Checklist · Intellectual Property

Registering, Licensing, and Enforcing a Copyright: A Practical Checklist

17 U.S.C. § 412

Type
Checklist
Jurisdiction
National
Date
2025-07-26
Topic
Intellectual Property

This checklist covers the practical copyright work in the order it should be done. It opens with an ownership audit, because a business that has not collected written assignments from its contractors does not own its own materials regardless of what it paid. The registration phase explains the timing rule that determines whether statutory damages and attorney's fees are available, and builds a quarterly registration habit around the three-month grace period. Licensing phases supply the drafting points that cause litigation decades later, particularly derivative works and media scope. Enforcement phases cover documenting infringement, the DMCA takedown and the counter-notice that follows, demand letters, and the decision between the Copyright Claims Board and federal court. A defense phase walks through what to do when someone claims your work infringes, starting with checking whether the claimant registered in time. Closing phases cover termination of transfers, copyright management information claims, and diligence.

Registering, Licensing, and Enforcing a Copyright: A Practical Checklist

Intellectual Property > Copyright | Published 26 July 2025 - Updated 26 November 2025 | UpLaw - uplaw.us

⭐ If you do one thing: register your works before you publish them, or within three months after. 17 U.S.C. § 412 is the difference between a claim worth thousands and a claim worth nothing.

Use with Copyright: A Comprehensive Guide to Ownership, Registration, Licensing, Fair Use, and Infringement and The Copyright Registration and Enforcement Toolkit.

Phase 1 — Ownership audit

☐ List every work the business depends on: website copy and design · logo and brand assets · photographs · illustrations · software and code · training materials · manuals · marketing copy · videos · music · product packaging · templates.

☐ For each, identify who actually created it:

  • ☐ Employee within the scope of employment → ⭐ the employer owns it automatically under 17 U.S.C. § 201
  • ☐ Contractor or freelancer → ⚠ the creator owns it unless there is a signed assignment
  • ☐ Agency → ⚠ check whether the agency itself obtained assignments from its own contractors — the chain frequently breaks here
  • ☐ Founder, before the entity existed → ⚠ needs an assignment into the entity
  • ☐ Multiple contributors → ⭐ joint work; each co-owner can license nonexclusively without the others' consent

☐ ⚠ Test every "work made for hire" clause. Under 17 U.S.C. § 101, a commissioned work can be a work made for hire only if it falls within nine categories: a contribution to a collective work · part of a motion picture or audiovisual work · a translation · a supplementary work · a compilation · an instructional text · a test · answer material for a test · an atlas.

  • ☐ ⚠ A logo is not on the list. Software is not on the list. A standalone photograph is not on the list.
  • ☐ ⭐ Always pair the clause with an express assignment in the alternative.

☐ Confirm every transfer is in a signed writing — 17 U.S.C. § 204. ⚠ Oral assignments transfer nothing.

☐ Collect retroactive assignments where they are missing. ⭐ Do it before a financing, a sale, or a dispute — the creator's price goes up dramatically once they know you need it.

☐ Record significant transfers with the Copyright Office for constructive notice and priority.

☐ Fix the templates going forward: every contractor agreement, employment agreement, and engagement letter should contain a present assignment and a waiver of moral rights where applicable.

Phase 2 — Registration

☐ ⭐ Understand the timing rule. 17 U.S.C. § 412 makes statutory damages and attorney's fees available only where the work was registered before the infringement began, or within three months of first publication.

  • ☐ ⚠ Registered after the infringement started? You are limited to actual damages and the infringer's profits — commonly a few hundred dollars, which will not fund a case.

☐ Know you cannot sue without it — 17 U.S.C. § 411, and Fourth Estate requires that the Office have acted on the application. ⚠ Ordinary processing takes months. Special handling costs substantially more and takes days.

☐ Build a quarterly registration habit:

  • ☐ Pick a fixed date each quarter
  • ☐ Register everything published in the prior quarter
  • ☐ ⭐ The three-month grace period means a quarterly cadence captures essentially everything
  • ☐ Store certificates, deposit copies, and publication dates in one place

☐ Use group registration where eligible: published photographs · unpublished works · serials and newspapers · short online literary works · contributions to periodicals. ⭐ This is what makes registration realistic for prolific creators.

☐ Complete the deposit — 17 U.S.C. § 408 for registration, and the separate mandatory deposit for published works at 17 U.S.C. § 407.

☐ ⭐ For software, request the redacted deposit option so registration does not destroy trade secret protection in source code — see Protecting Trade Secrets and Handling a Departing Employee: A Practical Checklist.

