Can an Infringer “Re-Commence” Copyright Infringement After Registration?

Posted by Steve Vondran | Aug 08, 2026

Can an Infringer “Re-Commence” Copyright Infringement After Registration? The Substantial-Gap Question Left Open by the Fifth Circuit

Under Section 412 of the Copyright Act, a copyright owner can lose access to statutory damages and attorney's fees when infringement begins before the effective date of copyright registration.

But what happens when the infringement stops?

Suppose an infringer uses a copyrighted photograph without permission, removes it completely, and seemingly ends the infringement. The copyright owner then registers the work.

Months—or perhaps years—later, the same defendant starts using the copyrighted work again.

Is the new infringement permanently tainted by the earlier pre-registration infringement?

Or can the defendant “re-commence” infringement after registration, potentially allowing the copyright owner to seek statutory damages and attorney's fees for the new infringement?

The Fifth Circuit left that fascinating question open in Southern Credentialing Support Services, L.L.C. v. Hammond Surgical Hospital, L.L.C., 946 F.3d 780 (5th Cir. 2020).

For copyright litigators, photographers, artists, software developers, website owners, content creators, and businesses with valuable intellectual property, this unresolved issue can have enormous financial consequences.

Start With Section 412 of the Copyright Act

The dispute begins with 17 U.S.C. § 412.

Section 412 generally prohibits an award of statutory damages and attorney's fees for:

“any infringement of copyright commenced after first publication of the work and before the effective date of its registration,”

unless the statutory exception concerning timely registration following first publication applies.

The critical word is “commenced.”

Congress did not say that statutory damages are unavailable merely for individual acts of infringement occurring before registration.

The statute focuses on when the infringement commenced.

That distinction creates a major problem when infringement begins before registration but continues afterward.

Why “Commencement” Matters

Consider a simple example.

A photographer owns a valuable photograph.

On January 1, Company X copies the photograph onto its website without permission.

On March 1, the photographer registers the copyright.

Company X continues displaying the photograph until December 31.

Can the photographer claim statutory damages based on the infringement occurring between March and December?

Generally, the answer is no if the defendant's conduct represents one continuing infringement that commenced on January 1.

Registration in the middle of an ongoing infringement does not ordinarily reset the clock.

That principle is well established in the Fifth Circuit through cases such as Mason v. Montgomery Data, Inc., 967 F.2d 135 (5th Cir. 1992) and Southern Credentialing.

But now change the hypothetical.

Company X removes the photograph on February 1.

The photographer registers the copyright on March 1.

Nothing happens for two years.

Then, on March 1 two years later, Company X launches a completely new advertising campaign and once again copies the photograph.

Now what?

That is a much more interesting question.

Southern Credentialing and the Continuing-Infringement Rule

In Southern Credentialing, the plaintiff developed credentialing materials used by a hospital.

The defendant began infringing those materials before the plaintiff registered its copyrights.

After registration, the infringement continued.

The plaintiff attempted to distinguish the later conduct because the post-registration activity implicated a different exclusive right under Section 106 of the Copyright Act.

In simplified terms, the argument was:

Before registration: reproduction.

After registration: distribution.

The plaintiff contended that the later violation of a different exclusive right should constitute a new commencement of infringement.

The Fifth Circuit disagreed.

The court concluded that a continuing course of infringement involving the same copyrighted work does not necessarily commence anew simply because the later conduct implicates a different exclusive right.

As a result, the plaintiff could not recover statutory damages for the continuing infringement.

But the Fifth Circuit included an important limitation in its analysis.

The Fifth Circuit Leaves the “Substantial Gap” Question Open

The facts in Southern Credentialing involved infringement that continued without interruption.

That mattered.

The Fifth Circuit expressly declined to decide what might happen if there were a meaningful interruption between the pre-registration infringement and the later post-registration conduct.

In other words, the court did not establish a rule that once a particular defendant infringes a particular copyrighted work before registration, that defendant is forever immune from statutory damages for every future infringement of that work.

Instead, Southern Credentialing leaves open an important question:

Can a sufficiently substantial gap between infringements cause a later infringement to constitute a new “commencement” under Section 412?

For copyright litigators, that is where things become interesting.

