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One of the most common mistakes non-lawyers make when considering intellectual property law is confusing the rules that apply to one form of IP with another. A good example of that is the misconception that, like a trademark, a copyright owner must zealously defend the copyright or lose it. That’s not true, but there is a statute of limitations. There’s a subtle difference between how these two ideas play out.
A trademark is any “word, name, symbol, or device, or any combination thereof” used as a way to identify a company’s products or services. If someone infringes a trademark, the owner must take action to protect it. Otherwise, the owner will probably lose the trademark. There’s no such rule for copyright. That is, the statute doesn’t state that the copyright is lost because it isn’t enforced, and the United States Supreme Court expressly held that the “laches cannot be invoked to bar legal relief” in copyright cases. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. ___, 134 S. Ct. 1962 (2014). (The Doctrine of Laches is a defense to a lawsuit claiming that the plaintiff’s legal right or claim should not be enforced or allowed if there’s too long a long delay in asserting that right or claim, and the delay has prejudiced the defendant.)
Nevertheless, the law does provide a limitation on copyright suits at 17 U.S. Code § 507, which the Supreme Court upheld.
(a)Criminal Proceedings. Except as expressly provided otherwise in this title, no criminal proceeding shall be maintained under the provisions of this title unless it is commenced within 5 years after the cause of action arose.(b)Civil Actions. No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.
There is a statute of limitations of three years for civil cases and five years for criminal cases. This applies to a single instance of copyright infringement. If there’s an infringement on 1/1/2016, and another on 1/1/2017, then as of 1/1/2019, the infringer can’t be sued for the 2016 infringement (from three years ago), but the owner can still recover damages for the 2017 infringement (only two years ago). Therefore, the copyright still has value.
The nature of copyright is such that it’s likely that one infringement will lead to subsequent infringements, so this is no small point. For example, an infringer makes a photocopy of a book and distributes it to friends. Seeing how much this is appreciated, the infringer may decide to continue doing so over the few months (or even years). As long as the copyright is still valid, the owner will be able to get compensation for any relatively recent infringement. That is, even if the first infringement is too old, all the subsequent infringements could still be enforced because the copyright is still valid. With damages potentially being very high, that’s still quite valuable to the copyright owner.
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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.