When does infringement actually happen?

Court Clarifies When a Copyright Infringement Claim Accrues

 

The Copyright Act states that a claim for copyright infringement must be brought within the statute of limitations. That time period, as set forth in the Act, is "within three years after the claim accrued." The courts have had difficulty in determining how to define when a claim "accrues."

  We have not as yet had any clear answer to this basic question. The various circuit courts are split on the issue and even the district courts within circuits do not show uniformity. The difficulty arises in determining whether the actions accrue at the time of the infringement, which is known as the "Injury Rule," for the time when the plaintiff or copyright owner knew or should have known about the infringement, which is called the "Discovery Rule." 

  This issue recently came up again in the United States District Court for the Southern District of New York, in Roberts v. Keith (March 7, 2006). The Court, in this case, stated that except for certain kinds of tolling or extension of the statute of limitations, the standard for determining accrual of infringement actions under the Copyright Act should be the Injury Rule.

A CONCLUSION

  The Court came to this conclusion after an analysis of the legislative history and court decisions, including the determination in 2004 of the Supreme Court of the United States in Auscape International v. National Geographic Society. The Court relied upon the Supreme Court's position, which seems to have tipped the balance away from the Discovery Rule, that had theretofore been the more prevalent one, to the Injury Rule. 

  The Court also rejected that plaintiff's claim of a "continuing infringement." This is the argument that an infringement of a given work, which commenced before the three- year period, ought to still be actionable if it is continuing and ongoing, as long as infringing activity occurred during the three-year look-back period as well. In other words, if the continuing acts occurred prior to and during the three-year period, then the infringement should be actionable, but only limited to damages during the current three years. The Court rejected this concept as not being the law. 

  The Court, in an interesting twist of fate, then ruled that the common law doctrine of tolling by fraudulent concealment applied, and tolled the statute because it found the complaint stated a cause of action that the defendant willfully and wrongfully concealed the infringement, which prevented the plaintiff's discovery of the claim within the three years, and plaintiff used due diligence to pursue the claim after discovery. In effect, the Court found sufficient pleadings to presume that the defendant deliberately lied to the plaintiff in order to conceal his infringement, and that there was no reason the plaintiff should have discovered these actions prior to the time he did. The claim was therefore permitted to proceed.

The Three-Year Rule

  Thus this case, if its reasoning is followed, would certainly limit infringement actions to those actually brought within three years of the infringement, even if the plaintiff does not discover it in time. The Court left open a loop hole, however, to permit such actions to be brought if there was deliberate fraud involved.

  There would appear to be open issues yet unresolved, and other courts will probably weigh in on the matter. The moral is to be aware of uses of your copyrighted material, and make sure you act expeditiously whenever an infringement or potential infringement is revealed. 

 

Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.

 

 

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