The Supreme Court’s approach to these questions was particularly relevant to the Second Circuit, which previously applied a three-year damages cap to curtail the discovery rule’s impact, resulting in the circuit split that was resolved in Warner Chappell.

On June 16, 2025, the Supreme Court of the United States denied the petition for certiorari in RADesign, Inc., et al. v. Michael Grecco Productions, Inc., which presented the question of “Whether a claim ‘accrue[s]’ under the Copyright Act’s statute of limitations for civil actions, 17 U.S.C. 507(b), when the infringement occurs (the ‘injury rule’) or when a plaintiff discovers or reasonably should have discovered the infringement (the ‘discovery rule’).”  Despite the Supreme Court’s denial of certiorari on this question during the last term, RADesign, the defendants in the underlying Grecco action, sought to convince the Court to revisit and reject the discovery rule’s application to copyright infringement claims. In refusing to grant certiorari, the Court has declined to disturb the plaintiff-friendly discovery rule that is currently applied in all numbered circuits, which may amount to affirming the rule as applied to copyright infringement claims. However, a circuit split is still theoretically possible if the D.C. Circuit, which has yet to consider this question, applies the injury rule, and the Supreme Court might still consider the question if presented with a sufficiently compelling case.[1]

Relevant Background

The denial of certiorari in Grecco comes against the backdrop of two copyright cases that were presented to the Supreme Court during the 2024 term. As discussed in our earlier Alerts, the Court granted certiorari last term in Warner Chappell Music, Inc. v. Nealy on the specific question about the extent of recoverable damages for copyright infringement claims brought under the discovery rule. In rejecting a “three-year damages cap” on the recoverable damages and resolving a circuit split in favor of copyright plaintiffs, the Supreme Court was careful to limit its decision to that specific damages issue—and explicitly did not opine on whether a claim brought under the discovery rule was timely in the first place. Although three dissenting justices noted that they would have awaited a case “squarely presenting the question of whether the Copyright Act authorizes the discovery rule” before considering the question of damages, the Court subsequently denied certiorari on that very question in Hearst Newspapers, L.L.C., et al., v. Martinelli.

The Supreme Court’s approach to these questions was particularly relevant to the Second Circuit, which previously applied a three-year damages cap to curtail the discovery rule’s impact, resulting in the circuit split that was resolved in Warner Chappell. In Michael Grecco Prods., Inc. v. RADesign, Inc., et al., upon appeal of the lower court’s dismissal of a copyright infringement claim as time barred due the plaintiff’s alleged “sophistication” in detecting and litigating copyright infringements, the Second Circuit had occasion to reconsider the discovery rule in the wake of the Supreme Court’s guidance. As discussed in an earlier Alert, the Second Circuit reversed that dismissal, confirming that the discovery rule applied as the “one rule of accrual” in copyright infringement claims irrespective of a plaintiff’s alleged “sophistication.” The Second Circuit denied RADesign’s petition for rehearing en banc, which raised the threshold issue of the discovery rule’s general application to copyright infringement claims, beyond its limited application to sophisticated plaintiffs addressed in the decision below.

Petition for Certiorari

In petitioning for certiorari, RADesign invited the Supreme Court, again, to consider and reject the discovery rule’s application under the Copyright Act—not due to a circuit split, but due to the impact of the rule in undermining the certainty that it argues was intended under the Copyright Act. Specifically, RADesign argued that the “atextual discovery rule” should not apply under the Copyright Act despite its adoption in all numbered circuit courts of appeals. RADesign asserted that the courts of appeal’s unanimous adoption of the discovery rule is misguided due to, inter alia, principles of statutory interpretation and Supreme Court precedent in other contexts and, indeed, had been due to a “snowballing error.” The petition also raised concerns about the “harshness” of copyright liability, including the Copyright Act’s strict liability and statutory damages, as well as concerns that plaintiffs will rely on the discovery rule “to assert stale claims.” RADesign argued that the discovery rule removes the certainty ordinarily provided by statutes of limitations, leaving publishers and creators “at risk essentially forever” for copyright infringement claims, which, following Warner Chappell, can no longer be limited by a cap on the otherwise available damages. Accordingly, RADesign argued that the discovery rule will “impos[e] a permanent tax on creativity.”

In opposing the petition, Grecco argued for the Supreme Court to deny certiorari in light of its decision last term in Warner Chappell, denial of certiorari in Martinelli and the absence of a circuit split. In particular, Grecco argued that there is even less of a reason to decide this issue now than during the previous term because “at the time Warner Chappell was decided, the circuits were divided as to the application of the discovery rule; thus, a ruling that the statute disallowed any application of a discovery rule would have necessarily resolved the circuit split raised in Warner Chappell.”  From a practical standpoint, Grecco argued that the injury rule’s “assumption” that a plaintiff should be immediately aware of an injury “is particularly misguided in the copyright context.”

Although the Supreme Court has once again declined to provide a definitive answer to whether the discovery rule properly applies to copyright infringement claims, the Court has preserved the status quo by leaving the discovery rule intact. Thus, lower courts in all of the numbered circuits will apply the discovery rule to determine whether copyright infringement claims are timely. However, beyond that threshold issue, there remain factual determinations that are likely to arise, including when a plaintiff reasonably should have discovered an alleged infringement. These necessary determinations, and the lower courts’ approaches to the same, may create new opportunities for the Supreme Court to consider aspects of the discovery rule’s application to copyright infringement claims.

For More Information

If you have any questions about this Alert, please contact Mark Lerner, Alanna B. Newman, any of the attorneys in our Intellectual Property Practice Group or the attorney in the firm with whom you are regularly in contact.

Notes

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