Amicus Curiae Brief — RADesign, Inc., et al., Petitioners v. Michael Grecco Productions, Inc.

No. 24-768

In the

Supreme Court of the United States

RADESIGN, INC., et al.,

Petitioners,

v.

MICHAEL GRECCO PRODUCTIONS, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Second Circuit

BRIEF OF AMICI CURIAE THE AMERICAN

APPAREL & FOOTWEAR ASSOCIATION,

THE COUNCIL OF FASHION DESIGNERS OF

AMERICA, INC., AND THE ACCESSORIES

COUNCIL IN SUPPORT OF PETITIONER

John P. O’Herron

Counsel of Record

Zachary D. Cohen

ThompsonMcMullan, P.C.

100 Shockoe Slip, Third Floor

Richmond, VA 23219

(804) 649-7545

joherron@t-mlaw.com

Counsel for Amici Curiae

120380

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1.

The Amici Need Predictability in Copyright

Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2.

Congress Created a Predictable Accrual

Rule; This Court Should Enforce it . . . . . . . . . . . 7

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Boddie v. Connecticut,

401 U.S. 371 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Cmty. for Creative Non-Violence v. Reid,

490 U.S. 730 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Davis v. Blige,

505 F.3d 90 (2d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . .7

Design Basics, LLC v. Signature Constr., Inc.,

994 F.3d 879 (7th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . 4

Doran v. Compton,

645 F.2d 440 (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . 7

Gabelli v. S.E.C.,

568 U.S. 442 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Lyons P’ship, L.P. v. Morris Costumes, Inc.,

243 F.3d 789 (4th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . 5

Michael Grecco Prods., Inc. v. RADesign, Inc.,

112 F.4th 144 (2d Cir. 2024) . . . . . . . . . . . . . . . . . . . . . 5

Ord. of R.R. Telegraphers v. Ry. Express Agency,

321 U.S. 342 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Petrella v. Metro-Goldwyn-Mayer, Inc.,

572 U.S. 663 (2014) . . . . . . . . . . . . . . . . . . . . . . 4, 5, 7, 8

iii

Cited Authorities

Page

Rotella v. Wood,

528 U.S. 549 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Starz Ent., LLC v. MGM Domestic TV Distrib., LLC,

39 F.4th 1236 (9th Cir. 2022) . . . . . . . . . . . . . . . . . . . . 5

Wilson v. Garcia,

471 U.S. 261 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Wood v. Carpenter,

101 U.S. 135 (1879) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

Constitutional Provisions

U.S. Const. art. 1, § 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statutes and Rules

17 U.S.C. § 507(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Sup. Ct. R. 37.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

Copy r ight T roll ing, A n Empi r ica l Study,

100 Iowa L. Rev. 1105 (2015) . . . . . . . . . . . . . . . . . . . . 7

S. Rep. No. 85-1014 (1957), reprinted at 1957

U.S.C.C.A.N. 1961-62 . . . . . . . . . . . . . . . . . . . . . . . . . . 5

S. Rep. No. 85-1014 (1957), reprinted in 1957

U.S.C.C.A.N. at 1962 . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1

INTERESTS OF AMICI CURIAE1

Amici and their members share an interest in

predictability and certainty in copyright protection and

litigation under the Copyright Act. As brands, producers,

and retailers who both assert and defend against copyright

claims, Amici write to share their perspective on the

unpredictability and uncertainty that plagues copyright

litigation across the country.

The American Apparel & Footwear Association is a

national trade association representing more than 1,100

name-brand apparel, footwear, travel goods, and other

sewn product companies, and their suppliers. Through

its public policy and political initiatives, AAFA protects

American brands, their products, and their intellectual

property, and provides guidance to its members on

litigation-related issues affecting their work.

The Council of Fashion Designers of America, Inc.,

is a trade association with a membership of over 450 of

America’s foremost womenswear, menswear, jewelry, and

accessory designers. The CFDA provides its members with

thought-leadership and business development support. It

also supports emerging designers and students through

professional development programming and numerous

grant and scholarship opportunities. Through the CFDA

Foundation, Inc., CFDA also mobilizes its membership

1. Pursuant to Rule 37.2, the parties have been notified of the

intent to file this amicus brief and do not object. No counsel for any

party has authored this brief in whole or in part, and no person

other than the amici or their counsel have made any monetary

contribution intended to fund the preparation or submission of

this brief.

2

to raise funds for charitable causes and engage in civic

initiatives.

The Accessories Council is a trade association

dedicated to helping accessories, jewelry, and footwear

companies grow their businesses. The membership

includes over 350 members, from large companies to

start-ups. The Council hosts over 100 opportunities

for its members each year—including awards, events,

educational programming, legislative support, mentoring,

press support, and sourcing assistance—and publishes a

weekly newsletter and a quarterly digital magazine. Many

of its members have small budgets and limited resources

for protecting their designs from copies.

SUMMARY OF ARGUMENT

Predictability in the law is a must. Whether it be the

substantive law governing human affairs or the procedural

law that governs legal disputes as they arise, predictable

rules help order society and allow economic growth.

