The Supreme Court accepts fewer than 1% of the requests for review submitted to it, and review of copyright cases is relatively rare.* Yesterday, the Court accepted review (or, in lawyer-speak, granted a “petition for writ of certiorari”) in Petrella v. Metro-Goldwyn-Mayer, Inc.
*Based on my quick count, the Court has decided 15 copyright cases since 1985.
Since 1981 Paula Petrella has been the owner (by way of copyright reversion and inheritance) of her father Frank Petrella’s copyright interest in a book and two screenplays about the life of Jake LaMotta, the central character portrayed in the film Raging Bull. She claims that Raging Bull is a derivative work of the book and screenplays, and that she is entitled to royalties based on MGM’s continuing commercial use of the film.
Ms. Petrella threatened MGM with a suit for copyright infringement as far back as 1998, but she didn’t actually file suit until 2009. In fact, Raging Bull was released in 1980, and there is evidence that Ms. Petrella was aware of her copyright infringement claim as far back as 1981, in which case she delayed for almost 30 years before filing suit for copyright infringement.
The U.S. Copyright Act contains a three year statute of limitations, and this has been interpreted not to mean that that a copyright owner must bring suit within three years of learning of an infringement, but that if a copyright owner does bring suit, the owner can recover damages only for the preceding three years of unauthorized use.
However, there is a non-statutory or “common law” legal principle known as “laches” (a bothersome term derived from French law), that states that a party may not unreasonably delay in pursuing a legal right of action. MGM invoked this doctrine, arguing that Ms. Petrella’s 18-year delay in bringing the suit was unjustifiable, and resulted in substantial prejudice to MGM. The Ninth Circuit agreed, and dismissed Ms. Petrella’s case.
The issue presented in Ms. Petrella’s appeal to the Supreme Court is whether the nonstatutory defense of laches is available without restriction to bar all remedies for civil copyright claims, including the copyright statute’s “trailing” three-year statute of limitations. In other words, can laches trump the copyright statute’s three year statute of limitations?
The appeal drew an amicus brief from the California Society of Entertainment Lawyers, which not only argued in favor of Supreme Court review of the narrow issue raised by this case, but criticized the “Ninth Circuit’s broader hostility to copyright plaintiffs – specifically, creators filing suit against conglomerates within the entertainment industry for violation of their intellectual property rights.”
Truthfully, setting aside its tie-in to the film Raging Bull (frequently listed as one of the greatest films of all time) and Robert De Niro (back when he was selective about his choice of movie roles), this is not a copyright case of earthshaking importance. Defendants raise the laches defense infrequently, since most copyright plaintiffs act within a reasonable period of time to enforce their rights. Why did the Court agree to take this case? Because the closest thing to a guarantee of review by the Supreme Court is a circuit split, and that is what Ms. Petrella was able to present in this case. Three circuits forbid any application of laches to restrict copyright damages, two circuits permit it only in exceptional circumstances, and the Ninth Circuit not only applies laches in copyright cases, but has adopted a presumption in favor of applying laches to continuing copyright infringements. Apparently, these divisions within the federal circuit courts were enough to convince the Supreme Court that it was time to step in and resolve the circuit split.
More to come, as the parties file their merits briefs, and the Court hears argument sometime early next year, with a decision expected before the 2013-2014 term ends in June.
Decision under review: Petrella v. Metro-Goldwyn-Mayer, Inc., 695 F.3d 946 (9th Cir. 2012)