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Picture this: someone has been infringing your copyrighted material for ten years, but you only discovered it last year. They did a good job hiding their infringement or you just didn’t have any reason to go searching for any copyright violations.

The U.S. Copyright Act, however, has a three-year statute of limitations. That means that you must file suit no later than three years “after the claim accrued.” So when does your claim “accrue?” Fortunately, the law on this point is clear: the three-year limitation period does not apply if you only recently discovered an ongoing infringement and your failure to discover the infringement earlier was not the result of your own lack of diligence. But there’s another wrinkle in this scenario.

Even though you are permitted to sue for recently-discovered infringement that began more than three years ago, does copyright law allow you to collect damages dating back to the very start of the infringement or only for the most recent three years before the date you learned of the infringement?  There’s been a disagreement brewing among judges and courts about how to answer this question.  The Supreme Court, which has the final say, resolved the disagreement in Warner Chappell Music, v. Nealy. https://www.supremecourt.gov/opinions/23pdf/22-1078_4gci.pdf.

The answer, the Court held, is that a plaintiff is entitled to damages dating back to the first date of infringement, subject of course to proper proof. This is great news for copyright owners who stumble upon or learn about infringement long after it begins, but it is not a windfall for those who learn about an infringement but wait years to do something about it. This also serves as a warning for those who are infringing someone else’s copyrights. Just because you have been infringing for a very long time does not insulate you from an infringement lawsuit OR damages dating back years, even decades. And, infringement of copyrights does not require knowledge that you infringed, or even an intent to infringe. If you infringe, even innocently, you are an infringer.

Joshua A. Glikin regularly counsels businesses and their owners about copyright, trademark, patent, trade secrets protection and infringement. He finds practical solutions to difficult and sometimes surprising intellectual property problems, and he regularly litigates these issues in federal courts around the country.

Lita Rosario-Richardson counsels creators, artists and businesses about copyrights and trademarks specifically in the areas of music, television and film. She routinely litigates these issues in federal courts around the country.