § 1203.
• Defense check: Collect the creation record before anyone asks for it: drafts, sketches, session files, commit histories, reference folders, and the metadata that dates them. Independent creation defeats copying in fact, and the record is either the defendant's best evidence or the claimant's spoliation motion.

Part 6: Access: a reasonable possibility, documented

• Map every route from the work to the people who made the accused work. Access means a reasonable opportunity to view or hear the work, shown by a chain of events linking the work to the defendant or by wide dissemination, Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000). A bare possibility built on speculation is not enough, Jason v. Fonda, 698 F.2d 966 (9th Cir. 1982); Moore v. Columbia Pictures Industries, Inc., 972 F.2d 939 (8th Cir. 1992).
• Require a link to the creators, not just to the company. Sending a demo to a label or a manuscript to a studio is not access by everyone who works there, Jorgensen v. Epic/Sony Records, 351 F.3d 46 (2d Cir. 2003); Jones v. Blige, 558 F.3d 485 (6th Cir. 2009); Loomis v. Cornish, 836 F.3d 991 (9th Cir. 2016); Towler v. Sayles, 76 F.3d 579 (4th Cir. 1996); Armour v. Knowles, 512 F.3d 147 (5th Cir. 2007). A specific intermediary with a working relationship to the accused creator can be enough, Gaste v. Kaiserman, 863 F.2d 1061 (2d Cir. 1988), and so can evidence of how an office routinely handled what it received, Bouchat v. Baltimore Ravens, Inc., 241 F.3d 350 (4th Cir. 2001).
• Check the dates. Access after the accused work was created is not access. Pin down the defendant's creation dates as early as possible; they often decide this Part.
• For online works, measure actual reach. Posting on a public platform is not wide dissemination: Instagram posts with a few dozen likes did not establish access in Woodland v. Hill, 136 F.4th 1199 (9th Cir. 2025), and designs sold at county fairs and shown on a slow-loading website did not in Art Attacks Ink, LLC v. MGA Entertainment Inc., 581 F.3d 1138 (9th Cir. 2009). Pull views, plays, followers, downloads, shares, and search rankings for the period before the accused work was made.
• For published works, quantify distribution. Collect sales, airplay, chart history, print runs, and the regions where the work circulated. A hit supports access by dissemination; modest regional sales may establish only a bare possibility, Jason v. Fonda, 698 F.2d 966 (9th Cir. 1982).
• Preserve the access evidence now. Server and streaming logs for private links, email tracking data, submission portal records, CRM entries, and dated captures of web pages disappear on routine retention schedules. A preservation letter to a third party is cheap; a subpoena served a year later may find nothing.
• Do not count on access to lower the similarity bar. The Ninth Circuit abandoned the inverse ratio rule, so strong access never reduces the similarity a claimant must prove, Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc), and the Second Circuit rejected the rule decades ago, Arc Music Corp. v. Lee, 296 F.2d 186 (2d Cir. 1961).
• Defense check: Identify who created the accused work, when, and what they had seen or heard. A documented submission policy that kept unsolicited material away from creators, or a clean-room process for software, answers access directly. Access doctrine is collected at 4 Nimmer on Copyright § 13.02.

Part 7: Probative and striking similarity

• List every similarity, protectable or not. At the copying-in-fact step unprotectable similarities count: shared errors, the same public domain source used in the same idiosyncratic way, the same unusual sequence of events. Courts call this probative similarity to keep it apart from substantial similarity of protected expression, Laureyssens v. Idea Group, Inc., 964 F.2d 131 (2d Cir. 1992); Repp v. Webber, 132 F.3d 882 (2d Cir. 1997).
• Rank the similarities by how improbable coincidence would be. One shared error outweighs twenty genre conventions. Note beside each item whether it also appears in earlier works.
• Search for a common source. If both works borrow from the same earlier work, the similarity proves nothing about copying from each other. A prior-art search (earlier songs, stock images, standard plots, open-source libraries) is the cheapest way to find out before the other side does.
• If access cannot be shown, test striking similarity honestly. The similarity must be of a kind that precludes any explanation other than copying, and the claimant's expert must address independent creation, coincidence, and a common source, Selle v. Gibb, 741 F.2d 896 (7th Cir. 1984). Striking similarity can rescue a thin access case, Repp v. Webber, 132 F.3d 882 (2d Cir. 1997), and occasionally replaces proof of access entirely, Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167 (7th Cir. 1997).
• Remember that intent does not matter to liability. Subconscious copying infringes, Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (S.D.N.Y. 1976); ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988 (2d Cir. 1983). Intent matters to willfulness and to the size of statutory damages.
• Defense check: Present independent creation as evidence, not argument: dated drafts, witnesses to the creative process, and the earlier works the creators actually used.

