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Authors Guild Calls for a More Expansive Copyright Recovery Window in Supreme Court Case

U.S. Supreme Court in Washington, D.C.

On January 12, 2024, the Authors Guild filed an amicus curiae (friend of the court) brief with the US Supreme Court in Warner Chappell Music, Inc. v. Nealy. We were joined by the Dramatists Legal Defense Fund, the Graphic Artists Guild, Romance Writers of America, the Songwriters Guild of America, and the Textbook & Academic Authors Association.

The brief encourages the Court to uphold the Eleventh Circuit’s decision allowing copyright holders (one of whom was imprisoned during part of the period in which the work was infringed) to recover damages for infringements that occurred more than three years before the lawsuit was filed. As we argued in our amicus brief for the Ninth Circuit case Starz v. MGM, the ability to collect such damages is vital to the ability of authors and other copyright holders to bring copyright infringement suits.

The copyright law provides for a three-year statute of limitations, meaning that an infringement lawsuit must be brought within three years of any infringing activity, or when the plaintiff reasonably knew (or had reason to know) of the infringement; the latter situation is referred to as the “discovery rule.” Where copyright infringement is ongoing, courts allow suits to be brought within three years of the discovery of any continuing acts of infringement. As the brief states, “the discovery rule serves the purpose of the Copyright Act (and Article I’s Copyright Clause) by protecting copyright holders, especially America’s artists, authors, songwriters and composers, from the effects of widespread infringement in the digital era.”

In this case, the defendants had argued that even if plaintiffs could avail themselves of the discovery rule, they should not be allowed damages for infringement that occurred more than three years before the suit was filed. That is the question before the Supreme Court: whether a copyright plaintiff can recover damages for infringing activity that occurred more than three years before a suit is filed. Our amicus brief argues that the answer should be a strong yes. Otherwise, the discovery rule would be meaningless.

Extremely few creators can afford to bring a lawsuit on principle alone without the ability to receive damages from which to pay their lawyers. As our brief further explains, “American artists are in crisis while they struggle to police infringers.” We point to the Guild’s recent author income survey, which shows that “[a]rtists face unprecedented and worsening financial pressures.” The median author income for full-time authors from their writing and related work was just over $20,000 in 2022, which means half of all full-time authors continue to earn well below minimum wage. The protections of the copyright law and the ability to recover an adequate level of damages are exceedingly important to an author’s ability to defend their livelihood.

The case is scheduled for oral arguments on February 21, 2024; the U.S. Solicitor General (whose amicus brief takes the same position as ours) has moved to take part in the oral argument. We will continue to monitor the situation and keep our members advised.

Read the brief here (PDF).

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