IP Law Daily, COPYRIGHT—E.D. Pa.: Prolonged break in infringing activity restarts the clock for statutory damages, (Nov 19, 2025)

By Matthew Hersh, J.D.

The court confronts a question previously undecided in the Third Circuit.

A fabric designer was entitled to seek statutory damages and attorney fees for copyright infringement that began well before she registered her work because the infringing activity had ceased for many years before starting up again after the registration, the federal court for Philadelphia has held. But the court, in wading into an area that has divided courts, underscored that the mere fact that the later infringement was of another type would not have been sufficient on its own, absent the prolonged cessation of infringement, to restart the statutory damages clock (Parry v. URBN US Retail LLC, No. 2:24-cv-01629-GAW (E.D. Pa. Nov. 17, 2025)).

The lawsuit arose out of a dispute between two fabric designers. Anna Maria Parry created and marketed a fabric design pattern named “Echinacea” in 2013. Three years later, in 2016, Flolashade Akanbi created a derivative of the design and uploaded it to her Instagram. Three events then took place in rapid succession in 2020 that set the stage for this lawsuit. First, in August of that year, Parry obtained a copyright registration for her work. Next, in mid-November of that year, Akanbi licensed her derivative design to Urban Outfitters to be used in connection with a set of pajamas that the clothing retailer planned to launch. Finally, just a few days after licensing the design from Akanbi, Urban Outfitters placed an order for the manufacture of the pajamas, which it eventually marketed within the United States.

Parry sued Urban Outfitters as well as Akanbi for copyright infringement. Urban Outfitters, the only defendant to appear in the action, moved for summary judgment on statutory damages and attorney fees. This opinion followed.

Entitlement to statutory damages. The court found that Parry was entitled to seek statutory damages and attorney fees in her action. Under Section 412 of the Copyright Act, 17 U.S.C. § 412, a plaintiff is not entitled to statutory damages and attorney fees for any infringement of copyright “commenced after first publication of the work and before the effective date of its registration.” Urban Outfitters argued that any infringing conduct in connection with the fabric design would have commenced when Akanbi first uploaded her derivative design to Instagram—well before Parry registered the design. Perry argued, in response, that Urban Outfitter’s licensing and manufacture of the design beginning in November 2020—months after the registration—essentially commenced a new set of copyright infringement for which statutory damages and attorney fees were appropriate. The district court, noting that the parties had raised “an interesting question not yet addressed by the Third Circuit,” sided with Parry.

The court, although finding for Parry at the end, began by rejecting one of her arguments. Akanbi infringed Parry’s right to make a derivative copy of her work when she created her own design based on Parry’s and displayed it on Instagram. Urban Outfitters, by contrast, engaged in far more extensive infringement of the design because it reproduced, manufactured, and then distributed Parry’s design. Parry, citing caselaw in the Ninth Circuit, Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 699 (9th Cir. 2008), argued that Urban Outfitter’s conduct was “of a different kind” and thus, in essence, constituted a new commencement of infringement. But caselaw in the Fifth Circuit, S. Credentialing Support Servs., L.L.C. v. Hammond Surgical Hosp., L.L.C., 946 F.3d 780, 782 (5th Cir. 2020), came out the other way on the same issue, the court noted—and the latter view was persuasive. “The plain language of Section 412 precludes recovery under Sections 504 and 505 for ‘any infringement of copyright’ in an unpublished work commenced prior to the registration of the copyright,” the court noted. “‘Any infringement of copyright’ reads most normally to mean ‘any kind of infringement.’” Parry’s argument would not succeed on this front.

But while Parry lost on this point, she prevailed on a different argument: the fact that there was a long time gap between Akanbi’s infringing activity in 2016 and Urban Outfitters’ infringing conduct in 2020. Indeed, the court noted, there was “strong statutory and precedential support for the view that prolonged cessation of the infringing activity may prevent a defendant from asserting the defense of continuing infringement.” To be sure, the court noted, Akanbi’s derivative design continued to be displayed on her Instagram account through the four-year time period. But as the Supreme Court explained in Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014), the court noted, separately accruing harm “should not be confused with harm from past violations that are continuing.” Here, the court emphasized, the fact that the Instagram post remained up meant only that Parry continued to be harmed by Akanbi’s infringement through 2020—not that Akanbi’s infringement was continuing through that time period. Urban Outfitters thus commenced infringement anew in 2020, the court concluded, entitling Parry to statutory damages and attorney fees if she prevails on the merits.

The Case is No. 2:24-cv-01629-GAW.

Judge: Weilheimer, G.

Attorneys: Ashley M. Robinson (Bradley Arant Boult Cummings, LLP) for Anna Maria Parry. Hazel Mae B. Pangan (Gordon Rees Scully Mansukhani, LLP) for Urbn US Retail LLC f/k/a Anthropologie, Inc. and Urban Outfitters, Inc.

Companies: Urbn US Retail LLC f/k/a Anthropologie, Inc.; Urban Outfitters, Inc.

Cases: Copyright PennsylvaniaNews GCNNews