Part 8: Filtration: build the protectable-elements list

• Turn the similarity list into a chart. For each shared element, record whether it is protectable and, if not, why (idea, fact, merger, scènes à faire, public domain, third-party material, functional constraint, short phrase), with a source. The toolkit's similarity and filtration chart is built for this step.
• Test the combination before discarding the parts. An original selection and arrangement of unprotectable elements can be protected, and copying it can infringe, Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995); Softel, Inc. v. Dragon Medical & Scientific Communications, Inc., 118 F.3d 955 (2d Cir. 1997); Hanagami v. Epic Games, Inc., 85 F.4th 931 (9th Cir. 2023). The claimant must identify which elements are combined and how, Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc), and a combination of commonplace elements that is itself commonplace is not protected, Gray v. Hudson, 28 F.4th 87 (9th Cir. 2022); Structured Asset Sales, LLC v. Sheeran, 120 F.4th 1066 (2d Cir. 2024).
• Weigh quality as well as quantity. A small taking can matter if it is the heart of the work, as the Supreme Court said of a few hundred words from a presidential memoir in a fair use case, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), and many fragments copied from across a long-running series can add up to substantial similarity, Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132 (2d Cir. 1998). Differences elsewhere do not excuse what was taken: "no plagiarist can excuse the wrong by showing how much of his work he did not pirate," Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir. 1936).
• Test de minimis. Copying that is trivial in amount and not recognizable to the ordinary observer is not actionable, Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998); a recognizable artwork used as set decoration for a cumulative 27 seconds is not trivial, Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997). The question is how much was taken, not how many people saw it, Bell v. Wilmott Storage Services, LLC, 12 F.4th 1065 (9th Cir. 2021).
• For sound recordings, ask whether the actual sounds were copied. The recording copyright reaches duplication of the recorded sounds, not imitation of them, 17 U.S.C. § 114(b). Short samples are judged under the ordinary de minimis rule in most circuits, VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016), but the Sixth Circuit treats any unlicensed sampling of a recording as infringement, Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).
• Defense check: Do not over-filter. Courts reverse decisions that break a work into pieces and ignore how the pieces were put together, Hanagami v. Epic Games, Inc., 85 F.4th 931 (9th Cir. 2023); Softel, Inc. v. Dragon Medical & Scientific Communications, Inc., 118 F.3d 955 (2d Cir. 1997). Concede the arrangement question if you must, and win on what the arrangement actually shares.

Notes. Filtration is where claimants overreach and defendants overcorrect. A claimant's list of fifty similarities usually shrinks to five after honest filtration; a defendant's argument that nothing survives usually ignores the combination. The court's job, and the expert's, is to find the residue and measure it.