The Difference Between “Continued” and “Restarted”

The issue can be conceptualized as a distinction between two situations.

Situation One: Continuing Infringement

The defendant begins infringing before registration.

The infringement continues uninterrupted.

The copyright owner registers the work.

The defendant keeps doing essentially what it was already doing.

Under Southern Credentialing, the copyright owner faces a serious Section 412 problem.

The infringement commenced before registration.

Situation Two: Terminated and Restarted Infringement

The defendant begins infringing before registration.

The infringement completely stops.

The copyright owner registers the work.

A meaningful period passes.

The defendant later undertakes new infringing activity.

Now the question becomes:

Is the second episode merely another act in the original infringement—or is it a new infringement that “commenced” after registration?

That question can determine whether statutory damages and attorney's fees are available.

How Long Must the Gap Be?

Here is the frustrating answer:

There is no magic number.

Nothing in Southern Credentialing tells copyright lawyers that:

30 days is enough;
six months is enough;
one year is enough; or
two years is automatically enough.

The inquiry should not necessarily be reduced to a stopwatch.

The more meaningful question may be whether the later conduct represents a continuation of the original course of infringement or the beginning of a new and distinct episode of infringement.

Time is obviously relevant.

But time may not be the only factor.

Factors That Could Support Finding a New Commencement

Because Southern Credentialing leaves the substantial-gap issue unresolved, lawyers litigating the issue should develop the factual record carefully.

Several facts could support an argument that post-registration infringement represents a genuinely new commencement.

1. Complete Cessation of the Earlier Infringement

This may be the most important factor.

Did the defendant actually stop infringing?

There is a major difference between:

“The defendant's website temporarily went offline for maintenance.”

and:

“The defendant permanently removed the copyrighted material, confirmed cessation, and did not use the work again for two years.”

The more complete and deliberate the termination, the stronger the argument that the original infringement ended.

2. Length of the Gap

Duration should matter.

A two-day interruption probably looks different from a two-year interruption.

A plaintiff seeking statutory damages would likely emphasize a lengthy period during which:

no copies were distributed;
no public displays occurred;
no advertisements ran;
no products containing the work were sold;
no downloads were offered; and
no other infringement can be identified.

The longer the period of genuine non-infringement, the more plausible the argument that the original infringement ended.

3. A New Decision to Infringe

Intent may also provide useful evidence concerning whether the conduct constitutes a continuation or restart.

Suppose a company uses a photograph in a 2024 advertising campaign.

The campaign ends.

The image is removed.

Two years later, a new marketing director searches through archived company files, finds the photograph, and affirmatively selects it for an entirely new campaign.

Those facts look considerably different from a website that simply remained online continuously.

The plaintiff could argue that the second use resulted from a new volitional decision occurring after registration.

4. A New Advertising Campaign

Advertising cases provide a particularly good example.

Imagine:

Campaign One — 2024

Unauthorized photograph appears in print advertisements.

Campaign ends.

Campaign Two — 2026

Company creates new advertisements, new layouts, new copy, new media placements, and again selects the same photograph.

The defendant will argue that the same copyrighted work and same defendant are involved.

The plaintiff will argue that the 2026 campaign is not merely a continuation of the 2024 campaign.

It is a new exploitation of the copyrighted work.

That distinction could become critical under Section 412.

5. New Copies or Newly Created Materials

Another potentially important fact is whether the later infringement required the creation of new materials.

Compare these scenarios.

Scenario A

An infringing PDF remains continuously available at the same URL before and after registration.

That strongly resembles continuing infringement.

Scenario B

The original PDF is permanently removed.

Eighteen months later, the defendant creates a new brochure, inserts the copyrighted photograph into it, uploads a new PDF, and distributes thousands of copies.

The plaintiff has a much stronger argument that the later conduct represents a new commencement.

6. Different Platforms or Distribution Channels

The method of exploitation could also become relevant—not because merely violating a different Section 106 right automatically creates a new commencement, which Southern Credentialing rejects, but because changed circumstances may provide evidence that the later conduct represents a separate course of activity.

For example:

Original infringement: photograph used on a website.

Infringement stops.

Copyright is registered.

