USA Law and Practice Contributed by: Irwin A. Kishner, Daniel A. Etna, Joel Wagman and Barry Werbin, Herrick, Feinstein LLP
tect copyright, which exists from the moment of creation of an original work of authorship that is otherwise protectable by copyright. However, except for non-US Berne Convention works, registration is still required as a prerequi - site to sue for copyright infringement in the USA. In addition, if a registration is issued within three months of a work’s first publication, in a subse - quent infringement action the copyright owner may seek both statutory damages (in lieu of a need to prove actual damages or an infringer’s profits) and legal fees if successful. Although non-US Berne Convention country copyright owners are exempt from the registration require - ment as a pre-condition of suing for infringe - ment, they cannot seek statutory damages or legal fees unless a US registration is effective before an act of infringement begins. Common defences include lack of personal jurisdiction, statute of limitations, absence of infringement based on non-substantial simi - larity of copyright-protectible elements, public domain, lack of copyrightable subject matter, scènes à faire, idea-expression merger, and statutory fair use. The applicability of the Copyright Act’s three- year statute of limitations and the reach-back period for damages was partially addressed for the first time by the US Supreme Court in 2024, which held that damages can cover a period of time extending back indefinitely beyond the three years from when an infringement suit is filed and is otherwise timely brought. Validity of the con - troversial “discovery rule” was not addressed by the Court but delayed until a future case. The “discovery” rule has been adopted by most federal appellate courts and allows a plaintiff to bring an infringement action within three years of when the plaintiff knew or, in the exercise of
reasonable diligence, should have discovered the infringement. Databases can be protected by copyright and/ or trade secret laws under both state and federal laws. Trade secrets are typically protected by confidentiality and non-disclosure agreements. Copyright does not protect facts, such that fac - tual data within a database cannot be protected; however, the original structure, sequence and organisation of a database (ie, the schema) can be protected if it is original. 5.3 Image Rights and Other IP There is legal recognition for name, image and likeness rights for individual athletes, but gener - ally only at the state level under statutory and common law rights of publicity. As this is gov - erned by the laws of 50 individual states, it is a complex area of US law. Some states do not recognise a right of publicity, while many others recognise such right by statute and/or common law. Some states also recognise a post-mortem right of publicity that extends beyond a per - son’s death and which can be enforced by the deceased person’s heirs. The rights of college athletes to be able to finan - cially exploit their own name, image and likeness (NIL) experienced a ground-breaking moment in 2021, when some new state laws and National Collegiate Athletic Association (NCAA) rules changes provided such athletes, for the first time, with the right to profit by licensing their NIL rights. In the past, NCAA rules prohibited col - lege athletes from accepting any such compen - sation as a condition of being able to compete as an “amateur” . Student athletes now have the opportunity to enter into endorsement and spon - sorship deals, and to earn revenue from social media posts. However, universities are prohib -
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