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What Should the Filing Time Be for Common Law Copyright Infringement Suits?

By Stan Soocher

Rights in pre-Feb. 15, 1972, sound recordings ' which are protected by state law, rather than federal copyright law ' are hotly litigated in the digital music era. On April 17, for example, major record labels sued the music-streaming service Pandora in New York Supreme Court in Manhattan. Capitol Records LLC v. Pandora Media Inc., 651195/2014. The suit alleges common-law copyright infringement and unfair competition from Pandora's use of pre-1972 recordings. Federal copyright law provides a specific statute of limitations for infringement claims, but New York doesn't for common-law infringement. As a result, there is no practical guidance on how far back damages may be counted.

The issue was recently discussed in an April 14 New York state court ruling involving use of a pre-1972 recording on a restaurant website's home page. Capitol Records LLC v. Harrison Greenwich LLC, 652249/2012. Capitol Records sued the New York City restaurant over unlicensed use of the 1970 recording “The Rumor” by The Band. Capitol filed its complaint for common-law copyright infringement in New York County on June 27, 2012.

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