Copyright Infringement – Time Limits to Bring Claims
For a party to bring a cause of action for federal copyright infringement, the cause of action must be brought within three years. But what does that mean? When is the start date? Is there “tolling”? This blog discusses some of the topics related to this concept.
Federal statute – U.S. Copyright Law [General Rule]
Section 507(b) of the copyright law states: No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued. A cause of action for copyright infringement accrues when one has knowledge of a violation or is chargeable with such knowledge. Wood v. Santa Barbara Chambers of Commerce, Inc., 507 F.Supp. 1128, 1135 (D.Nev.1980). This interpretation is consistent with the prevailing view that the statute bars recovery on any claim for damages that accrued more than three years before commencement of suit. See Roley v. New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir. 1994).
Damages that occur outside the three year window (but suit filed within three years)
In Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 705–06 (9th Cir. 2004), the federal court noted:
In copyright litigation, the statute of limitations issue that often arises is that the plaintiff filed its copyright claim more than three years after it discovered or should have discovered infringement. Here, Timex makes a different, novel argument and asks us to rule that § 507(b) prohibits copyright plaintiffs from obtaining any damages resulting from infringement occurring more than three years before filing the copyright action, regardless of the date the plaintiff discovered the infringement. In Kling v. Hallmark Cards, Inc., 225 F.3d 1030, 1041–42 (9th Cir.2000), we left for another day precisely this argument; that day is now upon us. We conclude that § 507(b) permits damages occurring outside of the three—year window, so long as the copyright owner did not discover—and reasonably could not have discovered—the infringement before the commencement of the three–year limitation period. Because Polar Bear did not discover Timex's infringement until within three years of filing suit, Polar Bear may recover damages for infringement that occurred outside of the three– year window.
Date of the last infringing act
In copyright infringement actions, the period of limitation begins on the date of the last infringing act. Baxter v. Curtis Industries, Inc., 201 F.Supp. 100 (N.D.Ohio 1962). The trial record reflects the unauthorized duplication of legitimate copyrighted tapes in the same year of the indictment, thereby satisfying the three year Statute of Limitations. See United States v. Shabazz, 724 F.2d 1536, 1540 (11th Cir. 1984)
When does a Plaintiff learn about Copyright Infringement? [The Discovery Rule vs. Injury Rule]
in another case, a federal court noted: Defendant also moves to dismiss the Amended Complaint as time-barred. In the Eleventh Circuit, dismissal on statute of limitations grounds is appropriate “if it is apparent from the face of the complaint that the claim is time-barred.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir.2004). The Federal Copyright Act states, “ 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). There are two tests for when the statute of limitations begins to run in copyright cases. The majority of federal courts use the “discovery rule. See Roger Miller Music, Inc. v. Sony/ATV Publ'g, LLC, 477 F.3d 383, 390–91 (6th Cir.2007); Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 706–707 (9th Cir.2004); Gaiman v. McFarlane, 360 F.3d 644, 653 (7th Cir.2004); Lyons P'ship, L.P. v. Morris, 243 F.3d 789, 796 (4th Cir.2001); Stone v. Williams, 970 F.2d 1043, 1048 (2d Cir.1992). The minority follow the “injury rule.” See, e.g., Auscape Int'l v. Nat'l Geographic Soc'y, 409 F.Supp.2d 235, 242–48 (S.D.N.Y.2004). Under the discovery rule, a copyright infringement cause of action accrues when a copyright owner knew or should have known of the alleged infringement. Under the injury rule, the statute of limitations begins to run when the alleged infringement occurred. The Eleventh Circuit has not explicitly adopted either the majority or the minority position in the civil copyright infringement context. However, in deciding a 42 U.S.C. § 1983 case, the Eleventh Circuit has held, “ A federal claim is generally considered to accrue when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Corn v. City of Lauderdale Lakes, 904 F.2d 585, 588 (11th Cir.1990). A concurring Eleventh Circuit opinion applied the discovery rule to an infringement action. Calhoun v. Lillenas Pub., 298 F.3d 1228, 1236 (11th Cir.2002) (Birch, J., concurring) (“ The limitations period may be triggered when a plaintiff knows or, in the exercise of reasonable diligence, should have known about an infringement.”). Moreover, cases in the Southern and Middle Districts of Florida have applied the discovery rule in copyright infringement cases. Lorentz v. Sunshine Health Prods., Inc., No. 09–61529–civ, 2010 (S.D.Fla. Aug. 27, 2010); Thornton v. J Jargon Co., 580 F.Supp.2d 1261, 1284–85 (M.D.Fla.2008); Tingley Sys., Inc. v. HealthLink, Inc., 509 F.Supp.2d 1209, 1218 (M.D.Fla.2007). Given the weight of authority supporting the discovery rule, and determining it to be the better practice, this Court applies the discovery rule to the instant case and finds that the statute of limitations period began to run when Plaintiff learned of or, in the exercise of reasonable diligence, should have learned of Defendant Arquitectonica's alleged infringement. “Should have learned,” means whether a reasonably prudent person in Plaintiff's position would have become aware of the alleged infringement. McTigue, 531 F.3d at 44; Stone, 970 F.2d at 1048. “A reasonably prudent person is charged with a duty of diligence.” Luar Music Corp. v. Universal Music Group, Inc., 847 F.Supp.2d 299, 309 (D.P.R.2012) (citing McTigue, 531 F.3d at 44). A plaintiff is put on notice and the statute of limitations begins to run once a plaintiff “possesses information fairly suggesting some reason to investigate whether he may have suffered an injury at the hands of a putative infringer.”
