Enforcing Copyrights: How Late is Too Late?

Enforcing Copyrights: How Late is Too Late?

“Raging Bull” is the critically-acclaimed new movie from young director Martin Scorcese. It stars up-and-comer Robert De Niro in a potential break-out role of boxer Jake LaMotta. Unfortunately, the movie is embroiled in a copyright dispute that could derail its release, or at least cut into its profits. The claim comes from Paula Petrella. She contends that her father Frank Petrella wrote an early draft of the screenplay in 1963, and when he died before the 28-year copyright term expired, the rights reverted to his heirs.

Wait a second… this isn’t 1980. Nevertheless, the US Supreme Court will hear the copyright claim this term.  The issue is whether Petrella is barred from bringing suit almost 30 years after the movie came out. She sued in 2009, after the movie was released on Blu-ray. The studio defending the case, MGM, has asserted a “laches” defense, a commonly invoked legal doctrine that says you cannot sit on your rights when you know your copyright is being infringed only to pounce at the most advantageous time. In this case, Raging Bull likely had not earned the studio much revenue over the years, but revenue presumably spiked again with the release of the Blu-ray. The Ninth Circuit Court of Appeals sided with MGM and dismissed the claim. Now, the Supreme Court will review the doctrine.

This will be an interesting battle because “laches” is often in tension with the statute of limitations. Under copyright law, the statute of limitations is three years, but each copy of the Blu-ray is a separate infringement so a copyright plaintiff might, ultimately, capture the prior three years of profits. With the surge in profits from the Blu-ray, 2009 was probably the best time in the last 30 years to sue. Petrella’s team argued that the statute of limitations adequately protects the defendant from being disgorged of all profits by limiting damages to a three-year window, so “laches” should not preclude the case entirely. If the Court rules for Petrella, it could open the floodgates to further suits related to older works recently reissued on newer formats such as Blu-ray or digital downloads.

This case could have wider implications for copyrights, generally, including software and other technology. As newer versions and formats are released, old claims may be “revived” if not barred by “laches.” We will see, however, if the Supreme Court, which has not previously weighed in on “laches,” will deliver the knockout blow to these cases this term.

For more information, contact Roger at rhood@duffysweeney.com. We welcome your comments, questions and suggestions.

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