United States District Court, E.D. Louisiana
LARRY G. PHILPOT
NEW ORLEANS TOURISM MARKETING CORPORATION
ORDER & REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE
the Court is defendant New Orleans Tourism Marketing
Corporation's (“NOTMC”) motion 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
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. He earns his living by licensing his
photographs to others.On October 4, 2009, Philpot took a
photograph of Willie Nelson performing in St.
Louis. On September 5, 2012, he registered the
photograph with the United States copyright office as part of
a collection of photographs.
first displayed the Willie Nelson photograph (the
“photograph”) on the internet on May 31,
2011. 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.” The license
provides that anyone may use the photograph provided they
follow certain parameters, including attributing the
photograph to its creator. 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).”Additionally, the photograph contains
metadata that both identifies Philpot as the creator of the
photograph and indicates that the photograph is
unspecified date, NOTMC posted the photograph on a website
that it owns and operates. 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. Philpot alleges that, as a
result, NOTMC infringed his copyright pursuant to 17 U.S.C.
§ 501 by “publishing, copying, and displaying the
[photograph].” He alleges that he did not discover the
infringements until October 1, 2015. 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.
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)).
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).
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.
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.
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.
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). 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.
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
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).
also argues that, even if the rule applies, Philpot has not
alleged any reason why he could not have discovered the
alleged infringements sooner. 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