Two years later: photograph is placed on product packaging sold nationwide.

The change in medium alone may not resolve the Section 412 issue.

But when combined with complete cessation, a significant time gap, and a new business decision, it strengthens the argument that the later infringement is genuinely separate.

7. Different Products

Suppose a copyrighted graphic originally appears on a T-shirt.

The defendant stops selling the shirt.

The copyright owner registers the graphic.

Three years later, the defendant places the graphic on:

coffee mugs;
posters;
hats;
stickers; and
product packaging.

The defendant might characterize everything as exploitation of the same copyrighted graphic.

The plaintiff might characterize the later activity as an entirely new merchandising program.

Again, the factual characterization could have major consequences.

8. A Cease-and-Desist Letter Followed by Actual Compliance

This could create particularly interesting evidence.

Imagine the following chronology:

January 2024: Infringement begins.

February 2024: Copyright owner sends cease-and-desist letter.

March 2024: Defendant complies and removes everything.

April 2024: Copyright owner registers the work.

April 2024 through December 2025: No infringement occurs.

January 2026: Defendant begins using the work again.

The plaintiff now has a compelling factual argument.

The defendant did not simply continue infringing.

It:

received notice;
stopped;
remained compliant for a substantial period; and
later made a new decision to use the work.

Those facts may support the characterization of the later activity as a new commencement.

They could also become relevant to willfulness.

The Defendant's Counterargument: One Work, One Infringing Relationship

The defense will have arguments too.

A defendant may contend that courts should interpret Section 412 broadly enough to preserve Congress's incentive for prompt registration.

The defendant might argue:

The plaintiff chose not to register the work before this defendant began infringing it. The plaintiff should not obtain statutory damages merely because the defendant temporarily stopped and later resumed exploiting the same work.

The defense could emphasize:

same defendant;
same copyrighted work;
same unauthorized copy;
same business purpose;
same customer audience;
same website or distribution system;
same underlying transaction; and
evidence that the defendant always intended to resume the activity.

The defense would characterize the gap as merely a pause rather than termination.

That vocabulary may become important.

Plaintiff's Counterargument: “Commenced” Cannot Mean “Forever”

The copyright owner's response is potentially powerful.

Section 412 uses the word “commenced.”

If infringement completely ends, there is a textual argument that a later, independent infringement must itself have a commencement date.

Otherwise, the first infringement by a particular defendant could effectively establish a perpetual Section 412 safe harbor for that defendant.

Consider an extreme example.

A defendant infringes a photograph once in 2010.

The infringement ends immediately.

The photographer registers the copyright in 2011.

Nothing happens for fifteen years.

In 2026, the defendant copies the photograph again for an entirely unrelated commercial campaign.

Should the defendant really be able to say:

“We first infringed this photograph sixteen years ago before registration, so statutory damages can never apply to us?”

That result would be difficult to reconcile with an ordinary understanding of separate episodes of conduct.

At some point, a plaintiff can argue, the original infringement ended.

And if it ended, subsequent infringement must have begun.

The question is where courts draw that line.

This Could Become a Major Discovery Issue

The substantial-gap question also illustrates why discovery in copyright cases should examine more than the dates visible on a website.

Counsel may want discovery concerning:

when infringing files were created;
when they were deleted;
when they were restored;
who authorized the original use;
who authorized the later use;
whether separate marketing campaigns existed;
whether separate purchase orders were issued;
whether new copies were manufactured;
whether different vendors were involved;
whether the defendant believed the original dispute had been resolved;
whether the defendant received a cease-and-desist letter;
whether the defendant represented that infringement had ceased;
when new employees became involved; and
what internal communications preceded the later use.

Server logs, content-management records, cloud-storage histories, emails, Slack messages, marketing calendars, invoices, print orders, and metadata could become highly relevant.

The issue may ultimately depend less on abstract copyright doctrine and more on reconstructing exactly what happened between Episode One and Episode Two.

Build an Infringement Timeline

One practical litigation technique is to create a detailed infringement timeline.

