Evaluating the Timeliness of a Copyright Claim: A Practical Guide

The call usually starts with a date that sounds fatal. "This happened in 2014." Or a date that sounds safe: "I only found out in March." Neither tells you much. In copyright, a single dispute can contain a claim that expired a decade ago, a claim that accrued last Tuesday, and an ownership problem that will sink both of them. The lawyer who sorts those out in the first two weeks, while memories and server logs still exist, has an enormous advantage over the one who first thinks about limitations when the motion arrives.

This guide is the sorting process. For the doctrine and its history, read The Copyright Statute of Limitations After Warner Chappell v. Nealy: Discovery, Separate Accrual, and How Far Back Damages Reach. Here we assume you need to do something about a real file.

The short answer

• Start with forum and claim type, not with dates. Whether the clock runs from injury or discovery depends on the circuit, and ownership claims have their own rule.
• Build the chronology from records, before anyone's memory hardens. Your list needs the first act, every later act, the last act, actual knowledge, every fact bearing on constructive knowledge, every statement about ownership, and the registration dates.
• Compute backward from the filing date. Ask whether each act accrued within three years before the complaint. Do not count three years forward from the first infringement.
• Plaintiffs should plead less than they want to. A complaint need not anticipate limitations, and boasts about your monitoring or the defendant's fame can be used against you.
• Defendants should plead and preserve the injury rule, then spend their real effort on specific facts. The passage of time and the plaintiff's sophistication will not carry the defense alone.
• Sign a tolling agreement when a claim is close to the line and talks are real. Put in writing what it does not revive.
• Expect to decide this at summary judgment. Rule 12 works only when the complaint or noticeable filings establish the bar. Plan targeted discovery accordingly.
• Treat a time-barred ownership claim as a threat to everything. If ownership is the true dispute, infringement claims fall with it.

Step 1: Identify the forum's accrual rule

Who: responsible attorney. When: day one.

Section 507(b) requires that a civil action be "commenced within three years after the claim accrued." 17 U.S.C. § 507(b). The Supreme Court has assumed, without deciding, that accrual can mean discovery. Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024). Your first job is to find out what your court of appeals has actually held.

Then read the last two years of your own district's decisions. Judges often add a gloss to the circuit test, and district-level patterns on photo cases can differ from what the appellate opinions lead you to expect. UpLaw (uplaw.us) is one place to run that search.

Separately, confirm that the Copyright Act's general clock governs at all. A claim against the United States or its authorized contractor belongs in the Court of Federal Claims under 28 U.S.C. § 1498(b), whose text bars recovery for infringement more than three years before the complaint and has its own pause for an administrative claim.

Step 2: Sort the claims by type

Who: responsible attorney, with a first read of the contracts. When: first week.

Write down every theory in play and assign each a clock. A single complaint may contain all of these.

The gravamen test deserves real time, because getting it wrong is the most expensive mistake on this list. Ask one question: can this case be decided without resolving who owns the copyright? If a defendant admits copying but says "you don't own it, we do," then ownership is probably the dispositive issue, as it was in Seven Arts and Webster. If the defendant says "we never copied it" or "we had a license from you," then the ordinary each-act rule should apply. Compare the argument the district court rejected at the pleading stage in McClatchy, where the defendant's permission defense was not apparent from the complaint.

Note the limit on the ownership rule. It grew up among co-authors and parties in a close relationship. Ritchie v. Williams, 395 F.3d 283 (6th Cir. 2005) said the each-act rule applies to claims against an unknown third party, and Seven Arts expressly left that question open. A plaintiff suing a stranger should say so early. A defendant far downstream should trace its license chain to whoever received the repudiation or sent it.

Step 3: Build the chronology

Who: paralegal or associate assembles; the client's IT and marketing staff supply; attorney reviews each entry for its source. When: start in week one, then keep it current for the life of the case.

Every entry should have a date, an event, a source document, and a note on how sure you are. Do not write "client says" and move on. A date from a client's memory is a lead. A chronology template is in Copyright Timeliness Toolkit: Accrual Chronologies, Tolling Agreements, and Limitations Motions.

The categories you need

• Creation and title. Date of creation, authors, employment or commission status, assignments, and recordations under 17 U.S.C. § 205. Written transfers under 17 U.S.C. § 204.
• Publication and registration. First publication, application date, effective date of registration, certificate. These control 17 U.S.C. § 410(c) and 17 U.S.C. § 412 and may decide what the case is worth. See Copyright Registration Checklist: A Practical Checklist.
• Infringing acts, one row per act. Every print run, posting, re-post, firmware release, deployment, license grant, broadcast. Do not lump.
• The last act. The date of removal, sell-off, or end of license. If it is still ongoing, say so.
• Actual knowledge. The moment anyone on the owner's side learned of each act. Include employees, agents, licensing companies, and lawyers. Include who told whom.
• Constructive-knowledge facts. Press, trade publications, award shows, social media tags, co-workers' remarks, industry events, a defendant's public marketing. Also include reasons the use would have been hard to see.
• Monitoring. What search tools the owner used, when, how often, and what they returned.
• Ownership statements. Every email, credit, contract, royalty statement, registration, or non-payment that might be repudiation. Note who received it.
• Concealment. Removed credits, false notices, misleading statements, refusals to disclose.
• Interruptions. Tolling agreements, Copyright Claims Board filings, prior suits and how they ended.