See Sieger Suarez Architectural P'ship, Inc. v. Arquitectonica Int'l Corp., 998 F. Supp. 2d 1340, 1354–55 (S.D. Fla. 2014), appeal dismissed (Sept. 5, 2014)
What about ‘continuing' copyright violations
In a case of continuing copyright infringements, an action may be brought for all acts that accrued within the three years preceding the filing of the suit. Baxter v. Curtis Indus., Inc., 201 F.Supp. 100, 101 (N.D.Ohio 1962); see also Kalem Co. v. Harper Bros., 222 U.S. 55, 61–62, 32 S.Ct. 20, 21, 56 L.Ed. 92 (1911); Hampton v. Paramount Pictures Corp., 279 F.2d 100, 105 (9th Cir.1960); *482 Universal Pictures Co. v. Harold Lloyd Corp., 162 F.2d 354, 365 (9th Cir.1947); Cain v. Universal Pictures Co., 47 F.Supp. 1013, 1017–18 (S.D.Cal.1942). See Roley v. New World Pictures, Ltd., 19 F.3d 479, 481–82 (9th Cir. 1994).
Can copyright infringement actions be “tolled?
The copyright infringement statute of limitations may be equitably tolled if justified under the circumstances. See Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515 (9th Cir.1983). See Kregos v. Associated Press, 795 F. Supp. 1325, 1330 (S.D.N.Y. 1992), aff'd, 3 F.3d 656 (2d Cir. 1993). In another case a federal court held:
The Doctrine of Equitable Tolling would be inappropriate to apply here given the facts as alleged. See Podobnik v. United States Postal Service, 409 F.3d 584, 591 (3d Cir.2005)(noting that the doctrine of equitable tolling should be applied “sparingly” to stop a statute of limitations period from running). The Third Circuit has stated that there are three principle situations in which equitable tolling might be appropriate: (1) where the defendant has actively misled the plaintiff respecting the plaintiff's cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights in the wrong forum. Plaintiff has not alleged facts to support any of these circumstances, and thus there is no basis to equitably toll the limitations period in Plaintiff's claim. See id. (“Appellant bears the burden of proving that the equitable tolling doctrine applies here.”). See Hunter v. Squirrel Hill Associates, L.P., 413 F. Supp. 2d 517, 521 (E.D. Pa. 2005).
Fraudulent Concealment may toll the statute of limitations
In any event, there is no doubt that the copyright statute of limitations is tolled by “fraudulent concealment” of the infringement. See, e.g., Prather v. Neva Paperbacks, Inc., 446 F.2d 338, 340–41 (5th Cir.1971); Charlotte Telecasters, Inc. v. Jefferson-Pilot Corp., 546 F.2d 570, 573–74 (4th Cir.1976). Although these are not decisions under the 1976 Copyright Act, the statute of limitations in that Act was taken without material change from the one that had been added to the previous Act in 1957. See Act of Sept. 7, 1957, Pub.L. 85–313, 71 Stat. 633; H.Rep. No. 1476, 94th Cong., 2d Sess. 164 (1976), U.S.Code Cong. & Admin.News 1976, p. 5659. The term “fraudulent concealment” implies active misconduct, but there was that here. Meirick had put his own copyright notice on his copies of Taylor's maps. This was calculated to throw purchasers, and Taylor himself, off the scent; only a close inspection of Meirick's maps would have revealed that they were copies. Modern maps of the same area resemble each other closely—it would be most unsettling if, like medieval maps, they did not! The features that made Taylor's maps copyrightable—and we repeat that the validity of his copyrights is not contested—were subtle and would easily escape notice with another's name affixed as copyright holder. See Taylor v. Meirick, 712 F.2d 1112, 1118 (7th Cir. 1983).
Copyright & Laches
When a claim for copyright infringement is brought within the statute of limitations period, there is a strong presumption that there is no unreasonable delay. See Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 997 (9th Cir.2006) (holding that if a plaintiff “files suit within the applicable period of limitations for his claim, there is a strong presumption that laches does not bar the claims”); Novell, Inc. v. Unicom Sales, Inc., (N.D.Cal.2004) (applying the “strong presumption” that laches does not apply to a copyright claim filed within the applicable limitations period). Only in unusual circumstances will an action filed within the statutory period be considered a sufficiently unreasonable delay to permit a laches defense. See Danjaq LLC v. Sony Corp., 263 F.3d 942, 950–54 (9th Cir.2001) (finding that laches defense applied when re-released DVD material was identical in nature to an original infringing work and that although the statute of limitations would permit the lawsuit, the thirty-six year time lapse from the initial infringement was an unreasonable delay sufficient to support a laches defense). See Oracle USA, Inc. v. Rimini St., Inc., 6 F. Supp. 3d 1108, 1127 (D. Nev. 2014), order clarified sub nom. Oracle USA, Inc. v. Rimini St., Inc.., No. 210-CV-00106-LRH-PAL, 2014 WL 5285963 (D. Nev. Oct. 14, 2014).
Contact an Intellectual Property Law Firm
Our firm has helped many individuals and small and mid sized business bring and defend against claims of willful copyright infringement. This includes using a photo on a website, infringing against rights of publicity, allegations of software piracy by the business software alliance or SIIA, Autodesk, Microsoft, Siemens, Vero, Adobe, or other copyright rights holder. We handle a wide variety of federal copyright and trademark cases nationwide including . Call us at (877) 276-5084. We offer low flat rate fee for most non-litigation cases.