Statute of Limitations: Part Two, Authorship Claims

Wednesday's posting concerned statute of limitations issues for copyright infringement claims. Today's posting concerns limitations issues that arise when plaintiff asserts joint or sole authorship, or a renewal interest. The governing provision is the same in both cases, 17 USC 507(b). That provision states that no civil cause of action may be brought later than three years from the date the claim accrued. The statute doesn't distinguish between infringement and authorship actions, nor does the legislative history. So why should we?

The courts have. But based on what? Recall from yesterday's posting that the legislative history is clear that Section 507(b) treats the statute of limitations as remedial, not as a bar on the right. This means that if you fail to bring an action within the limitations period against a particular defendant, you haven't lost your copyright, it just means you're not entitled to relief. But isn't a right without a remedy no right (as first year law students are told)?

Limitations defenses don't distinguish between meritorious and unmeritorious claims: if you miss the period for filing, no claim. You had the right, but you blew your ability to sue by waiting too long. But if you miss it once, does this mean you can never bring a claim ever, against anyone? What if you don't want money or injunctive relief?

Let's say my co-author claims sole authorship. I know we wrote the work together and intended it to be a work of joint authorship. But I don't discover the outrageous claim of sole authorship until three years after I should have known about it (under discovery accrual) or from the date the claim is first made (violation accrual). I bring a declaratory judgment after the limitations period asking that from this day forward I should be declared a co-author. Under a remedial statute of limitations I should get the declaration. If a limitations period is a bar on the right, I can't. Courts have, unfortunately, treated claims for authorship as if 507(b) was a bar on the right, while they regard the same section as a bar only on the remedy if a claim for infringement is brought. That's a distinction not supported in the statute, its legislative history, or pragmatically (in the Posnerian meaning of that term).

Things started out on the right foot in Stone v. Williams, 970 F.2d 1043 (2d Cir. 1992), which involved a very late claim for renewal rights (and thorny laches issues). Stone properly held that Hank Williams Jr.'s illegitimate daughter could obtain renewal rights going forward, but not recover money for exploitation preceding the limitations period, because the statute was remedial. Stone is correct.

Things then went south four years later with Zuill v. Shanahan, 80 F.3d 1366 (9th Cir. 1996), amended 1996 U.S. App. LEXIS 14516 (9th Cir. June 14, 1996) and Merchant v. Levy, 92 F.3d 51 (1996). Zuill attempted to justify treating infringement limitations as remedial and ownership limitations as a bar to the right by declaring that an infringement occurs every time the work is exploited without permission, but that creation, not infringement, is the gravamen of an ownership claim, 80 F.3d at 1371. That's wrong: its not creation that causes the dispute, but a subsequent alleged false claim of sole authorship.

Merchant faced a different problem since it had prior precedent, Stone. Merchant attempted to distinguish Stone as involving "highly idiosyncratic facts," 92 F.3d at 56, but that is beside the point. The relevant holding in Stone was a legal construction of the nature of the statute as remedial or not, and that determination had nothing to do with facts.

The policy implications of treating ownership claims as being forever barred if untimely can be terrible: someone who has not contributed expression and cannot constitutionally be any kind of author will be one effectively, if the real author misses the limitations period.

So when does accrual run for ownership claims, where discovery accrual is used? There is no clear answer. Some courts have referred to filing a copyright registration in one author's name, but in Estate of Burne Hogarth v. Edgar Rice Burroughs, Inc., 342 F.3d 149, 164 (2d Cir. 2003), Judge Jon Newman, the author also of Merchant, tried to put an end to that route. Publishing a book with one author's name only is a pretty good way, but in the end the inquiry is likely to be fact-specific.