Finding the dates on systems

For anything online or in software, the system remembers better than the people do, but only for a while. Ask for these at the first opportunity.

Authenticating these usually takes a records custodian or a certification under Fed. R. Evid. 902(13) and (14), with the foundation rules in Fed. R. Evid. 901. For the mechanics, see Hearsay and Business Records at Trial: Rule 803(6), Self-Authentication, and Getting Documents Into Evidence.

Step 4: Compute the window

Who: attorney. When: as soon as you have a working chronology, then again before any filing.

The Second Circuit corrected a district court on this in Grecco, and the error is common. The question is not whether the plaintiff discovered the use within three years after it began. The question is whether, as of a date three years before the complaint, the plaintiff had discovered or should have discovered it. If the complaint was filed October 12, 2021, the line is October 12, 2018.

Use this sequence for each act.

1. Fix the (actual or planned) filing date. A federal action is commenced by filing the complaint, Fed. R. Civ. P. 3, and copyright claims are exclusively federal, 28 U.S.C. § 1338(a). Service follows under Fed. R. Civ. P. 4(m), and missing that deadline can undo the filing.
2. Subtract three years. Call that the line. Calendar with a margin, because you do not want a Fed. R. Civ. P. 6 counting argument deciding your case. See Federal Deadline Calendaring and Recovery Checklist: A Practical Checklist.
3. Did the act occur on or after the line? Then it is timely under any rule.
4. If the act occurred before the line, ask when the plaintiff actually knew. Before the line means barred.
5. If actual knowledge came after the line, ask whether a reasonably diligent owner should have known before the line. If so, barred.
6. If not, the act is timely in a discovery-rule forum, and Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014) and Nealy together allow damages for it however old it is.
7. Add any tolling, and only then. Do not begin with tolling.
8. Run the whole thing again under the injury rule, to size the downside if the law changes while the case is pending.

A few complications arise often. Adding claims by amendment can move the line: in Motorola the court spoke of the three years before Motorola added its copyright claims in an amended complaint, more than a year after the original suit, so consider whether Fed. R. Civ. P. 15(c) gives you relation back and do not assume it. Adding a new defendant raises a different question, focused on what that defendant knew or should have known about a mistake in identity. Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010). Courts have been skeptical of using "Doe" substitution to get there. Treat late-identified defendants as a limitations issue from the start.

Each discrete act gets separate treatment. An act inside the window does not rescue one outside it. Chicago Building Design, P.C. v. Mongolian House, Inc., 770 F.3d 610 (7th Cir. 2014) read Petrella to mean the continuing-violation doctrine does not apply, and Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir. 1997) said a party cannot reach back. The inverse also holds. A plaintiff who has known about a use for years still has a claim for acts in the last three years, unless ownership is the true dispute.

Step 5: Work up constructive discovery

Who: attorney and investigator; expert only if the monitoring technology is in dispute. When: before the first substantive letter on either side.

This is where most contested cases are decided. The standards differ slightly from circuit to circuit, and the facts that matter recur.

Facts that help the defendant

• Prominent, targeted publicity in sources the plaintiff actually read or moved among. In Hayden, Italian press and Vogue coverage of Koons, a plaintiff fluent in Italian who read local papers and had done business with Staller's company, and a complaint admitting the works were a "media sensation and scandal."
• A red flag followed by inaction. In Oracle, the court held that suspicion creates a duty to investigate, and that a plaintiff who does not investigate is charged with what the investigation would have found.
• The plaintiff's own earlier statements, including prior pleadings. In Foss, earlier complaints and correspondence showed knowledge by early 2017.
• Evidence about the plaintiff's monitoring that shows what it found, or should have found, for this particular use.
• Relationships that make notice natural. A former employee working for a competitor, as argued in Graham, though timing matters there.