Statutes of limitations are at the top of this list, governing

the timing of disputes and allowing would-be litigants to

assess risk and govern their affairs accordingly.

Despite Congress delivering predictability in the

Copyright Act, courts across the country have undermined

it by injecting a discovery rule into copyright litigation.

This case presents an opportune time for this Court to

restore predictability as Congress intended.

3

ARGUMENT

1. The Amici Need Predictability in Copyright

Litigation.

An “organized and cohesive society” requires the

“erection and enforcement of a system of rules” that enable

citizens to govern their affairs and definitively settle their

differences in an orderly, predictable manner.” Boddie

v. Connecticut, 401 U.S. 371, 374 (1971). “[R]egularized

resolution of conflicts”—or, what Justice Harlan called

the “injection of the rule of law”—makes possible the sort

of “interdependent action that enables [citizens] to strive

for achievements without the anxieties that would beset

them in a disorganized society.” Id.

Few rules are as vital to this “regularized, orderly

process of dispute settlement,” see id., than those

governing statutes of limitations. “Statutes of limitation

are vital to the welfare of society” by “giving security and

stability to human affairs.” Wood v. Carpenter, 101 U.S.

135, 139 (1879). By conclusively barring litigation, statutes

of limitation account for the basic reality that “time is

constantly destroying the evidence of rights.” Id. In “their

conclusive effects,” statutes of limitation “are designed

to promote justice by preventing surprises through

the revival of claims that have been allowed to slumber

until evidence has been lost, memories have faded, and

witnesses have disappeared.” Ord. of R.R. Telegraphers

v. Ry. Express Agency, 321 U.S. 342, 348–49 (1944). With

time, “the right to be free of stale claims” prevails “over

the right to prosecute them.” Id.

4

One of the “basic policies” of limitations periods is

“certainty about a plaintiff’s opportunity for recovery and

a defendant’s potential liabilities.” Rotella v. Wood, 528

U.S. 549, 555 (2000). Knowing the end date of potential

exposure to litigation enforcement is critical to achieve

the goals of limitations periods. See Gabelli v. S.E.C., 568

U.S. 442, 448–49 (2013). “[E]ven wrongdoers are entitled

to assume that their sins may be forgotten.” Id. (quoting

Wilson v. Garcia, 471 U.S. 261, 271 (1985)).

These principles are particularly important to

copyright law. “Copyright law strikes a practical balance

between the intellectual-property rights of authors and

the public interest in preserving the free flow of ideas

and information and encouraging creative expression, all

in furtherance of the constitutional purpose to ‘promote

the Progress of Science and useful Arts.’” Design Basics,

LLC v. Signature Constr., Inc., 994 F.3d 879, 882 (7th Cir.

2021) (quoting U.S. Const. art. 1, § 8). From the artists who

design, to the manufacturers who produce, to the retailers

who sell—everyone in the economic chain of product

creation and distribution relies on predictable rules to

develop, innovate, and grow. These rules fuel the rise not

just of industry, but of the American economy writ large.

Unfortunately, and as the Petitioner makes clear,

this predictability is missing in copyright litigation. The

Copyright Act states that a claim under the Act must be

“commenced within three years after the claim accrued.”

17 U.S.C. § 507(b). This provision was specifically meant

to provide uniformity and predictability in place of the

disjointed time periods limiting copyright actions in the

states. See Petrella v. Metro-Goldwyn-Mayer, Inc., 572

U.S. 663, 670 (2014) (“The federal limitations prescription

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governing copyright suits serves two purposes: (1)

to render uniform and certain the time within which

copyright claims could be pursued; and (2) to prevent the

forum shopping invited by disparate state limitations

periods, which ranged from one to eight years.”); S. Rep.

No. 85-1014, at 2 (1957), reprinted at 1957 U.S.C.C.A.N.

1961-62. Time and again, Congress has amended the

Copyright Act to “enhance[e] predictability and certainty

of copyright ownership.” See Cmty. for Creative NonViolence v. Reid, 490 U.S. 730, 749 (1989) (discussing 1976

amendments).

Predictability should have followed. After all, “[a]

claim ordinarily accrues when a plaintiff has a complete

and present cause of action” allowing them to “file suit

and obtain relief.” Petrella at 671 (cleaned up). In other

words, “when an infringing act occurs.” Id. But through

a hodgepodge of reasons—some worse than others—

courts across the country opted instead for holding that

a claim accrues when it is discovered. As articulated by

the Second Circuit here, “an infringement claim does

not accrue until the copyright holder discovers, or with

due diligence should have discovered, the infringement.”

Michael Grecco Prods., Inc. v. RADesign, Inc., 112 F.4th

144, 150 (2nd Cir. 2024) (cleaned up). 2

2. Depending on the court, though, the precise parameters of

this rule vary. See Starz Ent., LLC v. MGM Domestic TV Distrib.,

LLC, 39 F.4th 1236, 1238 (9th Cir. 2022) (finding no “smoke” to put

Starz on notice that its copyrights were being infringed despite

MGM licensing over 300 movies and television shows to third-party

streaming services in violation of the licensing agreement); Lyons

P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 796 (4th Cir.