Part 9: Unlawful appropriation: apply the governing circuit's test

• List every district where suit could be filed and the test each would apply. Venue lies where a defendant or its agent resides or may be found, 28 U.S.C. § 1400(a), which in practice tracks personal jurisdiction. The circuit decides who applies the test, what experts may say, and how early the case can end.
• Second Circuit. Ordinary observer, sharpened to a "more discerning" observer when the work contains unprotectable elements, while still comparing total concept and feel, Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960); Boisson v. Banian, Ltd., 273 F.3d 262 (2d Cir. 2001). Dismissal on the pleadings is available when the works are before the court and no reasonable jury could find them substantially similar, Peter F. Gaito Architecture, LLC v. Simone Development Corp., 602 F.3d 57 (2d Cir. 2010); Abdin v. CBS Broadcasting Inc., 971 F.3d 57 (2d Cir. 2020), and so is summary judgment, Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95 (2d Cir. 2014).
• Ninth and Eighth Circuits. An objective, filtered, expert-assisted extrinsic test and a subjective intrinsic test reserved for the jury, Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977); Shaw v. Lindheim, 919 F.2d 1353 (9th Cir. 1990); Cavalier v. Random House, Inc., 297 F.3d 815 (9th Cir. 2002); Hartman v. Hallmark Cards, Inc., 833 F.2d 117 (8th Cir. 1987). Failing the extrinsic test ends the case, Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042 (9th Cir. 1994); Funky Films, Inc. v. Time Warner Entertainment Co., 462 F.3d 1072 (9th Cir. 2006); Rentmeester v. Nike, Inc., 883 F.3d 1111 (9th Cir. 2018), but a court may not dissect a work into unprotectable pieces and ignore their arrangement, Hanagami v. Epic Games, Inc., 85 F.4th 931 (9th Cir. 2023).
• Sixth Circuit. Filter out unprotectable elements, then compare from the ordinary observer's viewpoint, or from the intended audience's if that audience has specialized expertise, Kohus v. Mariol, 328 F.3d 848 (6th Cir. 2003); Stromback v. New Line Cinema, 384 F.3d 283 (6th Cir. 2004).
• Fourth Circuit. Extrinsic and intrinsic steps, with the intrinsic step judged by the work's intended audience, Dawson v. Hinshaw Music Inc., 905 F.2d 731 (4th Cir. 1990); Lyons Partnership, L.P. v. Morris Costumes, Inc., 243 F.3d 789 (4th Cir. 2001); Copeland v. Bieber, 789 F.3d 484 (4th Cir. 2015).
• Tenth Circuit. Abstraction-filtration-comparison, for software and for other works, Gates Rubber Co. v. Bando Chemical Industries, Ltd., 9 F.3d 823 (10th Cir. 1993); Country Kids 'N City Slicks, Inc. v. Sheen, 77 F.3d 1280 (10th Cir. 1996); Blehm v. Jacobs, 702 F.3d 1193 (10th Cir. 2012); Craft Smith, LLC v. EC Design, LLC, 969 F.3d 1092 (10th Cir. 2020).
• Eleventh Circuit. Filtration with close attention to compilations and thin copyright, Intervest Construction, Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914 (11th Cir. 2008); Herzog v. Castle Rock Entertainment, 193 F.3d 1241 (11th Cir. 1999); Beal v. Paramount Pictures Corp., 20 F.3d 454 (11th Cir. 1994); Corwin v. Walt Disney Co., 475 F.3d 1239 (11th Cir. 2007); for software, filtration applies to literal as well as nonliteral copying, Bateman v. Mnemonics, Inc., 79 F.3d 1532 (11th Cir. 1996).
• First, Third, Fifth, Seventh, and D.C. Circuits. Ordinary observer or filter-then-compare formulations, Johnson v. Gordon, 409 F.3d 12 (1st Cir. 2005); Tanksley v. Daniels, 902 F.3d 165 (3d Cir. 2018); Peel & Co. v. Rug Market, 238 F.3d 391 (5th Cir. 2001); Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982); Sturdza v. United Arab Emirates, 281 F.3d 1287 (D.C. Cir. 2002).
• Write both motions in a paragraph each. Draft the defendant's best argument that no reasonable jury could find substantial similarity, then the claimant's best answer. If the first paragraph is shorter and more concrete, the claim is in trouble.