Facts that help the plaintiff

• The use was hard to see. Warren Freedenfeld held that architects have "no general, free-standing duty" to comb public records or visit sites.
• No triggering event. Sohm rejected reliance on the plaintiff's failure to audit where nothing should have prompted an audit, and said a defendant "cannot rely on the passage of time alone." Hayden reaffirms that, while adding that long passage of time combined with publicity "is surely relevant."
• The warnings predate the wrong. William A. Graham Co. v. Haughey, 568 F.3d 425 (3d Cir. 2009) holds that the discovery rule postpones accrual and does not accelerate it, so a warning that someone might infringe someday starts nothing.
• A generic reputation for enforcement. Grecco holds that general sophistication does not establish the date for this infringement. Lixenberg v. Complex Media, Inc., No. 1:22-cv-00354 (S.D.N.Y. Oct. 29, 2025) extended the logic to prior suits over the same photograph, at least at the pleading stage.
• Active misdirection. In Taylor v. Meirick, 712 F.2d 1112 (7th Cir. 1983), putting one's own copyright notice on copied maps was calculated to obstruct inquiry. In Motorola, Hytera's staff altered source code to conceal its source.

How to test your own case

Ask the question Grecco listed in its opinion. Was this infringement easy or hard to discover? What technology was available at the time? Was the owner using it? How often? What other methods? If you are a plaintiff with weak answers, know that before you write a letter asserting you just found out. If you are a defendant, these are your first interrogatories.

Step 6: Work up ownership repudiation

Who: attorney, with the client's correspondence files and any label, publisher, or company records. When: in parallel with Step 5, whenever authorship, chain of title, or a co-founder is involved.

Gather every statement or act that could count, then test each against the circuit's approach. In the Sixth Circuit, Everly v. Everly, 958 F.3d 442 (6th Cir. 2020) identifies three routes (a direct statement, publication without credit, and awareness of royalties not being paid), but Estate of George Worrell, Jr. v. Thang, Inc., No. 25-1863 (6th Cir. May 27, 2026) holds they are not automatic. The court asks whether the event was truly adverse to ownership or only to a contract right. In the Second Circuit, Wilson v. Dynatone Publishing Co., 892 F.3d 112 (2d Cir. 2018) recognizes public repudiation, private repudiation, and implicit repudiation by conspicuous exploitation without paying royalties.

For each candidate event, ask five questions.

1. Was it communicated to this claimant? A registration on file somewhere may not be notice. Wilson held that it was not in that case.
2. Did it address ownership? The audit letter in Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d 383 (6th Cir. 2007) addressed royalties, and that was not enough. In Webster v. Dean Guitars, 955 F.3d 1270 (11th Cir. 2020), an email saying the "consensus" was that an estate owned the graphic was enough.
3. Was it unequivocal? Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000) held that a producer's statement that they would discuss credit "further at some point" could be read as leaving authorship open, so it did not establish repudiation as a matter of law.
4. Which term or which work does it cover? Repudiating an original-term claim does not automatically reach the renewal term under Wilson. Check each song, each version, each edition.
5. Could the parties reasonably have thought a contract governed? Worrell turned on that. A claimant who believed he had traded ownership for royalties was not put on notice of an ownership challenge by a royalties dispute.

Do not overlook the other direction. A party's own letter claiming sole ownership starts a clock against those who claim rights in the work through contracts with it. That was Ritchie v. Williams, 395 F.3d 283 (6th Cir. 2005), where Kid Rock's 1990 letter barred the ownership-based claims of the promoters he had contracted with. And a contract signed in the plain words of an assignment can start the clock at signing, as in Consumer Health Information Corp. v. Amylin Pharmaceuticals, Inc., 819 F.3d 992 (7th Cir. 2016), even if the claimant later seeks rescission. For a client who wants certainty, a deliberate repudiation letter or a declaratory action under 28 U.S.C. § 2201 can force the issue; the trade-offs appear in Step 8. For the underlying ownership rules, see Copyright Ownership, Joint Authorship, and Termination of Transfers and Work Made for Hire Determination Checklist: A Practical Checklist.

Step 7: Preserve

Who: attorney issues; IT and business leads implement. When: as soon as a dispute is reasonably foreseeable. For a plaintiff, that means before you send the letter. For a defendant, when you get one.

Limitations cases are unusually sensitive to spoliation, because they turn on old records that ordinary systems overwrite. Fed. R. Civ. P. 37(e) addresses lost electronic information. Read Litigation Holds, Spoliation, and Rule 37(e): Preserving Electronic Evidence Before It Costs You the Case and use Litigation Hold and Evidence Preservation Checklist: A Practical Checklist.

Plaintiffs must preserve: monitoring tool configurations and result histories, vendor reports and emails, the moment of discovery (screenshots with metadata), the earliest search records, any social media or email in which the use was mentioned. If you claim you first found it on a particular date, you should be able to show your search history around that date, and expect to be asked.

Defendants must preserve: server and CDN logs (suspend rotation), CMS history, the file itself and its metadata, freelancer and agency communications, licenses, sales records going back as far as the earliest alleged act, and any draft takedown correspondence.