For example:

Date	Event
January 2024	First infringement begins
February 2024	Copyright owner discovers infringement
March 2024	Cease-and-desist letter sent
April 2024	Defendant removes copyrighted work
May 2024	Copyright registration effective
May 2024–December 2025	No known infringement
January 2026	New advertising campaign begins
February 2026	New infringement discovered
March 2026	Copyright lawsuit filed

This timeline immediately frames the issue:

Did the January 2026 infringement “commence” in January 2026, or is it legally treated as part of the infringement that began in January 2024?

That may be a question worth substantial money.

The Stakes: Up to $150,000 Per Work for Willful Infringement

Why fight so intensely over one word?

Because statutory damages can be substantial.

Under 17 U.S.C. § 504(c), statutory damages generally range from $750 to $30,000 per infringed work.

Where infringement is proven to be willful, the court may increase statutory damages to as much as $150,000 per work.

Section 412 can determine whether those statutory remedies are available at all.

Attorney's fees may also be at stake.

That means a dispute about whether infringement “re-commenced” can radically change:

potential damages;
settlement value;
litigation strategy;
discovery strategy;
mediation positions; and
willingness of counsel to take a case.

The Willfulness Issue Could Be Especially Significant

The restart scenario can create another problem for defendants.

Suppose a defendant infringes.

The copyright owner sends a demand letter.

The defendant removes the work.

The owner registers the copyright.

Two years later, the defendant knowingly uses the same work again.

If the second infringement qualifies as a new post-registration commencement, the copyright owner may have arguments not merely for statutory damages—but potentially enhanced statutory damages based on willfulness.

The prior demand letter could become evidence that the defendant knew about the copyright owner's claim before beginning the second episode of infringement.

Thus, the same facts establishing separation between the two episodes could potentially strengthen the plaintiff's willfulness argument.

Copyright Owners Should Register During the Gap

There is also an important practical lesson here.

Suppose infringement begins before registration but then stops.

The copyright owner should not assume:

“The damage is already done, so registration doesn't matter anymore.”

That may be exactly the wrong conclusion.

If there is a genuine cessation of infringement, registration during that gap could become extremely valuable if the defendant later resumes infringement.

The copyright owner may eventually argue:

The original infringement ended. We registered the copyright. The defendant subsequently began a new infringement after registration. Section 412 therefore does not bar statutory damages for the later episode.

Whether that argument succeeds will depend on the governing law and facts.

But without registration, the argument may never arise.

Evidence of Cessation Should Be Preserved

Take screenshots.

Save correspondence.

Preserve emails.

Record dates.

Document URLs.

Save Wayback Machine evidence where appropriate.

Keep copies of cease-and-desist correspondence.

Preserve written assurances from defendants.

If a defendant says:

“We have removed all copyrighted material and will not use it again,”

save that communication.

If the defendant begins infringing two years later, that statement could become highly significant evidence that the first course of infringement had actually terminated.

Defendants Should Also Think Carefully Before Restarting Use

The lesson runs both ways.

A defendant who has resolved a copyright dispute should not casually assume that restarting use of the same material simply revives the old dispute under the same damages limitations.

A later infringement may create materially different exposure.

This is particularly true where:

the copyright has since been registered;
the defendant received prior notice;
the original infringement clearly stopped;
significant time has passed; and
the new infringement results from a fresh business decision.

A company that previously escaped statutory damages because of Section 412 should not assume that protection lasts forever.

The Question the Fifth Circuit Has Yet to Answer

The unresolved issue can ultimately be stated simply:

When does a pause become an ending?

Southern Credentialing tells us that uninterrupted infringement does not commence anew merely because registration occurs or because later conduct implicates a different exclusive right.

But the Fifth Circuit did not decide what happens when the original infringement genuinely ends and a substantial period separates it from later infringement.

That leaves future litigants to fight over the line between:

continuation

and

re-commencement.

