Answer
(Copyright Infringement)

Summary

This template is an answer to a complaint that alleges copyright infringement under Sections 106 and 501 of the Copyright Act (17 U.S.C. §§ 106 and 501). The template includes practical guidance, drafting notes, and an optional clause. This answer assumes that the plaintiff's allegedly infringed work is a prose, narrative document (a "literary work" under 17 U.S.C. § 101), as is your client's accused work. It is further assumed that plaintiff alleges that its reproduction, distribution, and display rights have been infringed. See 17 U.S.C. §§ 106(1), (3) and (5). It is further assumed that plaintiff's copyright in the allegedly infringed work is registered with the U.S. Copyright Office and plaintiff has attached a copy of its certificate of registration to the complaint. If, in your case, the plaintiff has not filed proof of registration as required, consider a motion to dismiss under Fed. R. Civ. P. 12(b). See 17 U.S.C. § 411(a). •Disclosure statement. Under Fed. R. Civ. P. 7.1(a), all corporate parties must file two copies of a statement that either "identifies any parent corporation and any publicly held corporation owning 10% or more of its stock" or "states that there is no such corporation." Local rules may require disclosure of additional information. For more on the disclosure statement, see Commencing a Lawsuit: Drafting and Filing the Complaint (Federal) — Corporate Disclosure Statement. For a sample disclosure statement, see Rule 7.1 Corporate Disclosure Statement (Federal). •Affirmative defenses. An affirmative defense is an assertion which, if proven by defendant, serves as a bar to recovery by plaintiff, even when plaintiff has proven all of the elements of their asserted claim. See Moore's Federal Practice - Civil § 8.08. Review relevant law and go over the facts with your client to determine all of the affirmative defenses that you may colorably assert in your answer. Omitting an available affirmative defense in an answer waives that defense. See Fed. R. Civ. P. 8(c); Moore's Federal Practice - Civil § 8.08[3]. In this template, affirmative defenses are listed in the section AFFIRMATIVE AND OTHER DEFENSES. •Proof of service (if answer is not filed electronically). If you do not file your answer electronically, a certificate of service must be filed with the answer or within a reasonable time after service and should specify the date and manner of service. If you e-file your answer, a certificate of service is not required. See Fed. R. Civ. P. 5(d)(1)(B). Because electronic filing is generally mandatory for persons represented by an attorney under Fed. R. Civ. P.5(d)(3)(A)), proof of service will usually be unnecessary. In practice, however, many practitioners still include proof of service with an answer, even when e-filing. •No counterclaims in this template. For the purposes of this template, it is assumed that your client has no counterclaims that can be asserted against plaintiff in this action. •Exhibits. Attach (or place before the court in the appropriate manner, depending on the medium) copies of each of defendant's accused works. If there is confusion or ambiguity in plaintiff's complaint regarding what is accused, attaching exhibits to the answer offers defendant an early opportunity to address such confusion. If defendant's accused work is itself registered, attach the certificate of registration. Consider whether there is a common, third-party source upon which both the allegedly infringed work and the accused work are based. If so, attach a copy of that source as an exhibit. When your draft answer is complete, review all of its factual denials and assertions and consider whether any of them could be supported by an exhibit. Your answer is, by nature, not a factual submission, but there is little risk to disclosing helpful documents (or objects) with your answer, and much to gain in previewing factual issues for the court. Finally, remember that exhibits to your answer are deemed to be a part of your answer. If an exhibit contains a factual statement relevant to the case, your client is bound to that statement to the same extent as to a statement in the answer itself. See Moore's Federal Practice - Civil § 10.05. For additional guidance on copyright infringement issues, see Copyright Fundamentals, Exclusive Rights of Copyright Owners, Fair Use Considerations, and Pre-suit Considerations in Copyright Litigation.