Part 10: Medium-specific checks

Music

• Identify which copyrights are in play. A song has a composition copyright, usually held by a publisher, and each recording has its own, usually held by a label. Different owners mean different registrations and sometimes different defendants.
• For pre-1978 compositions, compare the deposit copy. Performance elements found only on the recording are out of the case, Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc); Structured Asset Sales, LLC v. Sheeran, 120 F.4th 1066 (2d Cir. 2024), a ruling that kept much of the famous recording out of Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018).
• Filter the building blocks and order a prior-art search. Scales, arpeggios, common chord progressions, standard rhythms, and short motifs are free to all, Gray v. Hudson, 28 F.4th 87 (9th Cir. 2022). Plaintiff verdicts in Selle v. Gibb, 741 F.2d 896 (7th Cir. 1984) and Gray were both set aside after trial: in Selle the expert never addressed coincidence or a common source, and in Gray the shared ostinato was an unoriginal combination of commonplace elements.
• Test lyric claims against the short-phrase rule. Common phrases are rarely protected alone, although the Ninth Circuit reversed the dismissal of a lyric claim against "Shake It Off" in Hall v. Swift, 782 F. App'x 639 (9th Cir. 2019) (amended Dec. 5, 2019), holding that the complaint plausibly alleged the originality of the lyrics at issue.
• Trace access through the industry's actual channels. Airplay and chart history, demos sent to labels and publishers, and live performances count only with evidence tying them to the writers, Guzman v. Hacienda Records & Recording Studio, Inc., 808 F.3d 1031 (5th Cir. 2015); Armour v. Knowles, 512 F.3d 147 (5th Cir. 2007). Even a documented route through a manager or publisher does not save a claim if the songs share only unprotectable material, Peters v. West, 692 F.3d 629 (7th Cir. 2012); Hobbs v. John, 722 F.3d 1089 (7th Cir. 2013).

Literary works, film, television, and games

• Chart the extrinsic elements. Compare plot, sequence of events, characters, theme, mood, setting, pace, and dialogue after filtering stock elements and general premises, Benay v. Warner Bros. Entertainment, Inc., 607 F.3d 620 (9th Cir. 2010); Olson v. National Broadcasting Co., 855 F.2d 1446 (9th Cir. 1988); Berkic v. Crichton, 761 F.2d 1289 (9th Cir. 1985); Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984). Many story claims end on the pleadings or at summary judgment because the overlap is a premise and genre conventions, Tanksley v. Daniels, 902 F.3d 165 (3d Cir. 2018); Williams v. Crichton, 84 F.3d 581 (2d Cir. 1996).
• For pitches and submitted scripts, consider a contract claim. Copyright does not protect ideas, but a promise to pay for a submitted idea can be enforced as an implied-in-fact contract that, in the Ninth Circuit, the Copyright Act does not preempt, Montz v. Pilgrim Films & Television, Inc., 649 F.3d 975 (9th Cir. 2011) (en banc). State claims equivalent to copyright are preempted, 17 U.S.C. § 301.
• For games, separate rules from expression. Rules and functional controls are free, but a game's specific visual expression is not, Tetris Holding, LLC v. Xio Interactive, Inc., 863 F. Supp. 2d 394 (D.N.J. 2012); Incredible Technologies, Inc. v. Virtual Technologies, Inc., 400 F.3d 1007 (7th Cir. 2005); Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204 (9th Cir. 1988).

Visual art, photographs, and product designs

• Identify what the photographer authored. Originality lies in rendition (angle, light, lens, exposure), timing, or creation of the subject, Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444 (S.D.N.Y. 2005), never in the subject itself, Rentmeester v. Nike, Inc., 883 F.3d 1111 (9th Cir. 2018); Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763 (9th Cir. 2003); Harney v. Sony Pictures Television, Inc., 704 F.3d 173 (1st Cir. 2013); Leigh v. Warner Bros., Inc., 212 F.3d 1210 (11th Cir. 2000). Realistic depictions of nature get thin protection, Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003).
• For fabric and surface designs, collect sales data and samples. Wide distribution can support access and defeat summary judgment, L.A. Printex Industries, Inc. v. Aeropostale, Inc., 676 F.3d 841 (9th Cir. 2012), and a close enough copy can support summary judgment for the claimant, Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980 (9th Cir. 2017).

