Corporate Counsel Daily, Supreme Court officially leaves copyright statute of limitations in limbo, (May 21, 2024)

By Matthew Hersh, J.D.

Just weeks after assuming that the discovery rule applied, the court refuses to decide that very issue.

The Supreme Court will not decide whether the statute of limitations for copyright infringement actions begins to run at the time the infringement claim accrued or the time that the infringement is discovered, the Court has announced. The Court’s decision officially leaves open a question that it expressly assumed, but declined to decide, when deciding another statute of limitations case just two weeks ago (Hearst Newspapers L.L.C. v. Martinelli , No. 23-474 (U.S. May 20, 2024)).

The decision puts a capstone—and for many copyright law acolytes, an unfortunate one—on a debate that was reopened two weeks ago with the issuance of the Court’s opinion in Warner-Chappell Music, Inc. v. Nealy, No. 22-1078 (U.S. May 9, 2024). In that case, the Court dealt with the tricky question of how far back a copyright owner can seek damages when bringing a lawsuit made timely by the discovery rule. There, a copyright owner claimed that Warner-Chappell had been infringing his works since 2008, but he did not discover the infringement until 2016 and he did not bring his lawsuit until 2018. The Supreme Court assumed, without deciding, that the copyright owner was entitled to invoke the “discovery rule” to make his complaint timely. The Court then went on to decide, resolving a circuit split, that because the lawsuit was timely, the copyright owner was entitled to seek damages going all the way back to the time the copyright infringement started—rather than being limited to the three years before the filing of the complaint.

But the Court’s decision in Nealy was immediately greeted with concern that it would be overtaken by a different petition for certiorari. That petition, brought by Hearst Newspapers, squarely presented the question on which Nealy was predicated: did the Copyright Act incorporate a discovery rule? In that case, a photographer claimed that various Hearst publications appropriated his work without permission. Hearst sought summary judgment on the claim on grounds that it was time-barred. But the Fifth Circuit, applying the discovery rule, sided with the photographer. Notably, in bringing the dispute to the Court, Hearst acknowledged that the Court had already decided to hear the Warner-Chappel case—but it argued that the underlying question was the more important. “The circuit split at issue in Warner Chappell Music is the symptom—not the problem,” the petition urged. In light of the Court’s decision this week, that “problem” is likely to remain on the books for some time.

The Case is No. 23-474.

Attorneys: Jonathan R. Donnellan (Hearst Corp.) for Hearst Newspapers L.L.C. Craig Benjamin Sanders (Sanders Law Group) for Antonio Martinelli.

Companies: Hearst Newspapers L.L.C.

News: Copyright GCNNews