A Potential Multi-Factor Framework for Courts

Although Southern Credentialing does not establish a formal multi-factor test, litigators confronting the issue could organize their arguments around several practical considerations:

Duration of the interruption — How much time passed between the two episodes?
Completeness of cessation — Did all infringement actually stop?
Reason for cessation — Did the defendant intentionally terminate the activity, or was the interruption accidental or temporary?
New volitional conduct — Did restarting infringement require a new affirmative decision?
Nature of the later exploitation — Was the later use part of a new campaign, product, publication, or project?
Continuity of materials — Were the same physical or digital copies continuously maintained, or were new copies created?
Business continuity — Did the later infringement serve the same transaction, campaign, customers, or business objective?
Intervening communications — Did cease-and-desist letters, settlement communications, takedown notices, or assurances of compliance separate the two episodes?
Registration timing — Did registration become effective during a genuine period of non-infringement?
Relationship between the episodes — Viewed practically, does the later conduct look like continuation of an existing infringement or the beginning of a new one?

Again, these are analytical considerations, not a Fifth Circuit test established in Southern Credentialing.

That distinction is important.

The Best Fact Pattern for a Copyright Plaintiff

The strongest plaintiff-side substantial-gap case might look something like this:

2019: Defendant infringes.

2020: Defendant receives notice and completely stops.

2020–2025: No infringement.

2025: New management launches a new product.

2025: Someone retrieves the copyrighted work from an archive.

2025: Defendant creates new copies and begins a new commercial campaign.

Those facts give the plaintiff a powerful argument:

This isn't one continuous infringement stretching from 2019 through 2025.

The 2019 infringement ended.

The 2025 infringement began.

And when it began, the copyright was already registered.

The Harder Case

Now consider:

Monday: Defendant infringes.

Tuesday: Website temporarily goes offline.

Wednesday: Copyright registration becomes effective.

Thursday: Website comes back online with the same infringing content.

The plaintiff may technically identify a period when the infringement was not publicly accessible.

But calling Thursday's conduct a brand-new infringement for Section 412 purposes would be much more difficult.

The defendant would characterize the interruption as operational rather than substantive.

This illustrates why the concept of a “substantial gap” probably involves more than simply proving that there was some moment when infringement was not occurring.

The nature and circumstances of the interruption matter.

Final Takeaway: The First Infringement May Not Control Forever

The Fifth Circuit's decision in Southern Credentialing Support Services v. Hammond Surgical Hospital provides an important rule but also leaves copyright litigators an important opening.

The rule is:

Registering a copyright in the middle of an uninterrupted course of infringement does not ordinarily transform subsequent acts into a new commencement eligible for statutory damages.

But the unresolved question is equally important:

What if the infringement actually ends, the copyright is registered, and the defendant later begins infringing again?

Southern Credentialing did not decide that issue.

That means future cases may turn on whether counsel can demonstrate a genuine break between two episodes of infringement.

For plaintiffs, the litigation theme may be:

“It stopped. We registered. They started again.”

For defendants:

“It never truly ended. This was one continuing course of conduct.”

Those competing narratives may determine whether the plaintiff is limited to actual damages and profits or can pursue the Copyright Act's powerful statutory-damages remedy.

And where the defendant resumed infringement after receiving actual notice of the copyright owner's rights, the stakes could become even higher.

The practical lesson for copyright owners remains the same:

Register early.

But if infringement has already occurred and then stops:

Register now.

Because if the infringer comes back, the question may no longer be when the defendant first infringed.

The question may be when the defendant commenced infringing again.

Key Case

Southern Credentialing Support Services, L.L.C. v. Hammond Surgical Hospital, L.L.C., 946 F.3d 780 (5th Cir. 2020).

See also Mason v. Montgomery Data, Inc., 967 F.2d 135 (5th Cir. 1992).

Relevant statutes include 17 U.S.C. §§ 106, 412, 504 and 505.

Attorney Steve® Copyright Law Tip

If you discover infringement before your work has been registered, speak with copyright counsel about registration immediately—even if the infringer has already stopped.

A genuine period of cessation followed by registration and a later new episode of infringement may present materially different Section 412 issues than an uninterrupted infringement that simply continues across the registration date.

Document the cessation carefully. Preserve screenshots, correspondence, takedown confirmations, website records, advertisements, product listings, and other evidence establishing when the first episode ended and when any later episode began.

In a future copyright lawsuit, the timeline could determine whether statutory damages and attorney's fees are potentially available.

This article is provided for general educational and informational purposes only and does not constitute legal advice. Copyright remedies are highly fact-specific, and courts may differ in their interpretation and application of 17 U.S.C. § 412.

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