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Journal of Intellectual Property Law

Abstract

There is a split between the Second Circuit and the Ninth and Eleventh Circuits over the interpretation and application of the Copyright Act’s three-year statute of limitations. The disagreement is about whether it bars a copyright infringement plaintiff from recovering for infringing acts occurring outside the statute’s three-year window. The Second Circuit stated in 2020 in Sohm v. Scholastic that the U.S. Supreme Court explicitly delimited damages to the three years prior to the commencement of an infringement action. However, the Ninth Circuit in Starz Entertainment in 2022 and the Eleventh Circuit Nealy v. Warner Chappell Music in 2023 both held that so long as a plaintiff brings suit within three years of discovering infringing acts, it may seek damages regardless of when those acts occurred.

The Supreme Court recently granted certiorari in Nealy v. Warner Chappell Music to resolve the following question:

Whether, under the discovery accrual rule applied by the circuit courts and the Copyright Act’s statute of limitations for civil actions, 17 U.S.C. § 507(b), a copyright plaintiff can recover damages for acts that allegedly occurred more than three years before the filing of a lawsuit.

This circuit split presents an ideal opportunity for the nation’s highest court to resolve an important question concerning how the Copyright Act should be interpreted. The heart of this split is disagreement over how courts should read and apply the U.S. Supreme Court’s 2014 decision in Petrella v. MGM. That decision concerned rights in the award-winning movie Raging Bull, the equitable defense of laches, and how that defense relates to copyright’s statute of limitations.

The Second Circuit stated in Sohm that Petrella limits claims to “a three-year lookback period from the time the suit is filed to determine the extent of the relief available.” This means that “a plaintiff’s recovery is limited to damages incurred during the three years prior to filing suit.” In contrast, the Ninth Circuit stated in Starz Entertainment v. MGM Domestic Television that “[n]either the text of the Copyright Act nor Petrella imposes a three-year damages bar in a discovery rule case.” Similarly, the Eleventh Circuit in Warner Chappell Music was unwilling to read Petrella as creating a three-year lookback period or a damages cap.

This Article’s thesis is that the U.S. Supreme Court, in resolving this circuit split, should agree with the Second Circuit’s holding in Sohm v. Scholastic that limits the plaintiff’s damages to the three-year lookback period from the time the suit was filed. The Article discusses the Copyright Act’s statute of limitations, actions that trigger the running of this statute of limitations, and the U.S. Supreme Court’s Petrella decision. It then analyzes the Second Circuit’s approach to the underlying issue followed by an analysis of the Ninth and Eleventh Circuit approaches. The Article’s last section concentrates on why the split should be resolved to align with the Sohm decision. This outcome is based on the author’s reading of Petrella, the legislative history of the Copyright Act’s statute of limitations, and statements made by the U.S. Supreme Court and other courts in opinions dealing with similar issues involving damages and statutes of limitations for several different causes of action.

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