Recent decisions in the Southern District of Florida continue to shape how courts approach the statute of limitations in copyright infringement cases. The February 27, 2025 decision in Affordable Aerial Photography, Inc. v. Beach Town Real Estate, LLC provides important insights into how courts apply the “discovery rule” in copyright cases and what constitutes reasonable diligence by copyright holders.
If you have been sued by Affordable Aerial Photography (AAP) or received a demand letter from them, or been threatened by anyone else related to a copyright infringement claim, then feel free to contact us. We keep all communications confidential and respond quickly.
Case Background
The dispute involved aerial photographs taken by Affordable Aerial Photography, which alleged that Beach Town Real Estate infringed on its copyrights in two primary ways: first, through a real estate agent’s social media posts showing a Jupiter Lighthouse photograph without copyright management information, and second, through Beach Town’s own Facebook post featuring a Sailfish Marina photograph from February 2017.
While the court granted Beach Town summary judgment on all counts, the reasoning behind dismissing Count IV (the Sailfish Marina photograph) is particularly instructive for copyright holders and potential defendants.
The Discovery Rule Explained
Under the Copyright Act, infringement claims must be brought within three years from when the claim “accrues.” But when exactly does a claim accrue? Courts have recognized two competing approaches:
- Injury Rule: The claim accrues when the infringement actually occurs, regardless of when the plaintiff learns about it.
- Discovery Rule: The claim accrues when the plaintiff either learns or reasonably should have learned that their rights were being violated.
Judge Rosenberg noted that neither the Supreme Court nor the Eleventh Circuit has definitively settled which rule applies in copyright cases. However, he acknowledged the clear trend in the Southern District of Florida to apply the discovery rule.
The Reasonable Diligence Requirement
What makes this case particularly significant is the court’s emphasis on the “reasonable diligence” component of the discovery rule. The court found that even though Affordable Aerial Photography may have only actually discovered Beach Town’s 2017 Facebook post in June 2024, the claim was still time-barred because:
- The Facebook post was “publicly accessible at all times” since 2017;
- Affordable Aerial had been “vigorously enforcing its copyright interests” since at least 2017, filing over 150 copyright infringement claims in the district; and
- Many of these prior cases involved Palm Beach real estate agencies similar to Beach Town.
Given these circumstances, the court concluded that through reasonable diligence, Affordable Aerial should have discovered the infringement well before August 4, 2021 (three years before the amended complaint).
Implications for Copyright Holders
This decision carries several important lessons:
- Active Monitoring Expectation: Courts may expect plaintiffs who actively enforce their copyrights to have robust monitoring systems in place. The more aggressively you enforce your rights in some instances, the more courts may expect you to be diligent in monitoring potential infringements broadly.
- Industry Focus Matters: If you’ve previously targeted specific industries (here, real estate agencies), courts may expect you to thoroughly monitor similar entities within that industry.
- Public Accessibility Factor: When infringing content has been publicly available for years, it becomes increasingly difficult to argue that reasonable diligence wouldn’t have uncovered it.
Practical Takeaways
For copyright holders:
- Implement systematic monitoring of your copyrighted works, especially in industries where you’ve previously discovered infringement;
- Document your monitoring efforts to demonstrate reasonable diligence; and
- Consider using automated tools to search for potential infringements online.
For potential defendants:
- The age of alleged infringement matters, particularly if it occurred in publicly accessible forums;
- A copyright holder’s history of enforcement activities may be relevant to determining what constitutes “reasonable diligence”; and
- Keep records of how publicly accessible any potentially disputed content has been.
As copyright litigation continues to evolve in the digital age, the interpretation of the discovery rule and what constitutes reasonable diligence will remain critical in determining when the statute of limitations clock begins to run. Heitner Legal, as a leader in defending against copyright infringement claims, will continue to keep a close eye on any developments in this space.