Capture before removing. Clients receiving a demand want the image gone that afternoon. Removal is usually sensible, because it stops new acts, but capture first: the page, the file, its URL, its metadata, and the log entries. Then take down every copy and every address, because Bell v. Wilmott Storage Services, LLC, 12 F.4th 1065 (9th Cir. 2021) involved a copy at a slightly different address long after the first removal. A hasty deletion can destroy both the proof of an end date and the defendant's best evidence.

Web archives can confirm a use on a date, but they do not prove continuity, and they prove nothing about what the plaintiff saw. Do not treat an archive capture as evidence of notice.

Step 8: Pre-suit moves and their trade-offs

Plaintiff's decisions

Register now if you have not. Suit cannot proceed without registration or refusal. 17 U.S.C. § 411(a); Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019). A pending application neither starts nor stops the limitations clock: Foss rejected the argument that the claim accrues only on registration, and also refused equitable tolling on the facts there. When the deadline is close, ask about the Copyright Office's special handling for prospective litigation, and check the current fee schedule and processing times. See Copyright Registration: A Comprehensive Guide and, for photographs, Copyright Registration of Photographs.

Consider the letter's effect on timing. A demand letter does not stop the clock. It does establish, in your own hand, that you knew of the use by that date. It can also draw a declaratory action in the defendant's chosen forum. Under Fed. R. Evid. 408, settlement communications have limited admissibility, but that rule does not make them undiscoverable, and a letter's statement about discovery may be used for other purposes. See Writing a Demand Letter: The Basics.

Consider the Copyright Claims Board for small claims. Commencing a proceeding tolls the district court clock while it is pending, under § 1504(b)(2). The respondent can opt out. See Copyright Claims Board Filing and Opt-Out Checklist: A Practical Checklist.

Consider filing protectively. If the three-year line for valuable acts is within weeks, file and then talk. A complaint can be stayed by agreement more easily than a lapsed claim can be revived.

Defendant's decisions

Ask for the facts in your first reply. When and how did the claimant discover the use? What is the registration number and effective date? Who owns it? A claimant's silence tells you something, and an answer pins them down. For the form of an image response, see Image Rights Toolkit: Claim Evaluation Worksheets, Response Letters, and Image Licensing Records.

Consider a repudiation letter where ownership is contested. Sending one starts the clock against the recipient under the Zuill line. It also makes the dispute explicit and may provoke suit, which is precisely the trade-off. Say exactly what you claim, about which works, and do not wrap it in a contract argument, or Worrell may keep the clock from starting. Send it in a way that proves receipt.

Consider a declaratory judgment action. Petrella noted the protection such an action might have offered MGM against the costs of uncertainty. It secures your forum, but it can also wake a claimant who had been ignoring you.

Tolling and standstill agreements

Limitations is an affirmative defense under Fed. R. Civ. P. 8(c)(1), and parties may contract around it. In Oracle America, Inc. v. Hewlett Packard Enterprise Co., 971 F.3d 1042 (9th Cir. 2020), Oracle and HPE signed a tolling agreement effective May 6, 2015, and the court counted back from that date, barring conduct before May 6, 2012.

Sample core language follows. A longer form with options is in Copyright Timeliness Toolkit: Accrual Chronologies, Tolling Agreements, and Limitations Motions.

The period from [EFFECTIVE DATE] through the Termination Date (the "Tolling Period") shall not be counted in determining whether any Covered Claim is barred by any statute of limitations or by laches. This Agreement does not revive any claim that was already time-barred on the Effective Date. Nothing here is an admission that any Covered Claim is valid or timely, and each party keeps every defense that existed on the Effective Date.

A defendant should notice a subtle point. Under separate accrual, a tolling agreement preserves more than it appears to: each day of the standstill would otherwise have pushed the three-year window forward past old acts. Calculate what the delay is worth before signing.

Step 9: Plaintiff's complaint

The temptation is to pre-empt the defense. Often that is a mistake.

Grecco is explicit: "Timeliness . . . is not an element," and a complaint need not plead around the defense. Jones v. Bock, 549 U.S. 199 (2007) sets the general rule that a complaint can be dismissed only if its allegations establish the bar. So the plaintiff chooses how much to say. The trouble comes from the following.

• Bragging about enforcement. In Grecco, the complaint's description of the plaintiff's constant searching was what the district court seized on. That dismissal was reversed, but on appeal, and only after years of expense.
• Bragging about the defendant. In Hayden, the complaint's vivid description of how famous the works were became a binding admission about how visible they were.
• Pleading exact discovery dates without support. Dates can help survive a motion, but you will be held to them.
• Filing without the prior pleadings in mind. Foss used allegations from the plaintiff's own earlier suits. Before filing, read everything the client has ever filed.