Software

• Obtain both codebases in the versions that matter, and do the filtration. A claimant that cannot produce the version allegedly copied, or that never performs an abstraction-filtration-comparison analysis, loses, General Universal Systems, Inc. v. Lee, 379 F.3d 131 (5th Cir. 2004); Antonick v. Electronic Arts, Inc., 841 F.3d 1062 (9th Cir. 2016). Filter elements dictated by efficiency, external constraints, or the public domain at each level of abstraction, Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992); Engineering Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335 (5th Cir. 1994); Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (10th Cir. 1997); Lexmark International, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004).
• Treat interfaces and command structures with care. A menu command hierarchy was held an unprotectable method of operation, Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807 (1st Cir. 1995); the Federal Circuit held Java API declaring code copyrightable, Oracle America, Inc. v. Google Inc., 750 F.3d 1339 (Fed. Cir. 2014), but the Supreme Court decided the case on fair use, Google LLC v. Oracle America, Inc., 593 U.S. 1 (2021). Reverse engineering to reach functional elements can be fair use, Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992).
• Account for licensed, open-source, and statutory copies. Open-source components carry their own terms (see Open Source Licensing Landmines in Enterprise Software Development), and the owner of a copy may make copies that are an essential step in using the program or for archival purposes, 17 U.S.C. § 117.
• Plan source code review under a protective order. Who may see the code turns on involvement in competitive decisionmaking, not job title, U.S. Steel Corp. v. United States, 730 F.2d 1465 (Fed. Cir. 1984); Brown Bag Software v. Symantec Corp., 960 F.2d 1465 (9th Cir. 1992). Trade secret claims often travel with these cases; see the Trade Secret Litigation Toolkit: Identification Statements, Two-Tier Protective Orders, and Forensic Protocols.

Part 11: Defenses and limitations

• License, express or implied. A nonexclusive license needs no writing and may be implied from conduct, as when a party creates a work at another's request and hands it over intending that it be used, Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990). When a licensee exceeded the license, ask whether the term breached limits the scope of the license (infringement) or is only a promise (contract).
• Fair use. Run the four factors of 17 U.S.C. § 107, beginning with whether the use has a further purpose or different character, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), which after Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023) is judged use by use and weighed against commerciality. Reimplementing a software interface was fair use in Google LLC v. Oracle America, Inc., 593 U.S. 1 (2021). See the Copyright Fair Use Checklist: A Practical Checklist.
• Statute of limitations. Civil claims must be commenced within three years after the claim accrued, 17 U.S.C. § 507(b). Each infringing act starts its own period, and laches cannot bar damages within it, Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014). Most circuits apply a discovery rule, Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120 (2d Cir. 2014), and a claim timely under that rule may recover damages for infringements more than three years old, Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024).
• First sale and other statutory limits. The owner of a lawfully made copy may sell or otherwise dispose of it, 17 U.S.C. § 109, including a copy lawfully made abroad, Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519 (2013). The doctrine covers distribution of that copy, never reproduction.
• Safe harbors. A qualifying service provider that designates an agent, implements a repeat-infringer policy, removes material expeditiously on notice, and meets the statute's other conditions is shielded from monetary liability for material stored at users' direction under 17 U.S.C. § 512. See Digital Millennium Copyright Act Safe Harbors for Online Service Providers.
• Copyright misuse. Using a copyright to secure rights beyond the grant, such as through anticompetitive license terms, can bar enforcement while the misuse continues, Lasercomb America, Inc. v. Reynolds, 911 F.2d 970 (4th Cir. 1990).
• Invalidity. Lack of originality, and knowing inaccuracies that would have caused refusal, 17 U.S.C. § 411(b); Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178 (2022).
• Innocent infringement. A court may reduce statutory damages to $200 per work for an infringer who was not aware and had no reason to believe that its acts infringed, 17 U.S.C. § 504(c), but not where a proper notice appeared on the published copies the infringer accessed, 17 U.S.C. § 401(d).
• Counterclaims. A claim against the claimant that arises from the same transaction, such as breach of the license in suit, is compulsory and is lost if not pleaded, Fed. R. Civ. P. 13(a). Defendants often add a declaratory counterclaim of noninfringement so that a judgment, and a fee motion under § 505, remain available if the claimant tries to walk away. See the Answer and Affirmative Defenses Checklist: A Practical Checklist.
• Defense check: Rank the defenses by what they cost to prove. A clean license or a limitations bar can end a case on motion; fair use and independent creation usually need discovery.

