Andrew Paul Leonard is a photographer whose primary focus is microscopic imagery. (Disclosure: my firm has represented Leonard in the past, though not in this case). In his travels through the human anatomy, he once had the occasion to create a compelling and colorful image of human bone marrow stem cells. The National Aeronautics and Space Administration, run by the U.S. government, found Leonard’s work noteworthy and published this photograph on its website. In doing so, it did not reach out to him or otherwise gain his consent. The NASA page on which the photograph appeared was created in 2004, updated for the last time in 2007, and was still online in the three-year window before Mr. Leonard filed a copyright infringement lawsuit over the usage in 2018
After being served with the complaint, the guv’ment called foul, arguing to the court that Leonard was dilatory and that his suit was barred by the statute of limitations, which is generally three years from the date of the discovery of the infringement. The court was tasked with deciding whether the relevant acts of alleged infringement began and ended in 2004 or whether the site being online in the three-year window was sufficient for the case to move forward.
In the past, it was no big whup to nail down the date on which an infringement started and ended. For an infringing film, you looked at the film’s opening date and the date it vacated theaters, for example. Or, when a film was released on DVD, you could with relative ease identify the dates on which the DVDS were distributed. And it was universally understood that each showing or distribution of an infringing copy of a film was a violation of a copyright holder’s Section 106 rights for purposes of the statute of limitations.
But, today, when so much of the world’s copyright infringement, like everything else, has abandoned the physical world and migrated online, it is far more difficult to ascertain the dates on which a series of infringing acts begins and ends. And this is important, because (setting aside the discovery rule and tolling) a copyright case cannot proceed unless an infringing act separately accrued within the three-year window before the complaint was filed.
The Supreme Court, in Petrella v. MGM, noted this “widely recognized” rule of separate accrual for copyright claims and concluded that a copyright holder could, at the very least, recover for any acts of infringement that took place in the three years preceding the filing of the complaint.
Per this rule, “when a defendant commits successive violations, the statute of limitations runs separately from each violation.” Thus,” each infringing act starts a new limitations period,” and a defendant who has “engaged (or is alleged to have engaged) in a series of discrete infringing acts” is liable for those that fall within the three-year window. This holding established that every act of copyright infringement within that window is an independently actionable legal wrong, and a copyright holder will not be faulted for “sitting still, doing nothing, [and] waiting to see what the outcome of an alleged infringer’s investment will be.”
The question that arises modernly, though, is when the statute of limitations bars claims for infringing content published online. If a website posted an infringing photograph or story back in 2005 and continued to host the infringing material online until 2020, there is a lack of clarity as to whether an independently actionable legal wrong occurred within the three-year window.
Courts have addressed the question in a number of ways, with the best analysis recently issuing from Leonard’s case, which dug deep into the above facts in reviewing the Government’s motion to dismiss. The court in the case entitled APL Microscopic, LLC v. United States, 144 Fed. Cl. 489 (2019) engaged in a thorough and nuanced look at the language of the Copyright Act’s Section 106, which delineates a copyholder’s exclusive rights, and noted that at least two of those rights are violated in a separately accruing fashion when an infringing website remains online within the three-year window.
The court points to the copyright holder’s exclusive right to “display the copyrighted work publicly” and notes display in this context means “to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process[.]” Given these statutory definitions, the court readily concludes that “each time a user viewed NASA’s webpage, [Leonard’s] copyrighted Work was displayed on the user’s computer,” and each display is a separately accruing act that “infringes on the owner’s right of public display.” As it is likely that such viewership occurred while the infringing website was on line during the three-year window, the court finds for the photographer and denies the motion to dismiss.
The APL court also found that a website owner that publishes infringing content engages in a separately accruing violative act each time it “distributes” a work in contravention of the artist’s exclusive right to distribute her work. The court rejected the government’s assertion that a distribution occurs when a work is “made available” for distribution, and instead holds that infringement of the right of public distribution under Section 106(3) requires “actual dissemination of either copies or phonorecords.” Thus, NASA’s “act of transmitting the webpage — and the [Leonard photograph] therein — to a user would infringe on this right.” And to the extent this happened within the three-year window, such conduct would be inside the statute of limitations.
NASA must thus answer for its use without consent of Leonard’s work. And this APL decision will chart the course for courts in online exploitation cases grappling with the question of when infringement begins and when it ends.
Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.