What’s the Latest on the Statute of Limitations in Copyright Litigation after Petrella & Sohm

The statute of limitations in copyright litigation appears to be deceptively simple. 17 U.S.C. § 507(b) states an infringement claim must be “commenced within three years after the claim accrued.”

But when does a claim accrue: when the infringement is committed or when it is discovered or should reasonably have been discovered?

Further, assuming an infringement claim is timely brought how far back in time can plaintiff go to collect damages? In the past, a plaintiff in the Second Circuit could go back years in time so long as plaintiff sued within three years of when it discovered or should have discovered the infringement. But a recent Second Circuit case, Sohm v. Scholastic Inc., 959 F.3d 39 (2d Cir. 2020), applying dicta in a Supreme Court case, Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, (2014), limited the damage lookback period to three years from the date the action was commenced. Other district courts in Ohio and Florida have done the same. But district courts in New Hampshire and California disagree, refusing to limit damages to that three year window. The California case is now awaiting decision by the Ninth Circuit. Will the Ninth Circuit impose a three-year lookback damage limitation? And what about claims for co-ownership or co-authorship, when do they accrue?

For answers to these questions, please see the Primer on the Statute of Limitations After Petrella and Sohm in the Copyright Learning Center.