Many aspects of copyright law are obscure and surprising, even to lawyers familiar with copyright’s peculiarities. An example of this is copyright law’s three-year statute of limitations.
The Copyright Act states that “no civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.” 17 U. S. C. §507(b). In the world of copyright practitioners this is understood to mean that so long as a copyright remains in effect and infringements continue, an owner’s rights are not barred by the statute of limitations. However, they may be limited to damages that accrued in the three years before the owner files suit. This is described variously as a “three-year look-back,” a “rolling limitations period” or the “separate-accrual rule.”
This is what allowed Randy Wolfe’s estate to sue Led Zeppelin in 2014 for an alleged infringement that began in 1971.
However, there is a nuance to this doctrine – what if the copyright owner isn’t aware of the infringement? Is the owner still limited to damages accrued in the three years before he files suit?
That is the scenario the Supreme Court addressed in Warner Chappell Music, Inc. v. Nealy (May 9, 2024).
Background Facts
Songwriter Sherman Nealy sued Warner Chappell in 2018 for infringing his music copyrights going back to 2008. Warner responded that under the “three year look-back” rule Nealy’s damages were limited to three years before he filed suit. Nealy argued that his damages period should extend back to 2008, since his claims were timely under the “discovery rule” – he was in prison during much of this period and only learned of the infringements in 2016.
Nealy lost on this issue in the district court, which limited his damages to the infringer’s profits during the 3 years before he filed suit. The 11th Circuit reversed, holding that Nealy could recover damages beyond 3 years if his claims were timely – meaning that the case was filed within three years of when Nealy discovered the infringement.
The Supreme Court Decision
The Supreme Court affirmed the 11th Circuit and resolved a circuit split, holding:
1 – The Copyright Act’s 3-year statute of limitations governs when a claim must be filed, not how far back damages can go.
2 – If a claim is timely, the plaintiff can recover damages for all infringements, even those occurring more than 3 years before suit. The Copyright Act places no separate time limit on damages.
However, lurking within this ruling is another copyright law doctrine that the Court did not address that could render its ruling in Nealy moot – that is the proper application of the “discovery rule” under the Copyright Act. Under the discovery rule a claim accrues when “the plaintiff discovers, or with due diligence should have discovered” the infringement. (Nealy, Slip Op. p. 2). Competing with this is the less liberal “occurrence” rule, which holds that, in the absence of fraud or concealment, the clock starts running when the infringement occurs. Under the discovery rule Nealy would be able to recover damages back to 2008. Under the occurrence rule his damages would be limited to the three years before he filed suit, since he does not allege fraud or concealment.
However, the question of which rule applies under the Copyright Act has never been addressed by the Supreme Court, and is itself the subject of a circuit split. The Court assumed, without deciding and solely for purposes of deciding the issue before it, that the discovery rule does apply to copyright claims. If the discovery rule applies Nealy has a claim to retroactive damages beyond three years. If it does not, Nealy’s damages would be limited to the three years before he filed suit.
Justice Gorsuch, joined by Justices Thomas and Alito, focused on this in his dissent, arguing the Court should not have decided the issue when the “discovery vs. occurrence” issue has not been addressed:
The Court discusses how a discovery rule of accrual should operate under the Copyright Act. But in doing so it sidesteps the logically antecedent question whether the Act has room for such a rule. Rather than address that question, the Court takes care to emphasize that its resolution must await a future case. The trouble is, the Act almost certainly does not tolerate a discovery rule. And that fact promises soon enough to make anything we might say today about the rule’s operational details a dead letter.
Clearly, in the view of at least three justices, if and when the discovery vs. occurrence rule issue comes before the Court it could decide against the discovery rule in copyright cases, rendering its decision on damages in the Nealy case, and cases like it, moot.
State of the Law Today
What does this all boil down to? Here are the rules as they exist today –
– A copyright owner has been aware of an infringing musical work for 20 years. She finally sues the infringer. Her damages are limited by the three year damages bar. They may be limited even further based on the laches doctrine.
– A copyright owner has been meditating alone in a cave in Tibet for 20 years. She’s had no access to information from the outside world. Upon her return she discovers that someone has been infringing her literary work for the last 20 years. Depending on whether the federal circuit applies the discovery or the occurrence rule, she may recover damages for the entire 20 period, or just the preceding three years. Her lawyers should do some careful forum shopping.
– A copyright owner discovers someone has secretly been infringing her copyright in computer source code for 20 years. The source code was non-public, and therefore the infringement was concealed. She may recover damages for the full 20 year period.
Implications
The decision is a win for copyright plaintiffs, allowing them to reach back and get damages beyond 3 years – assuming their claims are timely and they are in a circuit that apples the discovery rule. But the Court left the door open to decide the more important question of whether the discovery rule applies to the Copyright Act’s statute of limitations at all. If not, the window for both filing claims and recovering damages will shrink. When this issue will reach the Supreme Court is uncertain. However, the Court has the opportunity to take it up as soon as next term. See Hearst Newspapers, LLC v. Martinelli, No. 23-474 (U.S. petition for cert. filed Nov. 2, 2023). In the meantime, the outer boundary of damages is limited only by the discovery rule (if it apples), not any separate damages bar. Plaintiffs with older claims should take note, as should potential defendants doing due diligence on liability exposure.
Update: On May 20, 2024, the Supreme Court of the United States denied the petition for certiorari in Hearst Newspapers, L.L.C. v. Martinelli, thereby declining to decide whether the discovery rule applies to copyright infringement claims and leaving the rule intact.
Header image attribution: Resource by Nick Youngson CC BY-SA 3.0 Pix4free