A reasonable middle ground for an older use, where the dates would otherwise look bad, goes like this.

Plaintiff first learned of Defendant's use of the Work on or about [DATE], when [HOW]. Before that date, Plaintiff had no knowledge of the use, and nothing had come to Plaintiff's attention that would have prompted an inquiry into it. [Optional: Defendant's use was not visible to the public without (DESCRIBE).] Defendant's infringing acts include those listed in Exhibit A, each of which is a separate infringement.

Attach a schedule of acts, so the court can rule act by act. If you allege fraudulent concealment as a tolling ground, plead the particulars, as Fed. R. Civ. P. 9(b) requires for fraud. See also Drafting a Complaint That Survives a Motion to Dismiss.

Step 10: Defendant's answer

Plead limitations specifically under Fed. R. Civ. P. 8(c)(1), and tie it to facts where possible. A bare defense may survive, but one with facts makes for a more credible early motion and gives notice of what you will pursue. Plead estoppel separately if you have misleading conduct and reliance. Plead laches only for what remains of it: equitable relief in extraordinary cases and the remedial-stage argument. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014).

Preserve the injury rule even in a circuit bound by discovery precedent. It costs a sentence. Warner Chappell had not preserved it below, and that is why the Court would not reach it. Here is sample language.

Plaintiff's claims are barred in whole or in part by 17 U.S.C. § 507(b). Defendant contends that a copyright claim accrues when the infringing act occurs, and recognizes that [CIRCUIT PRECEDENT] holds otherwise; Defendant preserves this contention for further review. In the alternative, Plaintiff knew or with due diligence should have known of the alleged acts before [DATE], because [SPECIFIC FACTS]. Plaintiff's claims that depend on ownership of the Work are also barred because any claim of ownership accrued no later than [DATE].

See Drafting an Answer and Affirmative Defenses: A Practical Guide and Responsive Pleading Toolkit: Answer Templates, Affirmative Defense Libraries, and Counterclaim Outlines for pleading form.

Step 11: Decide about a Rule 12 motion

Defendant's question: does the bar appear on the face of the complaint, or in matters the court can notice under Fed. R. Evid. 201?

Strong candidates are these:

• The complaint alleges an old act and an old discovery date.
• The complaint shows ownership is the only true dispute and pleads or attaches an old repudiation. Seven Arts Filmed Entertainment Ltd. v. Content Media Corp., 733 F.3d 1251 (9th Cir. 2013) affirmed dismissal on that basis.
• The plaintiff's prior pleadings establish knowledge, as in Foss.

Weak candidates are these:

• "They must have known." Grecco holds that even a high likelihood of untimeliness is not enough.
• Sophistication, enforcement history, or a list of the plaintiff's other cases. Notice of such suits shows they exist. It does not show this use should have been discovered.
• In the Second Circuit, prior suits about the same work, per Lixenberg v. Complex Media, Inc., No. 1:22-cv-00354 (S.D.N.Y. Oct. 29, 2025), at least on a motion to dismiss.

Consider a partial motion that targets the oldest acts, or the injury rule for preservation, without betting everything. Consider the cost: a losing motion educates the plaintiff, and if the judge converts it under Fed. R. Civ. P. 12(d) you may be arguing an undeveloped record. A Rule 12(c) motion after the answer is an alternative, and early limited discovery followed by a Rule 56 motion is often better. See Motions to Dismiss Under Rule 12: A Practical Guide for Plaintiffs and Defendants.

Plaintiff's response: emphasize the standard (clear from the face of the complaint), the burden (defendant's), and the absence of facts about this particular use. Oppose extrinsic material, and if the court considers it, ask for discovery under Fed. R. Civ. P. 56(d). Keep an amendment in reserve. The district court in Grecco offered leave to allege a separate act inside the window, which is a useful fallback to have ready.

Step 12: Plan discovery around the limitations issue

If the limitations defense could be dispositive or reshape damages, raise it at the Rule 26(f) conference and consider asking for phased discovery. The argument for phasing is efficiency. The argument against is that merits and notice evidence overlap. See Fed. R. Civ. P. 26 and the discovery plan portions of Copyright Infringement Litigation Toolkit: Similarity Charts, Expert Reports, and Filtration Analyses.

Defendant's targets.

• Interrogatories on the date and manner of first knowledge of each act, each person who knew, and all monitoring efforts.
• Requests for monitoring tool records, vendor contracts, reports, and communications; takedown and demand logs for the same work.
• A Fed. R. Civ. P. 30(b)(6) deposition of an entity plaintiff on its enforcement program during the critical years.
• A Fed. R. Civ. P. 45 subpoena to any licensing agent or image-tracking vendor. Under ordinary agency principles, what the agent knew may be charged to the owner, so ask who knew first.
• The owner's social media and press exposure in the relevant years.