Part 12: Remedies and case value

• Estimate actual damages. Lost sales and lost license fees are the usual measures, and the fair market value of a license the infringer should have bought can itself be actual damages, On Davis v. The Gap, Inc., 246 F.3d 152 (2d Cir. 2001).
• Estimate the infringer's profits. The claimant proves gross revenue reasonably related to the infringement; the infringer must prove deductible expenses and the profit attributable to factors other than the copied work, 17 U.S.C. § 504(b). Apportionment can shrink an award sharply, Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390 (1940).
• If eligible, price statutory damages. The range is $750 to $30,000 per work, up to $150,000 for willful infringement, 17 U.S.C. § 504(c). All parts of a compilation or derivative work count as one work, and the claimant may elect statutory damages at any time before final judgment.
• Price fees in both directions. The court may award a reasonable fee to the prevailing party, claimant or defendant, on an even-handed basis, Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), giving substantial weight to the objective reasonableness of the losing position, Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016). Taxable costs are limited to the categories in 28 U.S.C. § 1920, Rimini Street, Inc. v. Oracle USA, Inc., 586 U.S. 334 (2019). A claimant barred from fees by § 412 can still be ordered to pay the defendant's.
• Decide whether an injunction is realistic. There is no presumption of irreparable harm, eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006); Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010). Preliminary relief requires a likely win and likely irreparable harm, Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), plus security under Fed. R. Civ. P. 65(c); impoundment is available under 17 U.S.C. § 503.
• Model a Rule 68 offer. A defendant's offer of judgment shifts post-offer costs to a claimant who does worse, and some circuits include § 505 fees in those costs, Marek v. Chesny, 473 U.S. 1 (1985); Jordan v. Time, Inc., 111 F.3d 102 (11th Cir. 1997), while others allow fees only to a prevailing party, Harbor Motor Co. v. Arnell Chevrolet-Geo, Inc., 265 F.3d 638 (7th Cir. 2001).
• Check collectability and insurance. A judgment is only as good as the defendant's assets. Many media and general liability policies cover some infringement claims, so the accused party should notify every potentially applicable insurer at once.
• Compare value with budget. In our experience a case resolved on a motion to dismiss costs each side from the high five figures to the low six figures, a case through expert discovery and summary judgment commonly costs several hundred thousand dollars a side, and a music or software trial can cost several million.
• Consider the Copyright Claims Board for small claims. Claims up to $30,000 in total can proceed before the Board, with statutory damages capped at $15,000 per work for timely registered works and $7,500 per work (and $15,000 in total) for others, 17 U.S.C. § 1504. A claim may be filed once a registration application is pending, 17 U.S.C. § 1505, but a respondent may opt out within sixty days after service, 17 U.S.C. § 1506. See The Copyright Claims Board: Small Claims Copyright Litigation Under the CASE Act.

Part 13: Forum, pleading, and companion claims

• File in federal court. District courts have exclusive jurisdiction over claims arising under the Copyright Act, 28 U.S.C. § 1338(a). A dispute that is really about a contract or about who owns the work may belong in state court.
• Plead facts, not labels. A complaint must state a plausible claim, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009): the registration, the claimant's ownership, the access chain with names and dates, and the specific protectable expression copied. Attach both works, which become part of the pleading, Fed. R. Civ. P. 10(c), and expect the court to compare them on a motion under Fed. R. Civ. P. 12(b)(6). The signature certifies a reasonable inquiry into the facts, Fed. R. Civ. P. 11.
• Decide whether preliminary relief is worth its cost. A motion requires an early, expert-supported showing of likely success and irreparable harm, and every week of delay undercuts the claim of urgency.
• For the accused, consider suing first. A party facing a concrete threat may seek a declaration of noninfringement, 28 U.S.C. § 2201. See the Declaratory Judgment Checklist: A Practical Checklist.
• Add companion claims only when they add something. Claims for removal of copyright management information, breach of contract, or trade secret misappropriation can reach conduct copyright does not; state claims equivalent to copyright are preempted, 17 U.S.C. § 301.
• Calendar service and response deadlines. A defendant who waives service has sixty days from the date the request was sent to respond, Fed. R. Civ. P. 4(d); otherwise the response is due twenty-one days after service under Fed. R. Civ. P. 12(a).

