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When does infringement actually happen?
Court Clarifies When a Copyright Infringement Claim Accrues
by Joel Hecker

The Copyright Act states that a claim for copyright infringement must be brought within the statute of limitations. That time period, as set forth in the Act, is "within three years after the claim accrued.” The courts have had difficulty in determining how to define when a claim "accrues."
We have not as yet had any clear answer to this basic question. The various circuit courts are split on the issue and even the district courts within circuits do not show uniformity. The difficulty arises in determining whether the actions accrue at the time of the infringement, which is known as the "Injury Rule,”or for the time when the plaintiff or copyright owner knew or should have known about the infringement, which is called the "Discovery Rule."
This issue recently came up again in the United States District Court for the Southern District of New York, in Roberts v. Keith (March 7, 2006). The Court, in this case, stated that except for certain kinds of tolling or extension of the statute of limitations, the standard for determining accrual of infringement actions under the Copyright Act should be the Injury Rule.
A CONCLUSION
The Court came to this conclusion after an analysis of the legislative history and court decisions, including the determination in 2004 of the Supreme Court of the United States in Auscape International v. National Geographic Society. The New York Court relied upon the Supreme Court's position, which seems to have tipped the balance away from the Discovery Rule, that had theretofore been the more prevalent one used, to the Injury Rule.
The Court also rejected that plaintiff's claim of a "continuing infringement.” This is the argument that an infringement of a given work, which commenced before the three- year period, ought to still be actionable if it is continuing and ongoing, as long as infringing activity occurred during the three-year look-back period as well. In other words, if the continuing acts occurred prior to and during the three-year period, then the infringement should be actionable, but only limited to damages during the current three years. The Court rejected this concept as not being the law.

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What Ever Happened to B&W ?

Veteran photo researchers will remember the days in the last century when black-and-white photos were the norm. Most early publications were produced in b&w. Color was visually reserved for the cover. Eventually the balance shifted to color.
That meant shuffling transparencies (slides) between supplier, photo editor, designer, printer, back to researcher and eventually returned to the photographer or agency. Color brought new spark to books and magazines, but the handling and distribution wasn't pretty.
"Oh to be back to the easy days of B&W!" a researcher recently said to me. "You never had to worry about the safe return of B&W's. They were expendable. Not so with slides."
Nowadays very few emerging stock photographers, entertain the idea of taking a black & white stock photo. They surmise B&W would be more an experience for the soul, not for the sale.
B&W is no longer popular among photo editors at books and magazines (our targets here at Photosource International). In rare cases (about 5%), b&w still claims attention in commercial photography. And b&w claims even more attention in fine arts photography, where photographers take a day job to be able to sustain their efforts to produce art photography.
If you flip through current newsstand magazines, you’ll see very few b&w photographs. The general public, it was proved long ago, prefers color to b&w. (Is your TV still b&w?) Editors always conform to management’s marketing research.
The change to color started in the mid-80’s, and by the mid-90’s the changeover was almost complete. Only small publications with limited budgets or a special focus use b&w today.
You may wonder how well b&w fared in the early days of stock photography. In my own case, back in the early 60’s I put my b&w photos with one of the few early stock agencies. The agency was called “Photo Researchers.” (The agency still exists today.)
When we moved to our farm in 1966, I began also selling my b&w’s via the mailbox. The delivery system was simple, and I encouraged photobuyers at publishing houses to keep my b&w pictures on file at their central library. They would send me a check each time they used one of my pictures. The honor system worked.
When I wrote the first edition of my book, “Sell & ReSell Your Photos,” in 1981, I advised photographers to use the mailbox as their delivery system. The system was easy. I would send off a package of my b&w’s “for consideration” to a potential photobuyer whose photo needs matched one of my specialization areas. If my photos were accepted, very often that meant I’d found a client for life, unless the theme of the publishing housed changed, which rarely happened. From time to time, I updated my collection of b&w photos at the publishing house with new 8x10 prints, and the photobuyer returned photos that were no longer needed. These I placed in a file in our barn, which my grandchildren one day can sell to PBS or an historical photo archive.
The Balance Changes
Slowly, in the mid-80’s the preference for color grew. Photobuyers now wanted color transparencies. This gave rise to the age of “lost images.” Many photographers and photobuyers alike, found they were incapable of tracking the transparencies they were handling. Lawsuits multiplied and photobuyers began dealing only with a circumscribed number of stock photographers who were savvy in their business acumen. Veteran photo researchers and photographers who are reading this will well remember the turbulent transparency mess we had to live through before the Digital Era came along and gave us a break.

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