Copyright infringement case focuses on Illustration of Dante’s Inferno. BUNDY v. NIRVANA

A copyright is a set of exclusive rights granted to the creator of an original work of art when the art is fixed in a tangible form. The creator of an original work of art is granted the exclusive right to reproduce, distribute, display, perform, transmit and make derivative copies. Registering the work with the United States Copyright Office will strengthen the exclusive rights granted by copyright law, but is not necessary for a copyright to be granted. If someone other than the copyright owner exercises one of the exclusive rights granted by copyright law, that is considered copyright infringement. A copyright owner can sue to stop copyright infringement with an injunction and to get monetary damages for infringement which has occurred.

Several defenses are available to those accused of copyright infringement, including that the lawsuit was not filed within the statue of limitations. Statute of limitations is a statute prescribing a period of limitation for the bringing of certain kinds of legal action. In the United States a copyright infringement case must be filed with the court within three years after the claim accrued.” 17 U.S.C. §507(b). If the copyright owner waits too long to file sue the defendant can request that the court dismiss the infringement suit because it was filed outside the statute of limitations.

The question then becomes when does a copyright infringement claim accrue. Under the “discovery rule,” a copyright infringement claim accrues – and the statute of limitations begins to run – when a party discovers, or reasonably should have discovered, the alleged infringement. In addition to the discovery rule, the “separate-accrual
rule” in copyright law provides that when a defendant commits successive violations of the Copyright Act, the statute of limitations runs separately from each violation. Each time an infringing work is reproduced or distributed, the infringer commits a new wrong. Each wrong gives rise to a discrete ‘claim’ that ‘accrues’ at the time the wrong
occurs.

JOCELYN SUSAN BUNDY, vs. NIRVANA L.L.C., 2:21-cv-03621 (C.D.CA 2021) is an example of a case where the date a claim accrues will be very important.

Plaintiff in this case is the granddaughter of C.W. Scott-Giles. Plaintiff is the sole successor-in-title to the copyright in the works created by her late grandfather who died on February 8, 1982. One of the works created by Mr. Scott-Giles is an Illustration of Upper Hell as described by Italian philosopher and poet Dante Alighieri in his literary trilogy “The Divine Comedy.” Plaintiff’s copyrighted Illustration was first published in the United States in 1984. Plaintiff’s copyrighted work is reproduced above on the right.

Defendant is the entity that manages the business interests and activities of former rock band Nirvana, and that
handles and directly profits from the licensing and sale of Nirvana-branded merchandise. Sometime around 1989 Defendant became aware of Plaintiff’s Illustration and incorporated it into Defendant’s merchandise. Defendant frequently places a copyright notice on the merchandise which includes Plaintiff’s Illustration. As new merchandise is produced the copyright notice is changed to the year of production. In 2021, Plaintiff discovered Defendant’s activity and sent a cease and desist letter. Defendant first claimed that it owned the Illustration and then claimed that the Illustration was in the public domain. Plaintiff then filed suit against Defendant for copyright infringement.

The Statue of Limitations will be an important aspect of this case because of the length of time the alleged infringement has be going on. Defendant will have to plead that the statute has tolled, but given that the Defendant continues to sell merchandise which features Plaintiff’s illustration that will be a difficult argument. We will have to wait and see how the Defendant answers the complaint.

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