Part 14: Evidence preservation and pre-suit steps

• Issue a litigation hold as soon as a dispute is foreseeable. Lost electronically stored information can lead to curative measures and, on a finding of intent to deprive, to an adverse-inference instruction or dismissal, Fed. R. Civ. P. 37(e). Holds must reach creative files: drafts, stems and session files, layered images, repositories, chat channels, and personal devices used for work. See the Litigation Hold and Evidence Preservation Checklist: A Practical Checklist.
• Capture the accused work forensically. Make dated captures with URLs and hash values and a short declaration from the person who made them; buy physical copies and keep the receipts. Evidence must be authenticated, Fed. R. Evid. 901, and records kept in the ordinary course of business are easier to admit, Fed. R. Evid. 803(6).
• Keep investigation within ethical lines. Public research is safe. Contact with a represented party, or pretexting that involves deception, raises professional conduct issues that vary by state, and an investigator who becomes a fact witness may waive work product protection over the report.
• Retain a consulting expert before a testifying one. A consulting expert's facts and opinions are ordinarily shielded from discovery, Fed. R. Civ. P. 26(b)(4)(D), so use one for the first filtration and prior-art search, when the answers may be unwelcome.
• Decide whether to send a demand letter, and say only what you can prove. A letter can produce a quick license and establishes notice for willfulness; it can also prompt a declaratory judgment action in the recipient's chosen forum. State the registration, the works, and the protectable expression accurately. Offers and statements made in compromise negotiations are generally inadmissible to prove liability, Fed. R. Evid. 408, but a demand that makes no offer is ordinary evidence. See Drafting a Demand Letter: A Practical Checklist.
• For online copies, consider a takedown notice first. A notice that meets 17 U.S.C. § 512(c)(3) can remove material within days, but a knowing material misrepresentation in a notice creates liability under § 512(f). See How to File a DMCA Takedown Notice (And Respond to One).

Part 15: For the accused: the first thirty days

• Calendar every deadline in the letter or complaint, and ignore neither. For a letter, a short acknowledgment that the matter is under review costs nothing and avoids needless escalation; for a complaint, a missed response date risks default.
• Preserve, then collect. Send a hold the day the letter arrives (Part 14), then collect the creation record and interview the creators under privilege.
• Test the claimant's paper. Search the Copyright Office catalog, request the deposit, and compare the registration dates with your first publication or sale (Part 3). Ask who owns the work and how (Part 2).
• Map your sources. Identify every earlier work your creators used, saw, or heard. A common source is the most effective answer to an inference of copying.
• Run Parts 4 to 9 from your side. Write the subtraction memo and the two-paragraph motion test from Part 9.
• Find indemnities and insurance. Contracts with freelancers, agencies, stock libraries, and software vendors may put the defense on someone else, and insurance notice provisions are enforced strictly.
• Choose a response. Options include a substantive rebuttal, a request for the claimant's evidence of registration and access, a standstill and tolling agreement while information is exchanged, an early license or credit, a redesign, or a declaratory judgment action. If the claim is before the Copyright Claims Board, decide within sixty days whether to opt out; the Copyright Claims Board Toolkit: Claim Statements, Opt-Out Decisions, and Settlement Templates has the decision forms. For the first letter back, see Responding to a Cease and Desist Letter: A Practical Guide.
• Price the fee leverage. If § 412 bars the claimant's fees, the defendant's potential recovery under § 505 is real leverage, and an early, documented defense supports a fee motion and a Rule 68 offer later.

Part 16: Scoring the claim

Score each factor as strong, mixed, or weak for the claimant. Two weak scores among ownership, registration, access, and protectable overlap usually mean the claim should not be filed in federal court as framed.

Applying the score. In the worked example in the companion article, a songwriter who emailed a demo to a label's A&R coordinator scores well on access once streaming logs and a download record tie the demo to the producer's office, and reasonably well on protectable overlap because the hook's particular combination of pitch, rhythm, and placement is absent from the prior art. She scores poorly on remedies because she registered only after the accused song was released, which leaves actual damages and apportioned profits. That profile points to a negotiated co-writer credit and publishing share rather than a trial. Change one fact (the email went to a general submissions inbox with no link to the producer) and access collapses, the claim depends on striking similarity, and the prior art makes that showing unlikely.

Key authorities at a glance

Frequently asked questions

Do I need a registration before sending a demand letter? No. Registration is a precondition to filing suit on a United States work, not to asserting rights. But registering before the letter goes out shows the claim is real, and § 412 means that late registration may already have cost statutory damages and fees.

