When does the statute of limitations begin for copyright infringement?

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) A claim for copyright infringement accrues when the owner of the copyright knows or should have known of the infringement. 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. In the case of copyrighted material embodied in tangible objects, it is relatively easy to figure out. A claim would accrue when one of the copyright owners exclusive rights were infringed upon. For instance if a record was copied without permission, the statute of limitations would run from the date of reproduction and if the reproduction was sold, from that date. In the case of copyrighted material on the internet, the date from which the statute of limitations runs is less clear. If a copyrighted photo is uploaded to a website does the statute begin running on the date that the file is uploaded or the last time that the website served a photograph to a user.

The question then becomes on what date does a copyright infringement claim accrue when the infringing activity occurs on the internet.

APL MICROSCOPIC, LLC v. USA, 1:18-cv-01851 (U.S.FC 2018) is a case which deals with this question. The plaintiff in this case is a photographer that specializes in photographing microscopic subjects. In 1996 the plaintiff took a very detailed picture of human bone marrow stem cells. The defendant in this case is NASA, an agency of the United States government. The defendant discovered the plaintiff photograph sometime around 2004 and included the photo on a website operated by the defendant. The website was updated for the last time in 2007.

The plaintiff filed suit against the defendant for copyright infringement in 2018. When the suit was filed the website with the infringing photograph was still available. The defendant filed a motion to dismiss based on the argument that the claim accrued on the date that the photograph was first uploaded to the defendant’s website.

The court dismissed some of the claims against the defendant, but allowed the copyright infringement claim to continue. In its opinion the court noted the Supreme Court has stated that a copyright claim arises or ‘accrues’ when an infringing act occurs.” When multiple or successive acts of infringement are alleged, the separate-accrual rule
may be implicated. Each time an infringing work is reproduced or distributed, the infringer commits a new wrong. Each wrong gives rise to a discrete ‘claim’ that ‘accrue[s]’ at the time the wrong occurs. In short, each infringing act starts a new limitations period. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 633, 670 (2014). Therefore a new claim for copyright infringement occurred every time a user accessed the copyrighted image on the defendant’s website.

After the motion to dismiss was denied the two parties quickly reached a settlement agreement. The plaintiff was paid $10,000 by the defendant and the defendant removed all copies of the plaintiff’s picture from its website.

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