Supreme Court Holds Copyright Damages Can Go Beyond 3 Years

Weintraub attorneys Scott Hervey and Jamie Lincenberg unpack the Supreme Court's follow-up decision on damages in Neely v. Warner Chapel Music. Explore how this ruling could reshape future infringement cases.   Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here.   Show Notes: Scott: In a previous episode of “The Briefing,” we pondered just how far back a plaintiff in a copyright infringement case can go in recovering damages when we discussed the case of Warner Chapel Music versus Neely. Well, the Supreme Court answered that question on May 9th, 2024. The answer is as far back as they're able. I'm Scott Hervey of Weintraub Tobin, and I'm joined today by my colleague and frequent briefing guest, Jamie Lincenberg. We will be talking about the Neely case and how the Supreme Court's answer to what was a contested question in copyright law might impact future infringement cases on today's episode of “The Briefing.”   Jamie, welcome back, and thank you for joining us today.   Jamie Thanks, Scott. I'm happy to be here.   Scott Jamie, can you give us some background on this case?   Jamie Of course. In the case of Neely versus Warner Chapel Music, which began in 2018, music producer Sherman Neely filed a lawsuit against Warner Chapel Music and Artist Publishing Group. It was a run-of-the-mill copyright infringement case in which Neely claimed that Flo Rida's 2008 song, “In the Air,” featured an unlicensed sample of a 1984 track that Neely owned.   Scott And this case became not so run-of-the-mill when Neely's lawsuit headed to the Supreme Court to answer the then unresolved question of whether damages in a copyright case are limited to just the last three years before the case was filed, or can damages go way back beyond the three years? The reason why this case was right for Supreme Court review was due to a circuit split on the issue.   Jamie Right. The Second Circuit, the jurisdiction covering Neely's case, applied a three-year damages cap that Justice Ruth Bader-Ginsberg explained in the Supreme Court's past holding in Petrella versus MGM, as a successful plaintiff can gain retrospective relief only three years back from the time of suit. No recovery may be had for infringement in earlier years, and profits made in those years remain the defendants to keep. The Second Circuit applied the three-year limitation on damages, even in where a plaintiff alleges that his discovery of the infringement was only recently discovered. Despite the Supreme Court's apparent endorsement of the three-year limitation on damages rule, the Ninth Circuit and the 11th Circuit later broke rank and held that if a plaintiff can prove they only recently discovered the fact that their copyright was infringed, not only can they bring a copyright lawsuit outside of the three-year limitation period, but the plaintiff can also see seek damages going back all the way to the very first infringement.   Scott That's right. So, the question on which the Supreme Court granted certiorari in Neely was whether under the discovery, a cruel rule applied by the circuit courts, a copyright plaintiff can recover damages for acts that allegedly occurred more than three years before the filing of a lawsuit. And the Court, the Supreme Court, ended up answering that question in the affirmativ...