Copyright infringement can happen behind your back. In many cases, creators only discover that their work has been used without permission years after infringement first occurred. That is where the discovery rule comes in. The discovery rule extends the time to file a copyright infringement lawsuit. However, it also raises one important question: How far back can you recover damages? Understanding how the discovery rule works is essential to knowing when you can sue and what you may actually recover.

What Is the Discovery Rule?

Under the Copyright Act of 1976, infringement claims must generally be filed within three years of when the claim accrues. However, courts may adopt a flexible approach in some cases. By applying the discovery rule, the three-year clock does not start until the copyright owner discovers, or reasonably should have discovered, the infringement.

For example, if your work was used without permission in 2021, but you only discovered it in 2025, and you have reasonably been monitoring your rights, under the discovery rule, your claim may still be timely if filed within three years of that discovery date.

How the Discovery Rule Affects Recovery

Oftentimes, when you bring forth a copyright infringement claim, you may be seeking damages. But how much can you recover once your claim is allowed to proceed? This is an issue that courts have wrestled with: whether recovery should be limited to the three years before filing the lawsuit, or whether you can recover damages for the entire period of infringement, even if it stretches further than three years back.

A notable case involving Music Specialist Inc. and its owner, Sherman Nealy, v. Warner Chappell Music, Inc, Atlantic Recording Corporation, and Artist Publishing Group addresses this issue. The plaintiffs alleged that their copyrighted works had been used without proper authorization eight years before they discovered infringement. The Eleventh Circuit Court of Appeals held that if a claim is timely under the discovery rule, a plaintiff may recover damages for the full period of infringement, not just the three years prior to filing the lawsuit. This is based on how the Copyright Act is structured. While the statute of limitations governs when a lawsuit must be filed, a separate provision states what damages can be recovered—and that damages provision does not expressly limit recovery to a three-year period.

It’s worth noting that while the discovery rule can extend the timeline, this does not mean you should not monitor how your work is used. Courts still expect copyright owners to exercise reasonable diligence in protecting their work. If you had access to information that would have revealed infringement earlier but failed to act, the discovery rule may not apply. You cannot ignore signs of infringement and later assume that the discovery rule will save your claim.

Whether you are pursuing a claim or defending one, timing and recovery are essential elements to consider. Working with an experienced copyright litigation attorney can help determine applicable timelines and protect your interests.

Contact the Copyright Attorneys at Revision Legal

For more information, contact the experienced Copyright Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.

The Copyright Statute of Limitations: Three Years, But Measured From When?

Section 507(b) of the Copyright Act (17 U.S.C. § 507(b)) provides that no civil copyright infringement action may be maintained unless commenced within three years after the claim accrued. The central dispute courts have wrestled with for decades is what “accrued” means. Two competing interpretations exist: the injury rule (the claim accrues when the infringement occurs, full stop) and the discovery rule (the claim accrues when the plaintiff knew or reasonably should have known of the infringement).

The Supreme Court addressed this split directly in Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014), holding that under the copyright statute’s rolling three-year window, a plaintiff can sue for infringements occurring within the three years before filing — but not for earlier infringements, regardless of when they were discovered. The majority declined to endorse or reject the discovery rule as a matter of accrual, leaving it alive as an equitable doctrine in many circuits. Then in Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024), the Supreme Court held that if the discovery rule applies and a plaintiff timely files under it, they can recover damages for all infringing acts — including those occurring more than three years before filing — not just damages from the three-year pre-suit window. This decision significantly expands the damages potential for plaintiffs who discover old infringements late.

The Discovery Rule in Practice: What Triggers the Clock

Under the discovery rule, the limitations period begins when the plaintiff knew or, in the exercise of reasonable diligence, should have known of the infringement. This means a creator who discovers an infringement today may be able to reach back years for damages — but only if they can demonstrate that they could not reasonably have discovered the infringement earlier. Courts apply an objective standard: what would a reasonably diligent copyright owner have discovered, and when?

Defendants frequently challenge the reasonableness of delayed discovery. They argue that if the infringing content was publicly available on a website, social media platform, or published work, the copyright holder had constructive notice and the limitations clock started running at the date of publication. Courts have split on this question. Some hold that widespread public availability is enough to start the clock; others require evidence that the plaintiff had actual knowledge or a specific reason to investigate. Practical implication: copyright owners with large portfolios of published work should implement monitoring systems — reverse image search, content ID matching, and periodic audits — because a court may find that you “should have known” earlier if the infringement was publicly visible for years.

Rolling Infringement: Each Unauthorized Act Is a Separate Claim

One of the most practically significant aspects of copyright damages law is the concept of rolling infringement. Each unauthorized reproduction, distribution, performance, or display of a copyrighted work constitutes a separate infringing act, giving rise to a separate claim with its own accrual date. Under the Supreme Court’s reasoning in Petrella, a defendant who has been continuously infringing for ten years faces a new claim for each infringing act within the three years before the lawsuit is filed.

This means a website that has been displaying an infringing image since 2015 continues to infringe as of today. The plaintiff can sue and recover damages for the infringing use during the three years preceding the complaint (or further back if the discovery rule applies). The defendant’s argument that the lawsuit is “time-barred” because the original infringement occurred years ago often fails — the continuous infringement means claims are always accruing within the limitations window. For defendants, this underscores the urgency of removing infringing content as soon as a claim is identified: every day of continued use is a new act of infringement extending the damages period.

Statutory Damages and the Registration Timing Requirement

The discovery rule and rolling infringement give plaintiffs expanded time to recover damages, but the nature of those damages depends heavily on registration timing. Under 17 U.S.C. § 412, a copyright owner cannot recover statutory damages or attorney fees for infringements that commenced before copyright registration — unless registration was made within three months of the work’s first publication. This is a critical distinction: actual damages (the copyright owner’s lost profits or the infringer’s profits attributable to the infringement) are always available, but statutory damages (up to $150,000 per work for willful infringement) require timely registration.

For works published today without a timely registration, an infringement that began before you register can only yield actual damages — which may be difficult to prove and may be small if the work is not widely licensed. For works registered promptly, the full statutory damages regime is available for all infringing acts within the limitations period. This creates a strong practical incentive to register every commercially valuable work promptly after creation or publication. Registration costs $65 per work (single-application); a well-timed registration can unlock six-figure damages exposure for infringers.

Laches: The Equitable Defense to Delayed Copyright Claims

Even where a copyright claim is technically timely under the statute of limitations and discovery rule, defendants may invoke the equitable defense of laches — arguing that the plaintiff’s unreasonable delay in filing suit caused them prejudice. The Supreme Court in Petrella addressed laches directly in the copyright context, holding that laches cannot bar prospective relief (injunctions) for timely claims, and can bar damages only in the rare case where extraordinary circumstances make monetary relief inequitable. The Court emphasized that Congress set the limitations period in § 507(b), and courts should not use laches to override that congressional judgment for claims timely under the statute.

Practically speaking, laches is a weak defense in most copyright cases if the plaintiff files within three years of discovery. It is most relevant in egregious cases where a plaintiff watched an infringer invest heavily in a project, said nothing, waited until the project was commercially successful, and then sued. Even in those cases, laches typically limits damages rather than barring the suit entirely. The copyright attorneys at Revision Legal represent both plaintiffs enforcing infringement claims and defendants responding to them. If you believe your work has been infringed — no matter how long ago — contact us through our contact page to evaluate your options.