ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Friday, September 9, 2005

Cases: New infringement doesn't re-start K claim

California_flag_11 New acts of copyright infringement may reignite the statute of limitations for copyright, but they don’t resuscitate claims for breach of contract and breach of implied contract, says the U.S. Court of Appeals for the Ninth Circuit in a case involving the film Terminator 2.

Back in 1987, Filia and Constantinos Kourtis copyrighted a synopsis of concept called The Minotaur, with the hopes of some day making a movie.  The minotaur is half-man, half-bull, and can transform himself into several shapes.  William Green wrote a screenplay based on the concept.  In 1989, the screenplay reached Cameron’s hands, and he expressed an interest in perhaps making the movie.  In 1991, Cameron released Terminator II: Judgment Day.  Green filed a copyright infringement suit.  Defendants won a summary judgment motion on the grounds that the two stories were not substantially similar.  The Kourtises were not part of the suit.

Sometime after 1998, the Kourtises filed suit against Cameron for copyright infringement, breach of implied contract, breach of oral contract, and breach of confidence.  The lawsuit was dismissed on grounds of collateral estoppel and statute of limitations.

There was no collateral estoppel, said the court, because the Kourtises were not in privity with Green, and therefore were not bound by the judgment in that case; the fact that they’d had the chance to intervene was irrelevant.  As to the statute of limitations, a new act of infringement can “re-start the clock” for a copyright infringement claim.  Since Terminator II had recently been released on DVD, and Terminator III might also violate the copyright, the statute of limitations period started anew.  But that didn’t help the breach of contract claims, implied or otherwise.  Any breach by Cameron would have occurred a decade earlier, and the limitations period for such contract is two years.  The contract claims were therefore barred, but the copyright claims could go forward.  Kourtis v. Cameron, 2005 U.S. App. LEXIS 17146 (9th Cir.,Aug. 15, 2005).

[Frank Snyder]

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