Someone used my idea. Do I have a copyright claim? Not for the idea itself; copyright protects expression. If you pitched the idea in a setting where both sides understood you expected payment if it was used, you may have an implied-contract claim instead, which is why submission terms matter.

My work is on the internet. Isn't that access? Usually not by itself. Courts look for real reach (a hit, a viral post) or a chain connecting the work to the people who made the accused work. A post with a few dozen likes was not enough in Woodland.

How much copying is too much? There is no safe percentage or note count. Courts look at the quantity and quality of protectable expression taken, and a short passage that is the heart of the work can be enough.

Can I sue a state university that used my photographs? Not for damages in federal court, after Allen v. Cooper. Injunctive relief against state officials, contract claims, and administrative remedies may remain.

I received a demand letter. What should I do first? Preserve everything, calendar the deadline, and then work through Parts 2, 3, 6, and 8 of this checklist before responding. Most weak claims show their weakness in those four Parts.

Practical takeaways

• Get the works, the dates, the agreements, and the people before forming a view.
• Ownership and registration problems are cheap to find and fatal to ignore; § 412 often sets the case's value before the merits do.
• Access must be documented and must reach the creators; internet availability alone rarely suffices.
• Keep probative similarity (proof of copying) separate from substantial similarity (protectable expression), and filter before comparing.
• Know the circuit's test and its early-dismissal record before choosing where to file or how to respond.
• Price fees in both directions and compare realistic recovery with the budget, including the Copyright Claims Board for small claims.
• An accused party's best evidence is its own dated creation record; preserve it on day one.

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

Related Documents

Related Articles

• Proving Copyright Infringement: Access, Substantial Similarity, and the Tests Courts Actually Use: the doctrine behind every item in this checklist, with the circuit tests explained.
• Copyright Damages and Remedies: Statutory Damages, Profits, Injunctions, and Fees: how registration timing and apportionment shape recovery.
• Copyright Ownership, Joint Authorship, and Termination of Transfers: proving the first element and the chain of title.
• Copyright Fair Use: The Four Factors, Transformative Use, and What Warhol Changed: the defense most often raised when copying is admitted.
• The Copyright Claims Board: Small Claims Copyright Litigation Under the CASE Act: the low-cost forum for claims under $30,000.
• Copyright in AI-Assisted Works: Human Authorship, Thaler v. Perlmutter, and the Copyright Office Guidance: what an AI-assisted work can and cannot support.
• Litigation Holds, Spoliation, and Rule 37(e): Preserving Electronic Evidence Before It Costs You the Case: preservation duties for creative files and repositories.

Related Guides

• Litigating Substantial Similarity in a Copyright Case: A Practical Guide: the step-by-step litigation companion to this checklist.
• Responding to a Cease and Desist Letter: A Practical Guide: the first moves after an accusation arrives.
• Motions to Dismiss Under Rule 12: A Practical Guide for Plaintiffs and Defendants: pleading standards and early motions in similarity cases.
• Bringing or Defending a Claim Before the Copyright Claims Board: A Practical Guide: procedure in the small-claims forum.

Related Checklists

• Copyright Registration Checklist: A Practical Checklist: getting the registration that suit and remedies depend on.
• Work Made for Hire Determination Checklist: A Practical Checklist: deciding who owns work made by employees and contractors.
• Copyright Fair Use Checklist: A Practical Checklist: the four factors in working order.
• Litigation Hold and Evidence Preservation Checklist: A Practical Checklist: preserving drafts, session files, and repositories.
• Expert Deposition Preparation Checklist: A Practical Checklist: preparing for the musicologist or software expert's deposition.

Related Toolkits

• Copyright Infringement Litigation Toolkit: Similarity Charts, Expert Reports, and Filtration Analyses: the charts, memoranda, and report outlines this checklist calls for.
• Copyright Licensing and Clearance Toolkit: Permissions, Rights, and Chain of Title: forms for reviewing licenses and title.
• Fair Use Toolkit: Analysis Memoranda, Clearance Decisions, and Litigation Positions: memoranda for the fair use defense.
• Copyright Claims Board Toolkit: Claim Statements, Opt-Out Decisions, and Settlement Templates: templates for small-claims practice and opt-out decisions.