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Eight NBA teams recently filed an amicus curiae brief supporting a petition that asks the Supreme Court to reject application of the discovery rule to copyright cases. The discovery rule starts the clock for bringing a lawsuit when the copyright owner discovers, or reasonably should have discovered, the infringement. Recent cases have called into question the discovery rule’s applicability to copyright law, but all the numbered Courts of Appeals continue to apply it.

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Under the Copyright Act, a copyright owner must file an infringement claim within three years after the claim “accrues.” 17 U.S.C. § 507. Traditionally, courts have applied two main rules to determine when a claim accrues: the injury rule and the discovery rule. In the context of copyright law, each rule works as follows:

Injury rule: The claim accrues when the infringement occurs, regardless of the copyright owner’s knowledge.<a id="_ftnref1" href="#_ftn1">[1]</a>

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Discovery rule: The claim accrues when the copyright owner discovers or should have discovered the infringement.<a id="_ftnref2" href="#_ftn2">[2]</a>

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Currently, the Courts of Appeals uniformly apply the discovery rule in accordance with the Copyright Act’s three-year statute of limitations. The discovery rule is particularly beneficial for copyright owners who may not immediately be aware of the infringement. This rule allows them to seek damages even if the infringement occurred more than three years before they filed the lawsuit, provided they file within three years of discovering the infringement. Critics of the rule argue that the statutory text only supports the injury rule, and that it permits copyright owners to sit on their rights while damages accrue.

Recent Developments and Supreme Court Rulings

In recent years, the propriety of the discovery rule has been the subject of significant legal debate. Last year, the Supreme Court decided Warner Chappell Music, Inc. v. Nealy, which addressed the bounds of the discovery rule. Namely, the Court held that a copyright owner is entitled to monetary relief for timely-filed infringement claims, regardless of when the infringement occurred. This decision sidestepped the key question: whether the discovery rule or the injury rule should apply in the context of the Copyright Act. A three-justice dissent criticized the majority for failing to address this threshold issue, explaining that the statutory text of the Copyright Act “almost certainly does not tolerate a discovery rule.”<a id="_ftnref3" href="#_ftn3">[3]</a> The dissent called for a case that “squarely present[s] the question [of] whether the Copyright Act authorizes the discovery rule.”<a id="_ftnref4" href="#_ftn4">[4]</a>

Recent Petition for Writ of Certiorari Challenging the Discovery Rule Gains Support

Enter RADesign, Inc., which recently filed a Supreme Court petition seeking review of exactly this question, i.e., “[w]hether a claim ‘accrue[s]’ under the Copyright Act’s statute of limitations …when the infringement occurs (the ‘injury rule’) or when a plaintiff discovers or reasonably should have discovered the infringement (the ‘discovery rule’).”<a id="_ftnref5" href="#_ftn5">[5]</a> RADesign was sued in 2021 by photographer Michael Grecco over a social media post made by RADesign four years prior, which allegedly constituted copyright infringement. If the injury rule applied, then the case would be dismissed for violating the three-year statute of limitations. However, under the discovery rule, the Second Circuit permitted the claim.<a id="_ftnref6" href="#_ftn6">[6]</a>

A recent filing by eight NBA teams, including the Indiana Pacers, Denver Nuggets and Minnesota Timberwolves, sides with RADesign and urges the U.S. Supreme Court to reject the discovery rule in favor of the injury rule.<a id="_ftnref7" href="#_ftn7">[7]</a> The teams are defendants in a copyright infringement case involving the use of copyrighted music, with some alleged infringements dating back more than a decade.

The NBA teams argue that the discovery rule lacks statutory support and has been used as a “powerful weapon” by copyright trolls to exploit the law. They contend that the discovery rule incentivizes plaintiffs to delay discovering infringements, thereby increasing potential damages. Two other amicus briefs have also been filed in support of RADesign’s petition, including briefs filed by Santa Clara University copyright professor Tylor T. Ochoa, and IP law firm McHale &amp; Lavin, P.A. These three amicus briefs seem to have put the Supreme Court on offense, as the Court called for a response from Grecco that is due March 26. Although the Supreme Court previously denied certiorari in a prior case that raised a similar question,<a id="_ftnref8" href="#_ftn8">[8]</a> that case lacked amicus support, which is an important component in increasing the chance of obtaining certiorari.

Supreme Court review of this question could have significant implications. If the Supreme Court sides with the NBA teams and RADesign, the injury rule would apply, limiting the time frame for copyright owners to file infringement claims and potentially reducing the damages they can recover. If the Supreme Court declines to grant certiorari, then courts would continue to apply the discovery rule in copyright litigation.

In conclusion, the discovery rule remains a pivotal yet contentious aspect of copyright law. The recent spate of related filings before the Supreme Court highlights the ongoing debate and the potential for significant changes in how copyright infringement claims are handled in the future.

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<a href="#_ftnref1" id="_ftn1">[1]</a> Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 670 (2014).

<a href="#_ftnref2" id="_ftn2">[2]</a> Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366, 369 (2024) (quoting Petrella, 572 U.S. at 670 n.4).

<a href="#_ftnref3" id="_ftn3">[3]</a> Warner Chappell Music, 601 U.S. at 376 (2024) (Gorsuch, J., dissenting); see also Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 603 U.S. 799, 810 (2024) (holding that “accrue” has a “well-settled meaning: a right accrues when it comes into existence.”) (quotes and citation omitted).

<a href="#_ftnref4" id="_ftn4">[4]</a> Warner Chappell Music, 601 U.S. at 374 (Gorsuch, J., dissenting).

<a href="#_ftnref5" id="_ftn5">[5]</a> RADesign, Inc. v. Michael Grecco Prods., Inc., No. 24-768, Petition at (i) (filed Jan. 15, 2025).

<a href="#_ftnref6" id="_ftn6">[6]</a> Id. at 2.

<a href="#_ftnref7" id="_ftn7">[7]</a> RADesign, No. 24-768, Brief of amicus curiae of Indiana Pacers, et al. (filed Feb. 18, 2025).

<a href="#_ftnref8" id="_ftn8">[8]</a> Hearst Newspapers, LLC, et al. v. Martinelli, No. 23-474 (U.S.) (cert denied May 20, 2024).

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