Interrogatories
(Copyright Litigation) (Alleged Infringer to Copyright Owner)

Summary

These template interrogatories under Rules 26(b)(1) and 33 of the Federal Rules of Civil Procedure are for use by a defendant in a copyright litigation in federal district court. This template includes practical guidance, drafting notes, and alternate clauses. The term "Accused Work" is used to mean the work by defendant alleged by plaintiff to infringe. The term "Plaintiff's Work" is used to mean the copyright-protected work that plaintiff asserts has been infringed. Rule 33 permits a party in a federal lawsuit to serve upon other parties interrogatories inquiring into any matter that is permitted under Rule 26(b), which includes: • Any non-privileged matter • Relevant to any party's claim or defense –and– • Proportional to the needs of the case, considering: ◦ The importance of the issues at stake in the action ◦ The amount in controversy ◦ The parties' relative access to relevant information ◦ The parties' resources ◦ The importance of the discovery in resolving the issues –and– ◦ Whether the burden or expense of the proposed discovery outweighs its likely benefit Fed. R. Civ. P. 26(b); Fed R. Civ. P. 33. See, e.g., Batiste v. Lewis, No. 17-04435, 2019 U.S. Dist. LEXIS 225459, at *18-19 (E.D. La. Mar. 25, 2019) (broad interrogatories were not proportional to the needs of the case). As a copyright defendant, you have no affirmative burden of proof, except as to any affirmative defenses you may assert (see below). A plaintiff must prove the following elements of an infringement claim: • Ownership of a valid copyright –and– • Copying by the defendant of the constituent elements of plaintiff's work that are original The copying element is made up of the following two sub-elements: • Copying in fact –and– • Unlawful appropriation See Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 548 (1985); Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823 (10th Cir. 1993) (explaining sub-elements of copying); see also Nimmer on Copyright § 13.01. A copyright plaintiff may seek to recover three different types of damages: • Actual damages (e.g., revenue lost by plaintiff due to defendant's infringement) • Statutory damages (per-infringement amounts set by statute according to criteria such as seriousness of the infringing act and the financial worth of the infringer) • Infringer's profits (in cases where the defendant's profits from the infringing work(s) are greater than the actual damages to which plaintiff would be entitled) 17 U.S.C. § 504(b)–(c). See also Nimmer on Copyright § 14.02 (actual damages), Nimmer on Copyright § 4.04 (statutory damages), and Nimmer on Copyright § 14.03 (defendant's profits). A key part of your defense will be challenging the first prong of your adversary's prima facie case of infringement, ownership of a valid copyright. Some of the interrogatories seek information related to: • Lack of originality • Invalid registration • Lack of full ownership of the copyright in Plaintiff's Work Numerous affirmative defenses are available to you as defendant. You have the burden of proof as to those defenses. Use interrogatories to discover evidence plaintiff may possess that would support them. Commonly raised, copyright-specific affirmative defenses are: • Fair use • Independent authorship • Common source • Joint ownership • Scènes à faire • Statute of limitations • Abandonment of copyright • Licensed or otherwise authorized use See Nimmer on Copyright §§ 13.04–13.09. Consider the question of whether fair use is, as a matter of pleading and proof, an affirmative defense or merely an excuse to plaintiff's charge of infringement. See Dr. Seuss Enters., Ltd. P'ship v. ComicMix Ltd. Liab. Co., 983 F.3d 443, 459 (9th Cir. 2020) (reviewing cases and arguments and stating that "[T]he Supreme Court and our circuit have unequivocally placed the burden of proof on the proponent of the affirmative defense of fair use."); but see Lenz v. Universal Music Corp., 801 F.3d 1126, 1132-33 (9th Cir. 2015) (in the context of the Digital Millennium Copyright Act, classifying fair use as an "authorization," which renders the accused act of copying noninfringing). For interrogatories from a copyright owner to an alleged infringer, see Interrogatories (Copyright Litigation) (Copyright Owner to Alleged Infringer). For further information on the scope of discovery and Rule 26(b) generally, see Scope of Discovery (Federal) and Scope of Discovery Checklist (Federal). For more on interrogatories generally, see Interrogatories: Drafting and Serving Interrogatories (Federal) and Interrogatories: Drafting and Serving Interrogatories Checklist (Federal). For additional information on copyright litigation, see Pre-suit Considerations in Copyright Litigation. For an overview of copyright infringement claims and defenses, see Copyright Enforcement Resource Kit.