Plaintiff's targets.

• Facts showing the use was hard to detect: targeting, geofencing, private portals, absence of attribution, low traffic.
• Records of concealment: changed credits, stripped metadata, altered code.
• The first and last dates of each act, sales records, and any internal awareness of the plaintiff's rights.

The privilege question. A plaintiff who relies on "we discovered it on this date through our monitoring" cannot easily shield how the monitoring worked. Expect a fight over whether vendor reports are work product. Decide early what you will disclose, because a sword-and-shield ruling can hurt more than the documents would have. Keep legal analysis separate from raw detection data from the start.

Step 13: Summary judgment

Most limitations defenses that win do so here. Fed. R. Civ. P. 56 applies in the ordinary way, with the burden on the defendant as the proponent of an affirmative defense, and the court draws reasonable inferences against the movant.

What a winning defense record looks like. Tie each element to evidence. Hayden is the model: specific publications, specific dates, specific evidence that the plaintiff was in the audience, and the plaintiff's own words. The panel also added a warning against overreach by disclaiming any "celebrity privilege"; fame alone would not have sufficed. Move separately on ownership if available. Ask in the alternative for partial summary judgment limiting the damages period to acts after the line.

What a winning plaintiff's response looks like. A sworn declaration about actual knowledge is necessary but not sufficient, because constructive discovery is an objective test. Hayden treats the plaintiff's actual ignorance as not determinative. Offer facts: what the owner's monitoring was and was not, why the use would not have surfaced, and how the publicity relied on did not reach the owner's world. Sohm helps where the defendant offers little beyond the passage of time. Graham helps if the warnings predate the wrong.

Ownership. Remember Worrell: summary judgment for the defendant was reversed because the record, read in the claimant's favor, showed conduct consistent with a contract dispute. If you are the defendant, find an event that speaks to ownership itself. If you are the claimant, build the record of dealings that treated your rights as intact. For the general standards, see Summary Judgment Under Rule 56: Winning and Surviving Before Trial and Summary Judgment Motion Checklist: A Practical Checklist.

Step 14: Trial and the verdict form

Timeliness can go to the jury when facts are disputed. Graham shows how much respect a jury's answer gets: the district court overturned a jury's finding of timeliness on storm warnings, and the Third Circuit reversed. Ask for a special verdict or interrogatories under Fed. R. Civ. P. 49, with a question for each group of acts, so that a partial bar produces a usable judgment. Sample instructions and a verdict form are in Copyright Timeliness Toolkit: Accrual Chronologies, Tolling Agreements, and Limitations Motions. Object on the record under Fed. R. Civ. P. 51 and move under Fed. R. Civ. P. 50 to preserve sufficiency arguments.

Equitable matters generally go to the judge: laches at the threshold, often tolling, and the delay factors in framing injunctions. Ask early how your judge intends to allocate those. Estoppel's factual findings can overlap with jury issues.

Step 15: Size the damages window early

Limitations and damages are planned together. Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024) means a timely old act yields money for that act. So build the damage model by year and by act, with the line drawn so it can be moved.

• Actual damages and profits under 17 U.S.C. § 504(b) reach all timely acts. The defendant may offset expenses and apportion. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014) allows the court to consider delay in assessing profits, after closely examining reliance.
• Statutory damages under 17 U.S.C. § 504(c) are per work, and if the first act in the series came before registration, 17 U.S.C. § 412 rules them out. Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696 (9th Cir. 2008) and Bouchat v. Bon-Ton Department Stores, Inc., 506 F.3d 315 (4th Cir. 2007) trace later acts back to the first. So in a late-registered case, the old acts may yield the only money the case has.
• Fees under 17 U.S.C. § 505 follow the same § 412 limit.
• Injunctions under 17 U.S.C. § 502 are prospective, with delay weighing in the terms.
• Mitigation. Energy Intelligence Group, Inc. v. Kayne Anderson Capital Advisors, L.P., 948 F.3d 261 (5th Cir. 2020) held failure to mitigate is no complete bar to statutory damages, but it is a factor in setting them.

For expert work on revenue attribution, see Copyright Damages and Remedies: Statutory Damages, Profits, Injunctions, and Fees.

Step 16: Preserve for appeal

Two decisions turned on where and how an argument was raised. Foss treated the daily-display theory as waived because it first appeared in a reply brief. Hayden refused to reach a DMCA separate-accrual theory because the plaintiff had not developed it below and offered only a citation on appeal. Standard of review also matters: legal rulings on accrual and summary judgment are reviewed de novo, a denial of equitable tolling for abuse of discretion, and a bench finding on repudiation for clear error, as in Garza v. Everly, 59 F.4th 876 (6th Cir. 2023).

