A Black Star Rising reader sent us the following question:
I recently found a photo of mine on the blog of a small business. The blog post that included my photo was published in 2007. Is there any “statute of limitations” on copyright violators, or can I pursue this issue whenever I come across one of my photos?
When someone infringes your copyright, the time that you have to make your claim is limited. This is indeed based, as you suggest, on the legal principle called “statute of limitations.”
Statutes of limitation, in general, are laws that prescribe the time limits during which you can file lawsuits. The deadlines vary with the type of claim and — at times — they depend on the state where you live.
The purpose of such statutes is to reduce the unfairness of defending actions after a substantial period of time has elapsed. They allow people to go on with their lives, regardless of guilt, after a certain time.
The “Last Act” of Infringement
Because copyrights are governed by federal law, there is only one statute of limitations for copyright-related claims. Copyright infringement claims have a three-year statute of limitations from the date of the “last act” of the infringement.
What constitutes the last act can vary. If your image is published in a newspaper without your permission, for example, you have at least three years from the date that the newspaper was distributed to file your claim in court.
However, if the infringement continues, such as when the photograph remains on the newspaper’s website, the “last act” has not occurred until your photo is removed from the site.
In your case, since the photo is still displayed on the small business’ blog, you should be able to take legal action against the infringement, assuming the usage is not protected by “fair use.”
Handling Past Infringements
Often, photographers don’t find out about an infringement until after it has occurred — well after a photo has been pulled down from a billboard, distributed in a magazine, or removed from a website.
In these cases, it’s important to understand exactly when the three years starts.
Some courts follow the “injury rule” for starting the clock for statute of limitations. This means that the three years begins at the time of the last act of infringement, regardless of whether you know about it. Therefore, if you don’t learn about the infringement until three years and a day after it occurred, then you can’t make a claim against the infringer.
Most courts, however, follow the “discovery rule” for the statute of limitations for copyright infringement. In other words, the time starts when you actually discover the infringement — or when you should have discovered it, if you had been diligent.
The latter situation also is known as “constructive notice.” An example of this “constructive notice” is when your photo is published in a nationally distributed magazine, but you didn’t see a copy of it.
Currently, the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Circuits have held that the “discovery rule” applies to claims under the U.S. Copyright Act. That leaves only the Tenth and Eleventh Circuit courts with the more restrictive “injury rule.”
States in the Tenth and Eleventh Circuits include Alabama, Colorado, Florida, Georgia, New Mexico, Oklahoma, Kansas, Utah and Wyoming.
After you file your lawsuit within the statute of limitations, some courts limit your damages for the infringement to the last three years. But others, such as those in the Ninth Circuit, allow a copyright owner to recover all damages accrued, even if they occurred outside of the three-year window for the statute of limitations.
The bottom line is, if someone uses your photo without your permission, don’t sit on your copyright claim. Check with an attorney to discuss your options as soon as you realize you’ve been infringed.