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Philpot v. New Orleans Tourism Marketing Corp.

United States District Court, E.D. Louisiana

January 9, 2019

LARRY G. PHILPOT
v.
NEW ORLEANS TOURISM MARKETING CORPORATION

         SECTION I

          ORDER & REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE

         Before the Court is defendant New Orleans Tourism Marketing Corporation's (“NOTMC”) motion[1] to dismiss plaintiff Larry Philpot's (“Philpot”) complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the motion is denied.

         I.

         Accepting the facts in Philpot's complaint as true, they are as follows: Philpot is a freelance photographer who specializes in taking photographs of musicians during live performances.[2] He earns his living by licensing his photographs to others.[3]On October 4, 2009, Philpot took a photograph of Willie Nelson performing in St. Louis.[4] On September 5, 2012, he registered the photograph with the United States copyright office as part of a collection of photographs.[5]

         Philpot first displayed the Willie Nelson photograph (the “photograph”) on the internet on May 31, 2011.[6] He offered the photograph through a website called Wikimedia “for distribution, public display, and public digital performance under a Creative Commons Attribution 2.0 Generic license.”[7] The license provides that anyone may use the photograph provided they follow certain parameters, including attributing the photograph to its creator.[8] On Wikimedia, Philpot provided a description for the photograph that included his name and website. He also specified, “You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).”[9]Additionally, the photograph contains metadata that both identifies Philpot as the creator of the photograph and indicates that the photograph is copyrighted.[10]

         On an unspecified date, NOTMC posted the photograph on a website that it owns and operates.[11] According to Philpot, although NOTMC displayed his photograph, the photograph was not attributed to him in accordance with the terms of the Creative Commons license.[12] Philpot alleges that, as a result, NOTMC infringed his copyright pursuant to 17 U.S.C. § 501 by “publishing, copying, and displaying the [photograph].”[13] He alleges that he did not discover the infringements until October 1, 2015.[14] Philpot also contends that NOTMC violated 17 U.S.C. § 1202 by allegedly improperly removing and altering the copyright information in the photograph's metadata.[15]

         II.

         Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a district court may dismiss a complaint or part of a complaint when a plaintiff fails to set forth well-pleaded factual allegations that “raise a right to relief above the speculative level.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). The complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 547)).

         A facially plausible claim is one in which “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. If the well-pleaded factual allegations “do not permit the court to infer more than the mere possibility of misconduct, ” then “the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)) (alteration in original).

         The Court will generally not look beyond the factual allegations in the pleadings to determine whether relief should be granted. See Hicks v. Lingle, 370 Fed.Appx. 497, 498 (5th Cir. 2010); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In assessing the complaint, however, a court must accept all well-pleaded facts as true and liberally construe all factual allegations in the light most favorable to the plaintiff. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). “Dismissal is appropriate when the complaint ‘on its face show[s] a bar to relief.'” Cutrer v. McMillan, 308 Fed.Appx. 819, 820 (5th Cir. 2009) (quoting Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)).[16]

         III.

         NOTMC moves for the dismissal of Philpot's complaint, contending (1) that both of Philpot's claims are time-barred and (2) that the complaint fails to state a claim for relief for copyright infringement because Philpot does not hold a valid copyright registration for the photograph.

         A.

         “A statute of limitations may support dismissal under Rule 12(b)(6) where it is evident from the plaintiff's pleadings that the action is barred and the pleadings fail to raise some basis for tolling or the like.” Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003). It is not evident from Philpot's complaint that his action is time-barred. To the contrary, based solely on the face of the complaint, Philpot's claims are timely.

         The parties do not dispute the relevant statute of limitations. Pursuant to the Copyright Act, both of Philpot's claims are subject to a three-year statute of limitations. 17 U.S.C. § 507(b) (“No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.”). The Fifth Circuit applies the discovery rule to copyright actions; therefore, under the Copyright Act, “a . . . claim accrues ‘when [the party] knew or had reason to know of the injury upon which the claim was based.'” Jordan v. Sony BMG Music Entm't, 354 Fed.Appx. 942, 945 (5th Cir. 2009) (quoting Pritchett v. Pound, 473 F.3d 217, 220 (5th Cir. 2006)); see also Groden v. Allen, 279 Fed.Appx. 290, 294 (5th Cir. 2008).[17] Philpot alleges that he discovered the copyright infringements on October 1, 2015, and he filed this lawsuit on October 1, 2018-exactly three years later. NOTMC argues that the United States Supreme Court's decision in Petrella v. MGM, 572 U.S. 663 (2014), calls into question the applicability of the discovery rule in copyright actions.[18]

         In Petrella, the Supreme Court held that the equitable doctrine of laches (“unreasonable, prejudicial delay in commencing suit”) could not bar a copyright infringement claim under the Copyright Act. Petrella, 572 U.S. at 667, 679. However, the Court explicitly passed on the question of whether the discovery rule may nevertheless be invoked in a copyright action.[19]

         Without further guidance, this Court will apply the discovery rule in accordance with Fifth Circuit precedent. See, e.g., Design Basics, LLC v. Forrester Wehrle Homes, Inc., 305 F.Supp.3d 788, 792-93 (N.D. Ohio 2018); Energy Intelligence Grp., Inc. v. CHS McPherson Refinery, Inc., 300 F.Supp.3d 1356, 1366 (D. Kan. 2018); Mitchell v. Capitol Records, LLC, 287 F.Supp.3d 673, 678 (W.D. Ky. 2017); Design Basics LLC v. J & V Roberts Invs., Inc., 140 F.Supp.3d 1266, 1282-82 (E.D. Wis. 2015). The Court also notes that, although the Fifth Circuit has not directly addressed Petrella's effect on the use of the discovery rule in copyright actions, it has discussed and applied the rule since Petrella was decided. See, e.g., Graper v. Mid-Continent Cas. Co., 756 F.3d 388, 393 & n.5 (5th Cir. 2014) (summarizing the discovery rule as the “proper inquiry” to determine when a claim has accrued under the Copyright Act); Aspen Tech., Inc. v. M3 Tech., Inc., 569 Fed.Appx. 259, 264 (5th Cir. 2014) (explicitly noting that the discovery rule applies to copyright infringement claims).

         NOTMC also argues that, even if the rule applies, Philpot has not alleged any reason why he could not have discovered the alleged infringements sooner.[20] But under the federal pleading standards, “a plaintiff typically is not required to plead, in the complaint, facts that negate an affirmative defense.” Jaso v. Coca Cola Co., 435 Fed.Appx. 346, 352 (5th Cir. 2011). While discovery may reveal information that forms the basis for summary judgment on the issue of the timeliness of Philpot's claims, the Court has before it a motion to dismiss. A statute of limitations ...


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