Keep a short preservation list for every case, including the injury rule if you are the defendant, and any argument about the proper unit of infringement for hosted content. Both may become important if a future court takes a question this area has so far left open.

Worked hypothetical: a plaintiff with a fabric print

Suppose Imogen Tsai designs textile prints from a studio in Portland, Oregon. She registered "Saltmarsh No. 4" in 2019, within three months of first publication. In February 2026, a friend sends her a link to a Fennimore Home duvet using what looks like her print. Fennimore's product page says "new for spring." But a little searching turns up a 2021 catalog with the same design, and a former sales rep tells her it was in stores as early as 2020.

Her lawyer works through the steps. The forum is the Ninth Circuit, so discovery. There is no ownership dispute, so each sale is an act. Filing in April 2026 puts the line at April 2023. Sales since then are safe. Sales in 2020 to early 2023 depend on whether she should have known before the line. So the lawyer asks: did she do trade shows? Did she search regularly? Is Fennimore a brand she followed? She says she went to a big home goods trade show in 2022, where she did not walk the Fennimore booth, and she does not use image tracking. That is not Hayden, but it is not nothing, and under Oracle America, Inc. v. Hewlett Packard Enterprise Co., 971 F.3d 1042 (9th Cir. 2020) the question will be what she had reason to suspect.

She registered early, so § 412 is no obstacle, and statutory damages and fees are available for the work. That changes the economics: the older sales matter mainly for an actual-damages-and-profits election and for willfulness themes. The lawyer recommends the following: capture the product page now, send a preservation letter along with the demand, file before the line moves in any way that matters, plead the February 2026 discovery plainly with one sentence about how it happened, say nothing about her being a tireless enforcer, and attach a schedule that separates sales by year. Fennimore's opening reply asks about the 2022 trade show. That is why the lawyer asked first.

Worked hypothetical: a defendant facing an old ownership claim

Suppose Thornbury Games, a small studio in Raleigh, built its engine on code written in 2017 by Dariusz Lund, a contractor, under a statement of work that says the deliverables "belong to the Company" but is signed only by Thornbury. In 2019, after a pay dispute, Lund emailed the founders: "that code is still mine until I'm paid." A founder answered the same day: "We own the engine. It's in our SOW. Talk to our lawyer about your invoice." Lund then took a job elsewhere, and Thornbury shipped three games. In 2026, one game does well, and Lund sues for infringement, seeking profits.

Thornbury's lawyer sorts the claims. Thornbury admits it uses the code. So the real dispute is ownership: the signature rule of 17 U.S.C. § 204 may mean the statement of work did not transfer title, and the copyright may well be Lund's unless another theory helps. On the merits Thornbury might be in trouble. But on timeliness its position is strong. The founder's reply is a direct statement of exclusive ownership sent to the claimant in 2019, and three years ran in 2022. It looks like Ritchie v. Williams, 395 F.3d 283 (6th Cir. 2005) and Webster v. Dean Guitars, 955 F.3d 1270 (11th Cir. 2020). Lund will say the exchange was about an invoice, relying on Worrell. Thornbury's answer is that the email says "we own the engine," in response to his statement that the code was his, and so addresses ownership in terms. Fourth Circuit law applies in North Carolina; the lawyer checks how that court has treated repudiation and finds less guidance than in other circuits, so the briefing leans on the out-of-circuit consensus and Kwan v. Schlein, 634 F.3d 224 (2d Cir. 2011).

The lawyer files the answer with limitations and preservation language, serves narrow discovery, and moves early for summary judgment on the single issue. A Rule 12 motion is possible only if the complaint mentions the email, and it does not. The lawyer also warns the client: if the court finds a dispute about what the exchange meant, the case goes on with a real title problem, so settlement talks should start while the motion is pending. And Thornbury should fix its paperwork for every other contractor this week.

Common mistakes

Counting forward from the first infringement. This is the Grecco error. Count back from the filing date, act by act.

Treating one date as the date. A dispute has many acts and possibly many clocks. A single "statute ran in 2021" conclusion is almost always wrong in one direction or the other.

Assuming the discovery rule is safe forever. It is the law of nearly every circuit, but the Supreme Court has left it open and three Justices oppose it. A plaintiff with old acts of real value should prefer to file sooner, since a change in the law during the case may apply to it.

Thinking a long delay alone wins. Sohm and Hayden both say it does not. Defendants who bring only the calendar and the plaintiff's litigation history tend to lose in the Second Circuit.

Thinking actual ignorance alone wins. Hayden says it does not. "I didn't know" answers only half the test.

Calling an ownership case an infringement case. Courts look through the label to the gravamen, and the plaintiff who ignores a ten-year-old repudiation will lose the whole case, not just the old years.