☐ Be accurate, but do not panic over honest error. Unicolors v. H&M Hennes & Mauritz, 595 U.S. 178, holds that an inaccuracy included without knowledge of its legal inaccuracy does not invalidate the registration.

☐ Use the © notice even though it is optional. ⭐ It defeats an innocent infringement argument and tells people whom to ask.

☐ Disclaim machine-generated material where applicable, and claim the human selection, arrangement, and modification.

Phase 3 — Licensing out

☐ Decide exclusive or nonexclusive. ⚠ An exclusive license is a transfer and requires a signed writing under 17 U.S.C. § 204; an exclusive licensee can sue for infringement, a nonexclusive one generally cannot.

☐ Enumerate the rights granted against the 17 U.S.C. § 106 list: reproduction · derivative works · distribution · public performance · public display · digital audio transmission of sound recordings.

☐ Specify:

  • ☐ The works, by title and registration number, on a schedule
  • ☐ Territory — ⚠ "worldwide" means worldwide
  • ☐ Term, and the fate of copies in the channel at expiration
  • ☐ Media and platforms — ⭐ address media not yet known, expressly, one way or the other
  • ☐ ⭐ Derivative works — permitted or not, and who owns them
  • ☐ Sublicensing and assignment; ⚠ whether it survives a change of control
  • ☐ Credit and attribution
  • ☐ Payment: advance, royalty rate, royalty base, accounting periods, audit rights
  • ☐ Warranties of ownership and non-infringement
  • ☐ Indemnity, with control of defense and a cap
  • ☐ Termination for breach, and reversion on non-use
  • ☐ ⭐ A reservation clause: all rights not expressly granted are reserved

☐ ⚠ Do not attempt to waive the 17 U.S.C. § 203 termination right. It operates "notwithstanding any agreement to the contrary."

Phase 4 — Licensing in

☐ Inventory every third-party element in your product: stock photography · fonts · music · video · code libraries · open source components · icons · templates.

☐ For each, confirm:

  • ☐ The license actually covers your use — commercial, web, print, product, broadcast
  • ☐ Territory and term
  • ☐ Whether derivative works and modifications are permitted
  • ☐ Whether redistribution is permitted
  • ☐ Attribution obligations, and whether you are complying
  • ☐ ⚠ Open source obligations — copyleft terms can require you to disclose derived source code
  • ☐ Whether the license survives a change of control

☐ ⭐ Keep the license file with the asset. ⚠ A stock license you cannot produce is a license you do not have.

☐ ⚠ Verify the licensor's own chain of title for anything significant. A license from someone who does not own the work protects you from nothing.

Phase 5 — When your work is copied

☐ Document before contacting anyone:

  • ☐ Screenshots with visible URLs and dates
  • ☐ Archived copies through a web archive
  • ☐ Downloaded copies of the infringing files, with metadata intact
  • ☐ Evidence of access — did they visit your site, receive your file, follow you?
  • ☐ Evidence of the scope — how long, how many places, how much traffic

☐ ⭐ Register immediately if you have not. ⚠ It will not restore statutory damages for infringement that already began, but it is a prerequisite to suit and it protects against the next use.

☐ Assess the claim honestly:

  • ☐ Do you own it, with a provable chain?
  • ☐ Is what they took protected expression, or facts, ideas, or functional elements?
  • ☐ Is there substantial similarity of protected expression?
  • ☐ Is there a plausible fair use defense — especially factor four?
  • ☐ Is it within the three-year period at 17 U.S.C. § 507?

☐ Consider a 17 U.S.C. § 1202 claim if your watermark was cropped or metadata stripped. ⭐ This is frequently the most valuable count in a photographer's case, and it is independent of infringement damages.

☐ Send a proportionate demand letter: identify the work, the registration, the infringing use, and what you want. ⭐ Reasonable demands get paid. Wild ones get ignored and invite a declaratory judgment action in the infringer's home forum.

☐ Use the DMCA takedown for online material — 17 U.S.C. § 512:

  • ☐ Signature
  • ☐ Identification of the copyrighted work
  • ☐ Identification of the infringing material and where it is located
  • ☐ Your contact information
  • ☐ A statement of good faith belief that the use is unauthorized
  • ☐ ⚠ A statement under penalty of perjury that the information is accurate and you are authorized
  • ☐ ⚠ Consider fair use before sending. A knowing material misrepresentation creates liability.

☐ Expect a counter-notice. ⚠ The platform may restore the material in ten to fourteen business days unless you file suit.

