When Does a Copyright Claim Accrue?
Addressing the issue of copyright claim accrual for the first time in the 10th Circuit, the U.S. Court of Appeals for the 10th Circuit upheld a district court’s dismissal of a 2010 copyright suit upon the grounds that the statute of limitations had run out three years after accrual of the claim. Copeland Cooper v. NCS Pearson, Case No. 12-1096 (10th Cir. Aug. 19, 2013) (Seymour, J.)
Copeland Cooper co-created the psychological test Battery for Health Improvement (BHI) in the 1980-90s alongside two clinical psychologists. In 1993, her co-creators signed over their rights to the test to the corporation Battery for Health and Illness, Inc., (BHI, Inc.) started by the three test creators. Later that year, the corporation signed over publishing rights to National Computer Systems (NCS), NCS Pearson’s predecessor. The assignments to BHI, Inc., and NCS both indicated that Copeland Cooper’s co-creators exclusively owned the intellectual property rights to the BHI test. Copeland Cooper signed off on both agreements as the president of BHI, Inc.
In 1996, NCS first published the BHI test with a cover stating that the test was “by” Copeland Cooper’s co-creators with contributions by Copeland Cooper. Copeland Cooper was aware of this accreditation and that all royalties were divided equally between her co-creators. In 2002, NCS Pearson published new editions of the BHI test that did not accredit Copeland Cooper except in an appreciation paragraph. Copeland Cooper became aware of this change in 2009 and filed suit against NCS Pearson in 2010 seeking a declaration that she was a one-third co-owner of the test, equal credit for the authorship and an accounting of her share of revenues. After the district court granted a summary judgment to defendants based on statute of limitations, Copeland Cooper appealed.
The 10th Circuit first noted that the Copyright Act requires that suits commence within three years of accrual but does not define when accrual begins. It thus relied upon the accepted rule that accrual in federal cases generally begins when the “plaintiff knows or has reason to know the existence and cause of the injury” that is the basis of the action. The 10th Circuit found that the plain and express repudiation of Copeland Cooper’s co-ownership in the 1993 publishing agreement was sufficient notification of injury. The BHI test’s publication in 1996 was also certainly notification, because Copeland Cooper was aware that she was not receiving equal attribution for the BHI test creation and not receiving any royalties—both of which are recognized as starting the statute of limitation running. Either of these accrual dates placed Copeland Cooper’s 2010 copyright suit beyond the three-year statute of limitations.
In response to Copeland Cooper’s claims that she had been misinformed by one co-creator that she could not be officially listed as an author because she was not a clinical psychologist, the 10th Circuit noted that a fraud claim can toll the statute of limitations. However, because Copeland Cooper was not asserting a fraud claim against the defendant, NCS Pearson, the 10th Circuit concluded that any such claims were immaterial in this case.