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Cannot Avoid Statute of Limitations Without Diligence

Posted by James Juo | Feb 13, 2023 | 0 Comments

The purpose of the statute of limitations “is to require the reasonably diligent presentation of tort claims.” U.S. v. Kubrick, 444 U.S. 111, 123 (1979); see also Hickerson v. Vessels, 316 P.3d 620, 623–24 (Colo. 2014) (“The purpose of a statute of limitations is to promote justice, discourage unnecessary delay, and forestall the prosecution of stale claims.”).

The statute of limitations for bringing a copyright infringement lawsuit is three years from the date of infringement. 17 U.S.C. § 507(b) (“No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued”). “No recovery may be had for [earlier] infringement” more than three years back from the time of suit. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 677 (2014).

Discovery Rule (With Diligence)

Courts, however, often apply a discovery rule for the statute of limitations, where the statute of limitations is measured from when the copyright owner knew or should have known about the alleged infringement “with due diligence.” Petrella, 572 U.S. at 670 n.4; see also Merck & Co. v. Reynolds, 559 U.S. 633, 653 (2010) (the limitations period begins to run when “a reasonably diligent plaintiff” would have discovered the facts constituting the violation, “irrespective of whether the actual plaintiff undertook a reasonably diligent investigation”); Nehls v. Farmers All. Mut. Ins. Co., No. 05-CV-02168-WDM-BNB, 2006 WL 2844406, at *3 (D. Colo. Sept. 29, 2006) (granting summary judgment under statute of limitations where plaintiff has not produced any evidence of diligence); Fisher v. United Feature Syndicate, Inc., 37 F. Supp. 2d 1213, 1216 (D. Colo. 1999) (granting dismissal of copyright infringement claim based on statute of limitations).

The burden is on the copyright owner to show reasonable diligence. See Benak ex rel. All. Premier Growth Fund v. All. Cap. Mgmt. L.P., 435 F.3d 396, 400 (3d Cir. 2006). Merely asserting that the alleged infringement was not discovered until later does not necessarily avoid the statute of limitations. Id.

Notice of Need to Investigate

The statute of limitations could run from when “plaintiff was on notice of a need to investigate the state of his copyright prior to the date he searched for his photograph online.” Oppenheimer v. WL Mag. Grp., LLC, No. CV 20-1451 (ABJ), 2021 WL 6849089, at *3 (D.D.C. Mar. 4, 2021); see also Wood v. Santa Barbara Chamber of Com., Inc., 705 F.2d 1515, 1521 (9th Cir. 1983) (holding that a photographer's suspicion of copyright infringement, as shown by his filing a similar lawsuit years earlier, “placed upon [the photographer] a duty to investigate further into possible infringements of his copyrights”).

For example, if the alleged copyright infringement occurred in 2016, and the copyright owner had been suing others for infringing the same copyright in 2018, yet the copyright owner claims to have only discovered the 2016 infringement in 2022 shortly before filing a new infringement lawsuit—then the copyright owner has the burden under the statute of limitations to show diligence. If a diligent plaintiff should have discovered the 2016 infringement back in 2018, then the three-year statute of limitations would bar the infringement claim in 2022.

The attorneys at Thomas P. Howard, LLC litigate copyright cases in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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