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Raging Bulls, the Supreme Court and Running the Clock on Copyright Infringement

Yesterday, the U.S. Supreme Court issued its decision in Petrella v. Metro-Goldwyn-Mayer. This case is a copyright infringement action regarding the iconic MGM film, Raging Bull, which garnered Robert De Niro a Best Actor Oscar for his portrayal of boxer Jake LaMotta (but failed to win one for its director, Martin Scorsese). The key issue here in this case is whether the doctrine of “laches” bars a plaintiff from being able to bring a copyright infringement lawsuit. Spoiler alert: by a 6-3 decision, reversing the 9th Circuit, the high court decided that the doctrine did not bar the lawsuit, primarily because such actions are already subject to the Copyright Act’s three-year statute of limitations.

As a subplot, a lot of ink has already been spilled over how the Justices sided with respect to this decision. Justice Ginsburg, a member of the Court’s so-called Liberal wing, wrote the majority opinion and was joined by her Liberal colleagues, Justices Kagan and Sotomayor, as well as Conservatives Scalia, Thomas, Alito. Justice Breyer, who generally sides with the Liberals, wrote the dissent and was joined by Chief Justice Roberts, a Conservative, and Justice Kennedy, who is frequently the swing vote in 5-4 decisions. Unlike cases with particular social implications, such as those involving the free exercise of speech or religion under the First Amendment, decisions involving statutory construction are often decided 9-0, or with splits that don’t adhere to particular ideologies or political party lines.

Getting back to the main story, I’ll spare you the lengthy exposition which features the vesting of renewal rights in pre-1978 copyrights, the distinction between “legal” and equitable” remedies and the merger of law and equity in federal cases with the 1938 adoption of the Federal Rules of Civil Procedure. You can read the 39-page opinion for that.

Here’s what creators, assignees and licensees of copyrighted works, such as screenplays, films and music, need to know. First, for those who may not know, “laches” is the doctrine by which a court will, in extraordinary circumstances, deny plaintiff the right to proceed with a lawsuit where he unreasonably delays in bringing that lawsuit. Second, the Copyright Act’s three-year statute of limitations in section 507(b) might be described as applying on a “rolling basis.”

Generally, the clock begins to run on filing a copyright infringement action from the time the claim, “accrues,” which is usually when the first infringement takes place. For example, if a you’re a songwriter and someone steals your song and puts out a record in June, 2014, you would have three years from that time to file a copyright infringement action or forever hold your peace. Or would you? Let’s assume that the infringing record is a hit and remains in for print for more than 20 years, including re-releases in various new formats. Despite being aware of the infringements all along, you don’t file a lawsuit until 2034, twenty years after the initial release of the infringing recording and after the label has expended a lot of money in producing, distributing, marketing and re-issuing the record.

One might think that the statute of limitations would totally bar such a lawsuit. One would be wrong. You, as plaintiff songwriter, can still sue, but you can only base your claim on infringements that occurred during the prior three years, i.e., 2031-2034. Anything that happened between 2014 and 2031 would be time-barred. With that in mind, let’s look at the relevant facts in the Raging Bull case.

After retiring from the ring, Jake LaMotta collaborated with his friend, Frank Petrella, to tell his story. They wrote several versions, one of which was a 1963 screenplay which was registered with the Copyright Office with Mr. Petrella as sole author. Frank Petrella subsequently died, prior to the commencement of the “renewal” term for you copyright geeks, and the screenplay became the sole property of his daughter, plaintiff, Paula Petrella. Although Paula first had her lawyer contact MGM in 1998 regarding alleged infringement of the screenplay, she didn’t file suit until January, 2009, nearly thirty years after the release of Raging Bull, along with re-releases in VHS, DVD and licenses to cable and satellite TV companies.

Although Ms. Petrella only sought relief for infringements for the prior three years (and therefore anything that happened prior to 2006 was not involved), MGM viewed the lawsuit as the waste product of a raging bull and that laches should bar her complaint. MGM felt it unfair to have to defend a lawsuit that plaintiff could have brought decades earlier when memories fade, witnesses die and documents are lost. The District Court, Court of Appeals and the dissenting Supreme Court Justices agreed.

The majority of the Supreme Court, however, felt that laches was not a bar a lawsuit in light of their being an applicable statute of limitations. A plaintiff has a right to decide whether to pursue and infringement action, and subject to the statute of limitations, when to do so. Moreover, the same evidentiary concerns that MGM raised, also affect plaintiff, who bears the burden of proof. The Supreme Court did point out that the doctrine of “estoppel” could bar a copyright infringement action where the plaintiff engaged in deceptive or misleading conduct regarding the defendants.

So, just because the statute of limitations may have passed regarding first infringements, it doesn’t mean the clock’s run out on later ones. As always, if you think you have an infringement claim that you might want to pursue, you should consult your local copyright lawyer.