Copying and sharing photos and stories starts with a simple right-click.
Where that content ends up after a few more mouse clicks or keystrokes could be the start of not-so-simple, or even costly, situations, according to copyright experts.
Copyright Act infringement cases are getting a potential boost on the plaintiff side after a U.S. Supreme Court ruling earlier this month, meaning more businesses might want to start vetting the content they’ve shared on their platforms — even a decade or longer ago.
That’s according to Abigail J. Remore, practice group leader for trademarks and copyrights at Chiesa Shahinian & Giantomasi. In short, she explains that there’s been a long history of jurisdictions interpreting the federal laws on copyright differently. In New York’s Second Circuit Court of Appeals, the recovery of damages in copyright cases had been limited to three years prior to the filing of a lawsuit, instead of when the alleged infringement first occurred.
“What that led to was a lot of … attorneys on the defense side loving to litigate there because the damage recoveries were so much lower,” she said. “If you were using something you shouldn’t have for 30 years, you only had to pay damages for three years immediately preceding the lawsuit.”
After the Supreme Court’s Warner Chappell Music Inc. v. Nealy et al. decision on May 9, which resolved conflicting circuit courts of appeals rulings, the approach of the Second Circuit, one of the busiest appeals courts for copyright litigation, was dispensed with.
“So, now, as long as you won’t blow past your statute of limitations, which only relates to filing lawsuits in the first place, you can recover damages for as long as infringement has been taking place, not just in the three years prior to a lawsuit being filed,” Remore said. “In the past, if a (potential copyright infringement) was 10 years old, you could say, ‘There’s no money here if we’re just looking at the past three years.’ That’d be a powerful negotiation tool. That’s gone.”
The kicker here? Remore anticipates “copyright-troll attorneys of the world” are going to go wild.
They’re seeing dollar signs, she said. So, expect more cases; expect increased demands.
Modern technology already has made the detection of potential copyright infringement cases an easier task for plaintiffs, Remore added.
“There are already law firms and businesses out there using AI or software-generated searching tools to search for a photographer’s work, for example, to see if it appeared on a random blog somewhere 10 years ago,” she said. “All of a sudden, that blog’s owner is going to get a demand letter saying they infringed a copyright and they need to pay X number of dollars.”
In line with her example, Remore expects the businesses at highest risk of being affected by this change are those that host content. The news industry and the sports sector top the list for her.
“But, it’s really anywhere you might have a wide range of things that live online,” she said. “Maybe you wrote a story about whomever won the World Series 10 years ago, and you happen to have a photo of a player on your website, and you didn’t find out whether it was licensed or not. If that’s still living on your website, someone can find it.”
Here’s another way Remore paints a picture of what’s different for these businesses compared with before: If a business had a picture on its website of a news event from 10 years ago that’s being subjected to an infringement claim now, the potential damage would be far less if you were just looking at the past three years — and not when the post was driving website traffic (and, by extension, advertising dollars or subscriptions) 10 years ago.
There’s a longer history for these businesses to be cognizant of when it comes to content posting and sharing and whether all those works of authorship are appropriately licensed or in the public domain.
“Given that, it might make sense to go through and do a purge process,” Remore said. “How much is that content really giving you from a search engine optimization perspective or organic marketing, and what’s the risk versus that value?”
On the other side, photographers and other content producers are expected to benefit from the further-back look that’s now the law of the land.
For attorneys, there’s a lot of interest in what the recent Supreme Court decision hints at moving forward. There were questions posed by the justices about “the discovery rule,” which determines the statute of limitations in these cases. Basically, the rule dictates that the clock doesn’t start ticking on that until a claimant actually discovers that their work is getting infringed upon.
“The dissent (in this case) said they should’ve gotten rid of it a long time ago,” Remore said. “That would essentially change copyright litigation in a huge way.”
In the meantime, intellectual property attorneys suggest organizations reexamine their risk exposure in this area.
“Looking forward, organizations are going to want to focus on educating employees on what (content) they should and should not be using,” she said. “It might be worth looking at agreements with independent contractors, content creators, social media influencers and staff writing stories or using photography and what your policies are for what they can and can’t use.”
