678 F.Supp.3d 405
S.D.N.Y.2023Background
- Plaintiff Michael Grecco Productions owns copyrights in photos of Amber Rose taken for Inked Magazine; the works were registered Feb. 19, 2019.
- Defendants (Ruthie Davis entities) allegedly posted at least two of the Rose photographs on their website and on Twitter beginning Aug. 16, 2017 and “continued thereafter.”
- Plaintiff alleges he discovered the infringement on Feb. 8, 2021 and filed this suit in October 2021; defendants moved to dismiss as time‑barred under the Copyright Act’s three‑year limitations period.
- The complaint emphasizes Grecco’s sophistication: he leads workshops, published an instructional interview about registration, spends resources searching for infringements, and has filed many prior copyright suits (over 130).
- The District Court held the face of the complaint showed the claims were untimely under the discovery rule and that the complaint failed to allege a discrete later republication; dismissal was granted without prejudice and leave to amend was allowed within 30 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under the discovery rule | Grecco says he did not discover the infringement until Feb 8, 2021 (within 3 years of filing). | Given Grecco's sophistication and practices, he should have discovered the postings earlier; suit is time‑barred. | Court: complaint itself shows unreasonable late discovery as a matter of law; claim dismissed as time‑barred. |
| Separate‑accrual (successive violations) | Continued posting or a later republication restarts the limitations clock. | Mere continued presence on a website does not create a new infringement that restarts the clock. | Court: mere ongoing presence does not trigger separate accrual; plaintiff must plead a specific later republication. |
| Leave to amend | Plaintiff seeks opportunity to plead facts showing a separate, later republication. | Defendants argued dismissal appropriate based on pleadings. | Court granted dismissal without prejudice and allowed 30 days to amend if plaintiff can in good faith allege later publication. |
Key Cases Cited
- Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120 (2d Cir. 2014) (adopts discovery rule for accrual of copyright claims)
- Petrella v. Metro‑Goldwyn‑Mayer, Inc., 572 U.S. 663 (2014) (separate‑accrual rule for successive violations; caution against treating continuing harm as new violations)
- Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406 (2d Cir. 2008) (statute‑of‑limitations dismissal may be appropriate when affirmative defense is apparent on the face of the complaint)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must state a plausible claim)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standards requiring more than labels and conclusions)
- Minden Pictures, Inc. v. BuzzFeed, Inc., 390 F. Supp. 3d 461 (S.D.N.Y. 2019) (plaintiff sophistication can defeat discovery‑rule tolling on the face of the complaint)
- Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec. LLC, 797 F.3d 160 (2d Cir. 2015) (guidance favoring leave to amend after dismissal)
- McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184 (2d Cir. 2007) (discusses standards for leave to amend)