Statute of Limitations for Copyright
Is there a statute of limitations for copyright infringement?
Yes. You have three years in which to file a suit.
By Andrew Hudson Published: August 6, 2012 Updated: May 24, 2016
If you find an infringing use of your photo, the copyright statute of limitations (SOL) says that you have three years to file a claim — otherwise you’re, well, SOL.
“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)
What is a “statute of limitations”?
A statute of limitations is a time limit, written into the law, to ensure timely prosecution while the evidence is fresh.
“A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated.”
The concept dates to Roman law and is designed to protect the defense from old claims when evidence may be lost or obscure. However, the defendant must immediately assert the statute of limitations (SOL), otherwise it may be assumed to have been waived (and then the defendant is, well, SOL).
When does the clock start?
Good question. There is, unfortunately, no guidance in the copyright statute, other than “after the claim accrued” [USC 17 §507(b)]. Individual courts are left to decide this matter themselves.
Most courts follow the “discovery rule” which is when you actually discovered the infringement, or when you, as a reasonable and diligent person, should have discovered it. However, some courts use the “injury rule” which is when the last act of infringement occurred.
“… we hold that the federal discovery rule governs the accrual of civil claims brought under the Copyright Act.’”
— William A Graham Com v. Thomas Haughey, (3rd Cir. 2009)
“[Under the discovery rule, a] cause of action accrues ‘when the plaintiff discovers, or with due diligence should have discovered, the injury that forms the basis for the claim.’”
— Disabled in Action of Pennsylvania v. Se. Pennsylvania Transp. Auth., 539 F.3d 199, 209 (3d Cir. 2008) (quoting Romero v. Allstate Corp., 404 F.3d 212, 222 (3d Cir. 2005))
“Under the [Copyright] Act, the cause of action accrues when a plaintiff ‘knows or has reason to know of the act which is the basis of the claim.’”
— Cambridge Literary Properties, Ltd. v. W.Goebel Porzellanfabrik G.m.b.H. & Co. KG, 510 F.3d 77, 81 (1st Cir. 2007), quoting Santa-Rosa v. Combo Records, 471 F.3d 224, 227 (1st Cir. 2006))
“[a copyright claim accrues] when [the party] knew or had reason to know of the injury upon which the claim is based.”
— Jordan v. Sony BMG Music Entertainment Inc., 354 F.App’x. 942, 945 (5th Cir. 2009), (quoting Pritchett v. Pound, 473 F.3d 217, 220 (5th Cir. 2006))
“[T]he copyright statute of limitations starts to run when the plaintiff learns, or should as a reasonable person have learned, that the defendant was violating his rights.”
— Gaiman v. McFarlane, 360 F.3d 644, 653 (7th Cir. 2004)
“the statute of limitations begins to run when the plaintiff discovers, or with due diligence should have discovered, the injury which is the basis of the litigation.”
— Comcast of Illinois X v. Multi-Vision Electronics, Inc., 491 F.3d 938, 944 (8th Cir. 2007)
“the statute of limitations does not prohibit recovery of damages incurred more than three years prior to the filing of suit if the copyright plaintiff was unaware of the infringement, and that lack of knowledge was reasonable under the circumstances.”
— Polar Bear Productions, Inc. v. Timex Corp., 384 F.3d 700, 706 (9th Cir. 2004)
“[a]s in all statute of limitations inquiries, accrual will be later than the date of violation only to the extent that plaintiff exercised reasonable diligence but remained unaware of the violation.”
— Weber, 63 F.Supp.2d at 464
“[e]ach act of infringement is a distinct harm giving rise to an independent claim for relief.”
— Stone v. Williams, 970 F.2d 1043, 1049 (2d Cir. 1992).
“[I]n the absence of a contrary directive from Congress, we apply the federal discovery rule, which dictates that a federal cause of action accrues when the plaintiff discovers, or with due diligence should have discovered, the injury that forms the basis for the claim.”
— Romero, 404 F.3d at 222
“The discovery rule dictates that a cause of action accrues when a potential claimant discovers, or should have discovered, the injury that forms the basis of his claim.”
— Disabled in Action, 2008, quoting Romero, 404 F.3d at 222.