Treating a royalties fight as repudiation, or assuming it is not. Under Worrell it may not be. Under Wilson conspicuous exploitation without royalties may be. Read your circuit's cases carefully.

Relying on a pending application. Filing an application does not pause anything. Foss is direct on this.

Filing a suit that gets dismissed and assuming you can refile. A dismissal without prejudice does not freeze the clock. Foss and Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 3:23-cv-00026 (S.D. Miss. July 29, 2025) are unforgiving, and the plaintiff in Emmerich carried the burden and lost it on tolling.

Deleting first and thinking later. It destroys evidence of end dates and invites a sanctions motion under Rule 37(e).

Removing the page and not the file. If the file still answers at its URL, you may still be displaying it under the Bell approach. Have someone technical check every copy.

Raising the best theory too late. Daily infringement, DMCA separate accrual, and the injury rule all need to appear in the district court in developed form.

Forgetting § 412 until the end. A plaintiff can win on limitations and find that the case has no statutory damages or fees. Do the arithmetic first.

A short note on cost

Limitations work is among the cheapest high-value work in a copyright case. A careful chronology is mostly paralegal and client time. A targeted Rule 56 motion can often avoid merits experts altogether. For a plaintiff, the early evaluation may reveal that the case is worth far less, or far more, than expected. For a defendant facing a low-value demand, the same work may cost more than settlement, and it is reasonable to do a stripped-down version that answers only the question of whether the claimant has a date. Scale it to the money at stake. Secondary liability questions can add further parties and further clocks, as Contributory and Vicarious Copyright Liability After Cox v. Sony: Who Pays When Someone Else Infringes discusses.

This guide gives general information about federal copyright limitations and is no substitute for advice on your own facts and forum. If a date in your file is close, it makes sense to get a copyright litigator's eyes on it before anything else goes out the door.

Related Documents

Related Articles

• The Copyright Statute of Limitations After Warner Chappell v. Nealy: Discovery, Separate Accrual, and How Far Back Damages Reach: the doctrine, history, and leading cases behind each step here.
• Statutes of Limitations, Accrual, and Tolling: The Clock That Ends Most Claims: limitations and tolling concepts across practice areas.
• Copyright Damages and Remedies: Statutory Damages, Profits, Injunctions, and Fees: remedies once a claim is timely.
• Copyright Ownership, Joint Authorship, and Termination of Transfers: the ownership rules that determine whether a repudiation matters.
• Image Copyright Demand Letters: How Photo Licensing Enforcement Works and What Claims Are Really Worth: valuing and responding to old-post demands.
• Litigation Holds, Spoliation, and Rule 37(e): Preserving Electronic Evidence Before It Costs You the Case: preservation duties for server and monitoring data.
• Hearsay and Business Records at Trial: Rule 803(6), Self-Authentication, and Getting Documents Into Evidence: getting system records into evidence.
• Contributory and Vicarious Copyright Liability After Cox v. Sony: Who Pays When Someone Else Infringes: secondary liability and the extra parties it brings.

Related Guides

• Responding to an Image Copyright Infringement Demand: A Practical Guide: the demand-letter path for an image use.
• Motions to Dismiss Under Rule 12: A Practical Guide for Plaintiffs and Defendants: general Rule 12 practice.
• Drafting an Answer and Affirmative Defenses: A Practical Guide: pleading affirmative defenses with facts.
• Drafting a Complaint That Survives a Motion to Dismiss: complaint drafting more broadly.
• Pleading Around or Moving to Dismiss on Copyright Preemption: A Practical Guide: handling state-law claims that shadow the copyright claim.
• Exercising or Defending a Copyright Termination: A Practical Guide: when termination rights overlap with ownership timing.

Related Checklists

• Copyright Claim Timeliness Checklist: A Practical Checklist: a phase-by-phase checklist for accrual, ownership, tolling, and damages.
• Statute of Limitations Diary Checklist: A Practical Checklist: calendaring limitations dates.
• Copyright Infringement Claim Evaluation Checklist: A Practical Checklist: full evaluation of the merits.
• Federal Deadline Calendaring and Recovery Checklist: A Practical Checklist: federal deadline controls.
• Summary Judgment Motion Checklist: A Practical Checklist: a checklist for the motion that usually decides this defense.

Related Toolkits

• Copyright Timeliness Toolkit: Accrual Chronologies, Tolling Agreements, and Limitations Motions: templates for the chronology, tolling agreement, repudiation letter, motions, and jury instructions.
• Image Rights Toolkit: Claim Evaluation Worksheets, Response Letters, and Image Licensing Records: image claim worksheets and response letters.
• Copyright Infringement Litigation Toolkit: Similarity Charts, Expert Reports, and Filtration Analyses: broader copyright litigation working papers.