17 U.S.C. § 507(b), the copyright litigation statute of limitations appears to be deceptively simple. It requires an infringement claim to be “commenced within three years after the claim accrued.”
But when does a claim accrue: when the infringement is committed, even though you know nothing about it or when it is discovered or should reasonably have been discovered?
Further, assuming an infringement claim is timely brought within three years of accrual, how far back in time can plaintiff go to collect damages? That now depends on what jurisdiction you are in.
In the past, courts applying what’s called the discovery rule permitted you to go back for an unlimited time so long as you could demonstrate you could not have discovered the infringements earlier and sued within three years of when you discovered or should have discovered the infringement.
But Sohm v. Scholastic Inc., 959 F.3d 39 (2d Cir. 2020), applying ambiguous dicta from a Supreme Court case, Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, (2014), limited the period during which damages could be collected to three years from the date the action was commenced (referred to as “the three-year lookback damage limitation”). Thus, it is possible that a timely action brought within three years of discovery of the infringement will result in no monetary recovery if the infringement ended more than three years from filing of the complaint.
More recently to add to the uncertainty, Starz Ent., LLC v. MGM Domestic Television Distrib., LLC, 39 F.4th 1236 (9th Cir. 2022), refused to follow Sohm, rejecting the three-year lookback damage limitation because it “would eviscerate the discovery rule.” Id. at 1244.
At present the district courts have gone in different directions. Some, following Sohm, limit damages to those occurring within three years of litigation. See Navarro v. Procter & Gamble Co., 515 F.Supp.3d 718, 760-61 (S.D. Ohio 2021). Others, following Starz, have refused to adopt that limitation. See AMO Dev., LLC v. Alcon Vision, LLC, 2022 U.S. Dist. LEXIS 219368, *10-11 (D. Del. Dec. 6, 2022). Hopefully the Supreme Court will clarify.
The Primer on the Statute of Limitations After Petrella, Sohm and Starz in the Copyright Learning Center discusses these developments in the statute of limitations mapping the arguments on both sides of the fence. This primer also discusses the statute of limitations for claims for co-ownership or co-authorship. Take a look and hope you find this primer a useful roadmap.