Yesterday’s Supreme Court decision on the copyright of the Raging Bull screenplay involved both copyright law and laches. At issue was how long the screenwriter’s heir could wait to sue MGM for permission to renew the copyright. Copyright was originally sold to a company in 1976, and the heir waited until 2009 to sue for copyright infringement. She did communicate with MGM her displeasure during this time, but did not sue. The lower courts dismissed her claim on laches (as a refresher, laches is an affirmative defense used when the plaintiff waits an “unreasonable” amount of time to bring a claim and the defendant is injured by that delay).

In reversing the 9th Circuit, Justice Ginsburg cites to Oneida Indian Nation v. County of Oneida 470 U.S. 226, 244, n.16 (1985) “(“[A]pplication of the equitable defense of laches in an action at law would be novel indeed.”).” It would be! But wait! That’s exactly what the Second Circuit did in Cayuga Indian Nation v. New York (relying on City of Sherrill v. OIN), as Justice Breyer points out in his dissent: “Lower courts have come to similar holdings in a wide array of circumstances—often approving not only of the availability of the laches defense, but of its application to the case at hand. E.g., Cayuga Indian Nation of N. Y. v. Pataki, 413 F. 3d 266, 274–277 (CA2 2005) (laches available in a “possessory land claim” in which the District Court awarded damages, whether “characterized as an action at law or in equity,” and dismissing the action due to laches);”. No one cited to City of Sherrill, perhaps because that case only “evokes” the doctrine of laches.

And in a majority footnote:

“13 Assuming Petrella had a winning case on the merits, the Court of Appeals’ ruling on laches would effectively give MGM a cost-free license to exploit Raging Bull throughout the long term of the copyright. The value to MGM of such a free, compulsory license could exceed by far MGM’s expenditures on the film.”

Because we wouldn’t want laches to be used to achieve THAT to result.