A lot of people have been asking about the 3-year statute of limitation for filing an infringement lawsuit. It’s taken us a while, because legally, from experience in these matters, it’s not a simple answer. As most legal questions, this question contains many shades of grey, well beyond the popular 50 shades. We know, unfortunately, too many photographers who wait and wait to file an infringement suit and then find out they waited too long. But there is an “extension” of sorts if you can get the courts to agree that there is a good reason to start the 3-year clock later.

While there is a 3-year limitation on filing an infringement case, the procedure, rules, and how it actually works is a bit complex legally. The arguments are that an individual wasn’t aware of the infringement, so the clock on the 3-year window doesn’t start until the copyright owner (the photographer) became aware of it. The counter argument is that if the infringement is in the public arena long enough or in a prior lawsuit and the copyright owner does not “live under a rock” and “should have reasonably” been aware of the infringement use. These arguments can go either way, depending on how well the arguments for or against are presented in court.

The bottom line take away for photographers should be that these matters are best looked at and evaluated by an IP lawyer, rather than try and dissect and decide this issue on the Internet. Every case has it’s own set or facts and peculiarities. And you sometimes need a “lawyer’s logic” to argue for your case.

Each case hangs on the individual facts and actions or inaction of the parties and of course, the judge’s assessment of all factors. There are some cases – rare – that are clear-cut. The “discovery rule” would apply if the creator was in prison, in the military at war, or in a coma for a protracted periods so it would be entirely “unreasonable” to expect the creator to have discovered the infringement during a period when he/she could not possibly have seen it. In other words, how good is your excuse?

The following is one clear-cut example from Ed’s files, the names are changed. Photographer in Fresno, CA shoots a single shot of an ice cream sundae for a local store in Fresno where the photographer lives and works. Photograph becomes a window poster in that single ice cream store which is not part of a chain, in Fresno. Four years later photographer is on vacation in Niagara Falls, NY and sees the image ripped off by a local convenience store catering to tourists in the form of a window poster only.  The creator could not have “reasonably discovered” this offending use occurring 3,000 miles away in a single location within the “normal” 3-year period which runs from the date of the first infringement.

Some court case examples that involved the statue of limitations:

Defendant’s counsel argued that plaintiff’s claim is barred by the statute of limitations, which runs from the date that plaintiff discovered or should have discovered the claim. Defendants’ counsel cited Michael Grecco Prods. Inc. v. Valuewalk, LLC, 16-cv-6171 (GHW) (S.D.N.Y. Nov. 6, 2018) for the proposition that a plaintiff who hires companies and services to routinely search for “hard-to-detect” infringements is on constructive notice of the infringement. However, unlike in Grecco, here, Mr.X  does not hire companies or services to search for infringements—he found the infringement on his own in 2018 by sheer accident. Counsel further argued that because the subject image was like the subject of a prior lawsuit against the performers known as (Joe Blow and Sally Smith) which was a copyright case that he should have known about this infringement even though this defendant was not a defendant in the prior case.

Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120 (2014) (concurring with other Circuits that copyright infringement claims do not accrue until actual or constructive discovery). See also, Design Basics, LLC v. Chelsea Lumber Co., 977 F. Supp. 2d 714, 725 (E.D. Mich. 2013) (“The Court . . . rejects Defendants’ argument that Plaintiff was under a continuous duty to police its copyright and concludes that Defendants have not pointed to evidence of any storm warnings that would reasonably have put Plaintiff on inquiry notice of the claimed infringement more than three years prior to filing suit.”)

Depending on the facts and circumstances of a particular case, the 3-year statue of limitations to commence a lawsuit may commence from the date that the creator discovers the infringement rather than the actual date of the infringement.

As we’ve said numerous times in numerous lectures and blog articles, legal cases are very fact specific and fact dependent. Statue of limitation cases are even much more fact specific and dependent than usual. It’s like having an infinite number of grey shades.