☐ Choose the forum:

  • ☐ ⭐ Copyright Claims Board — cheap, no counsel required, damages cap, ⚠ respondent may opt out
  • ☐ Federal court — where the amount is large, an injunction matters, or the defendant is sophisticated
  • ☐ ⚠ Check Allen v. Cooper, 589 U.S. 248, before suing a state entity for damages

☐ Remedies to plead: injunction, 17 U.S.C. § 502 · impoundment, 17 U.S.C. § 503 · actual damages and profits, or statutory damages per work, 17 U.S.C. § 504 · fees and costs, 17 U.S.C. § 505.

Phase 6 — When someone says you infringed

☐ ⚠ Do not respond immediately and do not admit copying in writing.

☐ Preserve everything. ⚠ Deleting after notice is spoliation and looks like guilt — see Issuing a Litigation Hold and Preserving ESI: A Practical Checklist.

☐ Ask the four questions that value the claim:

  1. ⭐ Does the claimant own it? Demand the chain of title. Many demand letters come from parties who cannot establish it.
  2. ⭐ When did they register? ⚠ Registration after your use began eliminates statutory damages and fees under 17 U.S.C. § 412 — and typically reduces a $6,500 demand to a few hundred dollars of actual damages.
  3. Do you already have a license? Stock license, platform terms, an implied license from the transaction that produced the material.
  4. Is the claim timely under 17 U.S.C. § 507?

☐ Analyze the substantive defenses:

  • ☐ Independent creation — a complete defense
  • ☐ Unprotectable material — facts, ideas, systems, functional elements, scenes à faire, merger
  • ☐ Fair use, factor by factor, honestly: ⚠ Andy Warhol Foundation v. Goldsmith, 598 U.S. 508, narrowed transformative use where the uses compete; Campbell v. Acuff-Rose Music, 510 U.S. 569, still governs parody; Google v. Oracle America, 593 U.S. 1, governs interoperability copying
  • ☐ First sale — 17 U.S.C. § 109; Kirtsaeng v. John Wiley & Sons, 568 U.S. 519, for lawfully made foreign copies
  • ☐ Section 110 exemptions for classroom and religious use — 17 U.S.C. § 110

☐ ⚠ Do not rely on any of these: taking "less than ten percent" · giving credit · not making money · taking it down when asked · "it was on the internet" · adding a disclaimer. ⭐ None of these is a defense.

☐ Consider the business answer. ⭐ A retroactive license is frequently cheaper than being right.

☐ If it is a volume demand-letter operation, respond in writing, remove the material, document removal, and offer the market licensing fee. ⚠ Do not ignore the letter — that is how a $300 problem becomes a federal case.

Phase 7 — Termination of transfers

☐ Identify grants made on or after January 1, 1978 of any work with continuing value.

☐ Compute the window under 17 U.S.C. § 203: five years beginning thirty-five years after execution; for a grant covering publication rights, thirty-five years from publication or forty from execution, whichever ends earlier.

☐ Serve written notice not less than two nor more than ten years before the chosen effective date, and record it with the Copyright Office.

☐ ⚠ Confirm the work is not a work made for hire — those are excluded entirely.

☐ ⭐ Calendar it now. Authors, songwriters, illustrators, and their heirs lose this right permanently by missing the notice window, and it cannot be waived.

☐ Understand the carve-out: derivative works prepared under the grant may continue to be used; ⚠ new ones may not.

Phase 8 — Diligence, before a financing or sale

☐ Chain of title for every core asset — ⭐ the finding that most often reprices a deal is a missing contractor assignment, not an infringement claim. ☐ Founder-created work assigned into the entity, and ⚠ cleared against prior employer and university IP policies. ☐ Joint authors identified — ⚠ a co-owner can license nonexclusively and defeat an exclusive deal. ☐ Registrations listed with dates relative to first publication, flagging 17 U.S.C. § 412 gaps. ☐ Inbound licenses, with change-of-control and open source obligations flagged. ☐ Outbound licenses, with exclusivity, reversion, and royalty exposure. ☐ Security interests recorded in the Copyright Office. ☐ Pending and threatened claims in both directions. ☐ ⭐ 17 U.S.C. § 203 termination windows on any acquired grant.

The mistakes that cost the most

⚠ Not registering before publication. The most expensive habit in the field. ⚠ Relying on a work-made-for-hire clause for a logo, software, or a photograph. ⚠ Paying a contractor and assuming you own the result. ⚠ Oral or handshake assignments. ⚠ Believing a percentage of a work can be safely copied. ⚠ Believing attribution is permission. ⚠ Sending a takedown without considering fair use. ⚠ Deleting material after receiving a demand letter. ⚠ Ignoring a demand letter. ⚠ Missing the 17 U.S.C. § 203 notice window. ⚠ Assuming an old work is in the public domain. ⭐ A photograph taken today may be protected past 2150. ⚠ Filing software source code unredacted, destroying trade secret protection.

