I guess I’ve been thinking that the supposed distinction is the idea that there really isn’t such a thing as a “continuing infringement” under Petrella. A new use (such as a new DVD release) is deemed a separate act of infringement (even if there was a much earlier infringing use like a movie-theater release), whereas it’s deemed a one-time-only event when an alleged owner discovers that someone else is claiming a conflicting ownership right.

But as I read and think further about all this, I wonder again at that distinction. For instance, why shouldn’t a new release of a work trigger another opportunity for an allegedly jilted collaborator to have her day in court on a claim for joint authorship/accounting of profits vis-a-vis that new release? I think I understand you to be making that argument here — i.e., if there’s a separate accrual approach to infringement claims under the Copyright Act, then that approach should apply to all claims under the Act — but please feel free to let me know if I’m misunderstanding your position.

One further thought: perhaps the discovery rule could be equally applied to both types of claims. The rule would be that the discovery (where plaintiff knew or should’ve known) of a use of the work at issue–whether it’s alleged to be an infringing use or a use in which profits were misdirected–triggers a new statutory clock, but damages/disgorgement cannot go back further than from that discovered use. In other words, it’d be all about uses, not works, which is where I think the Warhol case may be further leading us (in an admittedly different context of course).

Best,
Tim