Yesterday, the Supreme Court denied certiorari in Hearst Newspapers, LLC v. Martinelli, declining to determine whether the “discovery rule” applies in Copyright Act infringement cases and under what circumstances.  As a result, most circuits will continue to apply the rule to determine when an infringement claim accrues for purposes of applying the Copyright Act’s three-year statute of limitations.

A claim generally accrues when an infringing act occurs.  However, in copyright suits, most circuits apply a “discovery rule,” pursuant to which a claim accrues when a plaintiff has (or with reasonable diligence should have) discovered the infringement, which could be many years after the infringement began. 

Just two weeks ago, in Warner Chappell Music, Inc. v. Nealy, the Supreme Court declined to address whether the discovery rule applies in Copyright Act cases and confined its decision to resolution of an adjacent question—whether damages should be limited to acts occurring in the three years preceding suit, even ifthe discovery rule applies to allow claims concerning infringement that began more than three years before suit.[1]  The majority held that “a copyright owner possessing a timely claim for infringement is entitled to damages, no matter when the infringement occurred.”  This conclusion, the Court reasoned, flows from a textual reading of the Copyright Act, which imposes “no time limit on monetary recovery,” so long as a claim is filed within three years of accrual.  While Warner Chappell petitioned the Court on the broader issue of whether the discovery rule applies in copyright cases, the Court narrowed the question because application of the “discovery rule” was not challenged or briefed below.   

The dissent—penned by Justice Gorsuch and joined by Justices Alito and Thomas—cast doubt on the majority’s assumption that the “discovery rule” would apply at all and suggested that the Court should have waited for a case on point—apparently a nod to the Hearst case, which was then under consideration. 

The Hearst dispute is similar in that it involves allegations that photographer Antonio Martinelli first brought suit within three years of discovery of Hearst’s infringement, but more than four years after Hearst allegedly published Martinelli’s photographs of Lugalla, an Irish estate, without his permission.[2]  Martinelli argued his claims were timely under the “discovery rule” alleging that he did not become aware of the unauthorized uses until between November 2018 and May 2020. 

Unlike the defendants in Warner Chappell, Hearst opposed application of the “discovery rule” in the lower courts, asserting that Martinelli’s claim accrued upon publication and was therefore time-barred.  Both the district court and Fifth Circuit rejected this argument, applying the “discovery rule” and finding the claim timely under the Copyright Act. 

By denying certiorari, the Supreme Court leaves the discovery rule intact, permitting plaintiffs to bring suit within three years of discovery of a violation of the Copyright Act.  The majority in Warner Chappell acknowledged that the Court has “never decided whether that assumption is valid.”[3]  Although denials of certiorari are without explanation, today’s decision strongly, albeit implicitly, suggests that the Court will not disturb the prevailing practice in circuit courts of applying the discovery rule in copyright cases.  Unless Congress steps in to change this rule, the “discovery rule” remains applicable and copyright plaintiffs can recover damages for infringing acts based on timely claims no matter when those acts occurred.

[1] Warner Chappell Music, Inc. et al. v. Nealy et al, 2024 WL 2061137 (U.S. May 9, 2024).

[2] Martinelli v. Hearst Newspapers, LLC, 2022 WL 2542301 (S.D. Tex. July 5, 2022), aff’d sub nom. Martinelli v. Hearst Newspapers, L.L.C., 65 F.4th 231 (5th Cir. 2023).

[3] Warner Chappell Music, Inc. et al. v. Nealy et al, 2024 WL 2061137 (U.S. May 9, 2024).