Is it too late to file a copyright infringement lawsuit?

November 22, 2011

Dear Music Lawyer,

I am a songwriter. An illegal recording of my song was released 25 years ago. Is it too late for me to initiate a copyright infringement lawsuit? If not, what royalties would be payable?

—Bill

Dear Bill,

If you were aware of the infringement more than 3 years ago (or should have been aware of the infringement), it is likely that you would be barred from bringing a copyright infringement action now due to the statute of limitations set forth in the United States Copyright Act 17 U.S.C. §507(b). However, if the copyright infringement is ongoing (e.g., someone is still copying and distributing records with your song on it without your permission), then you may have standing to sue.

In order to bring a copyright infringement claim in the U.S., you would need to have registered the copyrighted work in question with the U.S. Copyright Office. The effective date of your copyright registration (i.e., whether it was before or after infringement of the work) would have a bearing on the amount of money you could expect to be awarded if you were successful in your copyright infringement claim. It would also affect whether you could get your attorney's fees paid.

Generally speaking, you would have needed to register your copyrights prior to the infringement to be able to get the "big money" (known as statutory damages) and attorney's fees. Registering post-infringement can make the lawsuit much more difficult because the copyright owner may be required to prove actual damages and lost profits. As a practical matter, it may also be harder to secure legal counsel without the potential that attorney's fees will be awarded.

TIP: The availability of statutory damages and attorney's fees should be a key incentive to registering works close to the date of creation and/or publication.

If you cannot bring an infringement action, then you might be able to bring a breach of contract action if someone had a contractual obligation to you (e.g., to pay you mechanical royalties). Again, you may run into a statute of limitations issue. For example, in Texas, the statute of limitations for breach of contract is currently 4 years from the date of the breach.

In any event, you would be wise to speak with an attorney who can analyze your specific fact situation because it is not an issue that can be fully explored on this site.

—Amy E. Mitchell