Gorsuch’s “Dead Letter” Prophecy: Hearst v. Martinelli may Settle Copyright’s Discovery Rule following the Warner Chappell Avoidance

by Dennis Crouch

The pending Hearst v. Martinelli case may be the “dead letter” offered by Justice Gorsuch. This time, the Supreme Court might actually decide whether the “discovery rule” applies to the Copyright Act’s statute of limitations.

Copyright law provides that “[n]o civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.” 17 U.S.C. § 507(b). While seemingly straightforward, this provision has generated decades of debate and a deep circuit split over when exactly a claim “accrues” for statute of limitations purposes.   In Warner Chappell Music v. Nealy, the 6-3 Supreme Court avoided deciding this fundamental question – preferring to answer a much smaller question about back damages.

The discovery rule in copyright law is often termed the “discovery accrual rule” because it relies upon the term “accrued” from 507(b)  or its foundational support.  The circuit courts that have examined the issue all agree that the statute permits some flexibility as follows: The ordinary rule is that the three-year timeline begins with the act of infringement. But, the copyright holder can get more time by showing that it (reasonably) did not learn of the infringement until later.  In those situations, the claim will be deemed to accrue once the copyright holder learns of the infringement.  In his Warner Chappell dissent, Justice Gorsuch opined that this interpretation of the Copyright Act is “almost certainly” wrong.  Gorsuch did suggest some flexibility, but perhaps only via equitable tolling.   The dissent was joined by Justices Thomas and Alito — indicating that there are already three votes.

Justice Gorsuch also suggested that the majority’s decision “promises soon enough to make anything we might say today about the [discovery accrual] rule’s operational details a dead letter.”  Although he did not mention it in the opinion, a case squarely questioning the discovery accrual rule is now before the court.

In Hearst Newspapers, L.L.C. v. Martinelli, No. 23-474, petitioner has asked the Court to decide the question: “Whether the ‘discovery rule’ applies to the Copyright Act’s statute of limitations for civil claims.”

In 2016, French photographer Antonio Martinelli took a series of photographs of the Guinness Castle estate in Ireland. In March 2017, Hearst Newspapers and Hearst Magazine Media (collectively, “Hearst”) used Martinelli’s photographs, without permission, in several online news articles. However, Martinelli did not discover Hearst’s infringing uses until, at the earliest, November 2018.  However, he did not immediately sue. Rather, he filed a copyright suit in October 2021, more than three years after the initial infringement but less than three years after his discovery.   Both the district and appellate court sided with Martinelli.   In particular, the Fifth Circuit affirmed, although with a somewhat tepid opinion by Judge Higginson. And Hearst subsequently petitioned for write of certiorari.

Although the circuit courts have long supported a discovery rule in copyright cases, Hearst argues that this approach is out of step with recent Supreme Court cases in other areas of law, including

  • Gabelli v. SEC, 568 U.S. 442 (2013) (holding that the discovery rule does not apply to the statute of limitations for civil penalty actions brought by the Securities and Exchange Commission under the Investment Advisers Act of 1940);
  • Rotkiske v. Klemm, 140 S. Ct. 355 (2019) (holding that the discovery rule does not apply to the statute of limitations for private civil actions brought under the Fair Debt Collection Practices Act, which runs from the date on which the violation occurs); and
  • TRW Inc. v. Andrews, 534 U.S. 19 (2001) (holding that the discovery rule does not apply to the statute of limitations for private civil actions brought under the Fair Credit Reporting Act).

In each of these cases, the Supreme Court declined to apply a general discovery rule, instead focusing on the specific language of the statute at issue and the policies underlying that particular statutory scheme. The petition in Hearst v. Martinelli argues that these cases demonstrate a broader trend in the Court’s jurisprudence away from implied discovery rules and towards strict adherence to statutory text, a trend that the petition argues should lead the Court to reject the discovery rule in the context of the Copyright Act’s statute of limitations.

Martinelli has argued that it is too difficult for a copyright holder to police the internet within the three year timeline.  But Hearst argues otherwise — that this is “likely untrue,” especially with the advent of sophisticated technological services such as Pixsy, ImageRights, and Copytrack.


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