2001) (“a claim accrues when one has knowledge of a violation or

is chargeable with such knowledge”) (cleaned up).

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Aside from being atextual, this discovery rule is

plagued with unpredictability. This case is a textbook

example of that. Ruthie Davis designed a pair of shoes

which, in 2017, Michael Grecco photographed on a model.

Those photos were published in a magazine and, months

later, Ruthie Davis republished the photographs that

showcased her shoes. Over four years later, Grecco sued,

claiming that he had discovered Davis’ allegedly infringing

activity—public posts on her website and Twitter—only in

February 2021. While Grecco waited four years, nothing

in the law stops him—or those like him—from sticking his

head even further in the sand and suing even later based

on his allegedly delayed discovery.

Predictably, this unpredictability hampers the Amici

and their members. In the fashion, footwear, apparel, and

accessories industries, brands are constantly creating

new products and retailers are selling them. From their

creation to their launch, these products rely on innovation

and novelty. Product announcement and marketing often

includes music in the commercial domain and the use of

the internet and social media to reach consumers. While

reasonable copyright issues may arise, they gradually

become unreasonable with interminable and varied

limitations periods.

The cost of innovation and reaching consumers is too

often found in defending claims many years after products

have been placed in circulation. So, for example, a product

announcement on social media can, many years later, be

the subject of a copyright claim. The growth of social media

and its use in marketing products exacerbates this risk.

Unsurprisingly, then, baseless lawsuits asserting vague

or generic copyrights for the sole purpose of monetary

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gain proliferate in a world where a litigant controls the

supposed discovery of their claim. See generally Copyright

Trolling, An Empirical Study, 100 Iowa L. Rev. 1105,

1108-09 (2015) (assessing the scope of copyright trolling

litigation).

Business strategy and risk assessment require more

certitude than this. Indeed, some of Amici’s members

face insurance coverage problems because insurance

companies have assessed the risk exposure as too high

when statutory liability exists for claims unlimited by

the passage of time. See generally Doran v. Compton,

645 F.2d 440, 450 (5th Cir. 1981) (noting how certainty

regarding limitations periods “allows an insurance

company to predict more accurately the potential losses

for a policy year” and set rates accordingly). Delayed

risk in the form of a discovery rule for copyright claims

undermines innovation and confidence and threatens the

growth and economic strength of these industries.

2. Congress Created a Predictable Accrual Rule; This

Court Should Enforce it.

Rules that “inject uncertainty and unpredictability

into copyright ownership” run counter to Congress’ goals

for the Copyright Act. Davis v. Blige, 505 F.3d 90, 105 (2d

Cir. 2007). The plain language of the Copyright Act and

this Court’s jurisprudence on accrual demands correcting

the error of the Second Circuit in this case and those of

the other circuits in applying a discovery rule to Copyright

Act claims.

A claim under the Copyright Act accrues when the

infringement occurs. Petrella, 571 U.S. at 670. It is at that

8

point—not the later discovery of the infringement—that

a plaintiff “has a complete and present cause of action.”

Id. (internal quote omitted). And with each infringement,

the accrual period runs anew:

[T]he separate-accrual rule attends the

copyright statute of limitations. Under that rule,

when a defendant commits successive violations,

the statute of limitations runs separately from

each violation. Each time an infringing work

is reproduced or distributed, the infringer

commits a new wrong. Each wrong gives rise

to a discrete “claim” that “accrue[s]” at the time

the wrong occurs. In short, each infringing act

starts a new limitations period.

Petrella, 572 U.S. at 671.

Aside from being the only accrual rule that is faithful

to the Copyright Act, the injury rule is both predictable and

workable in practice. From content moderation algorithms

to artificial intelligence, tools abound for copyright owners

to detect infringements and file claims within three years

of that infringement. Plus, as Congress noted in passing

the three-year limitations period, “due to the nature of

publication of works of art[,] generally the person injured

receives reasonably prompt notice or can easily ascertain

any infringement of his rights.” See S.Rep. No. 85–1014,

at 2, reprinted in 1957 U.S.C.C.A.N. at 1962. And with

the benefit of the separate-accrual rule, rights holders

remain protected for continued infringements when an

initial reproduction or distribution goes unnoticed. So,

for example, each time a publication or website listing of

a copyrighted work occurs, a new three-year limitations

9

period begins for that infringement and a copyright owner

can recover damages for that period.

Simply put, the injury rule has the benefit of not just

being faithful to the Copyright Act and Congress’ intent,

but also of being workable for all parties in copyright

litigation. This Court should end the discovery rule and

restore predictability to the law.

CONCLUSION

For these reasons, and those articulated by the

Petitioner and other Amici, this Court should grant the

Petition and clarify once and for all that the injury rule

applies to Copyright Act claims.

Respectfully submitted,

John P. O’Herron

Counsel of Record

Zachary D. Cohen

ThompsonMcMullan, P.C.

100 Shockoe Slip, Third Floor

Richmond, VA 23219

(804) 649-7545

joherron@t-mlaw.com

Counsel for Amici Curiae