September 2, 2014

Tenth Circuit: Copyright Co-ownership Claim Barred by Statute of Limitations

The Tenth Circuit Court of Appeals published its opinion in Cooper v. NCS Pearson, Inc. on Monday, August 19, 2013.

Julia Copeland Cooper (Copeland) appealed from a grant of summary judgment dismissing on statute of limitations grounds her Copyright Act claims against NCS Pearson, Inc. for co-ownership of a psychological test. Copeland co-created a psychological test instrument called the Battery for Health Improvement (BHI) with Mark Disorbio, her husband at the time, and Daniel Bruns. Copeland is a physical therapist and Dr. Disorbio and Dr. Bruns are both clinical psychologists. After creating the BHI,  Copeland, Bruns, and Disorbio formed a corporation called Battery for Health and Illness, Inc. (BHI, Inc.). Bruns and Disorbio were the corporation’s directors and Copeland was its president and registered agent. In 1993, Bruns and Disorbio assigned their intellectual property rights in the BHI to the corporation. Each assignment stated that Dr. Bruns and Dr. Disorbio were the joint authors and owners of the BHI and the “absolute proprietor[s] of the copyright and all attendant intellectual property rights of the Work.”

Also in 1993, Bruns, Disorbio, and BHI, Inc. granted defendant’s predecessor corporation “all right, title, and interest” in the BHI, granting the right to publish and market the test in exchange for royalties. The Publication Agreement with NCS defined the “authors” of the BHI as Bruns, Disorbio, and BHI, Inc., and warranted that they “exclusively own all Intellectual Property Rights” in the BHI “and that no other person has an option, claim, or right” to the test. The Publication Agreement did not identify Copeland as an author. It was signed by Copeland for BHI, Inc., Bruns, Disorbio, and a representative of NCS.

The statute of limitations for claims under the Copyright Act is three years. The Tenth Circuit agreed with the district court that the 1993 Agreement placed Ms. Copeland on notice that her ostensible copyright co-ownership claim was in jeopardy and thereby started the statute of limitations running.

In 1996, NCS first published the BHI. The cover stated that it was “by” Dr. Bruns and Dr. Disorbio, “with contributions by” Ms. Copeland. She was also listed in the “About the Authors” section. NCS began to send royalty checks to BHI, Inc., to the attention of Copeland as president. She disbursed 50% of the money to Bruns and 50% to Disorbio.

Even if Copeland’s claims had not accrued in 1993, they accrued no later than 1996. Awareness that one is not being credited in the same manner as other authors starts the statute of limitations running for copyright co-ownership claims. Copeland was also aware in 1996 she was not receiving royalties but that Bruns and Disorbio were. Awareness that one is not receiving royalties also puts one on notice of the basis for a copyright co-ownership claim. Because Copeland did not bring her action until 2010, the court affirmed.

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