United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED April 13, 2023 No. 22-20333 Lyle W. Cayce Clerk

Antonio Martinelli,

Plaintiff—Appellee,

versus

Hearst Newspapers, L.L.C.; Hearst Magazine Media, Incorporated,

Defendants—Appellants.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:21-CV-3412

Before Barksdale, Southwick, and Higginson, Circuit Judges. Stephen A. Higginson, Circuit Judge: A civil action for copyright infringement under the Copyright Act of 1976 must be “commenced within three years after the claim accrued.” 17 U.S.C. § 507(b). In Graper v. Mid-Continent Casualty Co., our court decided that this limitations period starts running “once the plaintiff knows or has reason to know of the injury upon which the claim is based,” which is also known as the discovery rule. 756 F.3d 388, 393 (5th Cir. 2014) (cleaned up). Today, appellants Hearst Newspapers, L.L.C. and Hearst Magazine Media, Incorporated (collective, “Hearst”) ask us to replace the discovery rule with Case: 22-20333 Document: 00516711690 Page: 2 Date Filed: 04/13/2023

No. 22-20333

a holding that the clock starts when an act of copyright infringement occurs. Hearst argues that Graper is no longer binding in light of the Supreme Court’s decisions in Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014), and Rotkiske v. Klemm, 140 S. Ct. 355 (2019). Since neither of those cases unequivocally overruled Graper, we AFFIRM. I. In 2015, Sotheby’s International Realty commissioned Antonio Martinelli to photograph Lugalla, an Irish estate owned by the Guinness family. 1 Martinelli took seven photographs of the property, and Lugalla was subsequently listed for sale. On March 7, 2017, Hearst Newspapers used Martinelli’s photographs in a web-only article, “The ‘Guinness Castle’ in Ireland Is on the Market,” which Hearst Newspapers published on websites associated with the Houston Chronicle, the San Francisco Chronicle, the Times Union, the Greenwich Time, and The Middletown Press. Six days later, Hearst Newspapers again used the photographs in a web-only article available on those websites. The next day, a different entity called Hearst Communications used four of the photographs in a web-only article published on a website associated with Elle Décor magazine. Martinelli first discovered the Houston Chronicle article on November 17, 2018. Between September 2019 and May 2020, Martinelli discovered the article on the websites of the San Francisco Chronicle, the Times Union, the Greenwich Time, and The Middletown Press. On February 19, 2020, Martinelli discovered the article on the Elle Décor

1 We adopt the parties’ spelling of the estate’s name, even though the more widely accepted spelling appears to be “Luggala.”

2 Case: 22-20333 Document: 00516711690 Page: 3 Date Filed: 04/13/2023

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website. Hearst has stipu