15 August 2005


When one doesn't bring a claim within the SOL (statute of limitations), one is usually SOL (simply out of luck… or something that sounds a lot like that). In yet another dispute concerning James Cameron's Terminator films,1 the Ninth Circuit took the opportunity—in the course of an opinion that is largely of interest only to civil procedure nerds like me—to clarify one important aspect of the statute of limitations for copyright actions.

Under US law, the statute of limitations on copyright actions is three years. The statute begins to run at either the time of actual infringement or the time when the holder should reasonably have been aware of the infringement.2 The Ninth Circuit today clarified that new versions and releases of a work also constitute new infringements—and reset the clock for purposes of bringing suit.

The Kourtises acknowledge in their complaint that they learned of Camerons alleged infringement in 1991, when Terminator II was released. This initial act of infringement indeed falls outside the statute of limitations. Nevertheless, the complaint also alleges several acts of continuing infringement, including the release of Terminator II on DVD and the use of the Minotaur materials to develop Terminator III. Because the complaint does not identify the date on which the Kourtises discovered these acts of continuing infringement, it cannot be concluded that the Kourtises claim is timebarred in its entirety. See Danjaq LLC v. Metro-Goldwyn-Mayer, Inc., 263 F.3d 942, 954 (9th Cir. 2001) (recognizing that the re-release of a movie on DVD could constitute a separate act of copyright infringement for statute-of-limitations purposes, even though the movie had originally been released decades before the plaintiff filed suit).

Kourtis v. Cameron, No. 03–56703 (9th Cir. Aug. 15, 2005), slip op. at 10589–90. The court also noted that the subject would be the acts that had occurred within the preceding three years—and, therefore, that the remedy would also be limited to that period. Id. at 10589.

I suppose that really is still a civil-procedure-nerd question, not a substantive question of copyright law. At least it's not an analysis of collateral estoppel, which consumes the first thirteen pages of the opinion. That's real civil-procedure-nerd stuff. It could, however, have been taken as an opportunity to clarify a choice of law principle. Both Australia (the residence of one set of claimants in the earlier suit) and the US (the other) have strong principles concerning work for hire. The Ninth Circuit's opinion is not especially clear on which set of law applied, and it matters: under Ninth Circuit law at the time the original suit was heard in the early 1990s, the described transaction was sufficient to create a work for hire—but it would not have been sufficient under other national law, even though the bulk of the work appears to have been done in the US.

If your head isn't hurting yet, I'd like some of whatever you're taking.

  1. Of late, there was the suit by the woman claiming that the essential foundation for the entire sequence had been laid out in stories, treatments, and screenplays she wrote in the late 1960s and early 1970s. When she lost, she tried to spin it to appear that she had won. (I have carefully not listed any particular identifying characteristics to avoid problems—other sites that have done so have been DDOSed and slashdotted.) Before that, there were many other accusations and disputes, including one that resulted in a change in the last few frames of the original film for the most-recent DVD releases. (Same note.)

    Of course, this has nothing whatsoever to do with the originality of the Governator, or the girly men who might sue over that.

  2. See Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004).