Situation supplements

Photographers and illustrators

☐ ⭐ Group registration of published photographs, quarterly. This is the single highest-value habit in the profession. ☐ Embed IPTC metadata with your name, contact, and copyright notice — ⭐ and preserve the evidence that you did, because removal supports a 17 U.S.C. § 1202 claim. ☐ Watermark proofs, and keep the unwatermarked originals with their capture metadata. ☐ Contract in writing that you license, not sell, and say what the client may do — print, web, social, duration, exclusivity. ☐ ⚠ Model and property releases address publicity and privacy, not copyright. You need both, and they are different documents. ☐ Register before delivering to a client whenever practical.

Software companies

☐ Assignments from every developer, employee and contractor alike. ☐ ⭐ Register with a redacted deposit to preserve trade secret protection. ☐ Maintain an open source inventory with license obligations flagged, particularly copyleft. ☐ Understand the thin protection for interfaces and functional elements — Google v. Oracle America, 593 U.S. 1. ⭐ License terms and trade secrecy do more work than copyright here. ☐ Register each significant release, not just version one.

Writers, musicians, and other creators of long-lived works

☐ Register before publication. ☐ Read every grant for media scope and derivative rights. ☐ ⭐ Calendar the 17 U.S.C. § 203 termination window for every grant, and tell your heirs it exists. ☐ For music, remember there are two copyrights — the composition and the sound recording — and confirm who owns each. ☐ Keep a chain-of-title file that a purchaser or a court could follow without you.

Small businesses and nonprofits

☐ Assume you own nothing your contractors made until you find the signed assignment. ☐ Audit the website, logo, and photographs first — ⭐ these are the three that block a sale. ☐ Check every image on the site against a license you can produce. ☐ Adopt a takedown response procedure so a demand letter reaches counsel rather than sitting in an inbox.

Authority quick reference

Authority Use it for
17 U.S.C. § 101 Definitions — ⭐ the nine work-made-for-hire categories
17 U.S.C. § 102 Subject matter; the idea/expression exclusion
17 U.S.C. § 103 Compilations and derivative works
17 U.S.C. § 106 The six exclusive rights — enumerate these in every license
17 U.S.C. § 107 Fair use factors
17 U.S.C. § 108 Libraries and archives
17 U.S.C. § 109 First sale
17 U.S.C. § 110 Teaching and worship exemptions
17 U.S.C. § 201 Ownership; joint works; divisibility
17 U.S.C. § 203 ⭐ Termination of transfers
17 U.S.C. § 204 ⚠ Transfers must be signed writings
17 U.S.C. § 302 Duration
17 U.S.C. § 407 Mandatory deposit
17 U.S.C. § 408 Registration and deposit
17 U.S.C. § 411 ⚠ Registration as a prerequisite to suit
17 U.S.C. § 412 ⭐ The timing rule for statutory damages and fees
17 U.S.C. § 501 Infringement
17 U.S.C. § 502 Injunctions
17 U.S.C. § 503 Impoundment
17 U.S.C. § 504 Damages and profits; statutory damages per work
17 U.S.C. § 505 Costs and attorney's fees
17 U.S.C. § 506 Criminal infringement
17 U.S.C. § 507 Three-year limitations period
17 U.S.C. § 512 DMCA safe harbors and takedown
17 U.S.C. § 1201 Anti-circumvention
17 U.S.C. § 1202 ⭐ Copyright management information
Feist, 499 U.S. 340 No sweat-of-the-brow protection for facts
CCNV v. Reid, 490 U.S. 730 Employee status under agency factors
Harper & Row, 471 U.S. 539 Unpublished works; the "heart" of a work
Sony, 464 U.S. 417 Substantial non-infringing uses
Grokster, 545 U.S. 913 Inducement liability
Star Athletica, 580 U.S. 405 Separability for useful articles
Georgia v. Public.Resource.Org, 590 U.S. 255 Government edicts
Eldred, 537 U.S. 186 · Golan, 565 U.S. 302 Term extension and restoration

⭐ Print the 17 U.S.C. § 412 row and tape it above the desk. It is the rule that decides whether anything else here matters.

Where copyright meets the rest of the file

Also true Read
The name or logo needs protecting as a brand Trademarks: A Comprehensive Guide to Selection, Registration, Enforcement, and Disputes
An employee left with materials Protecting Trade Secrets and Handling a Departing Employee: A Practical Checklist · What Walks Out the Door: Trade Secrets, Non-Competes, and the Employee Who Leaves
Machine-generated content is involved The Model Said No: How Automated Decisions Are Made and How They Are Challenged
Litigation is likely Issuing a Litigation Hold and Preserving ESI: A Practical Checklist

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