23-1078 Michael Grecco Prods., Inc. v. RADesign, Inc.
In the United States Court of Appeals For the Second Circuit _________________
August Term 2023 Argued: February 22, 2024 Decided: August 16, 2024
Docket No. 23-1078
MICHAEL GRECCO PRODUCTIONS, INC.,
Plaintiff-Appellant,
v.
RADESIGN, INC., DAVIS BY RUTHIE DAVIS, INC., RUTHIE ALLYN DAVIS, RUTHIE DAVIS, INC., DOES 1–5,
Defendants-Appellees.
_________________
Before: WESLEY, CHIN, and LEE, Circuit Judges. _________________
Michael Grecco Productions, Inc. (“MGP”) sued Ruthie Allyn Davis and associated entities (collectively “Ruthie Davis”) for copyright infringement. The United States District Court for the Southern District of New York (Abrams, J.) granted Davis’s motion to dismiss MGP’s complaint as barred by the Copyright Act’s three-year limitations provision. The district court reasoned that copyright holders “sophisticated” in detecting and litigating infringements cannot benefit from the discovery rule. The district court identified MGP as one of these so-called “sophisticated” plaintiffs, concluded that MGP should have therefore discovered Davis’s alleged infringement within three years of when it began, and determined that, because MGP’s complaint touted its “sophistication,” it was clear from the face of the complaint that the claims were time-barred.
On appeal, MGP argues that the discovery rule determines when its claims accrued, regardless of its general sophistication in detecting and litigating infringements, and that it was not clear from the face of its complaint or matters of judicial notice that its claims were time-barred. We agree. There is no “sophisticated plaintiff” exception to the discovery rule or to a defendant’s burden to plead and prove a statute-of-limitations defense.
Accordingly, we VACATE and REMAND for further proceedings.
FOR PLAINTIFF-APPELLANT: BRUCE W. BELLINGHAM, Spector Gadon Rosen Vinci, PC, Philadelphia, PA.
(Peter E. Perkowski, Perkowski Legal, PC, Los Angeles, CA, for American Society of Media Photographers, Inc., North American Nature Photography Association, American Photographic Artists, The National Press Photographers Association, Xposure Photo Agency Inc., Okularity, Inc., as amici curiae)
FOR DEFENDANTS-APPELLEES: EMILY B. KIRSCH (Paul Niehaus, Craig Tarasoff, on the brief), Kirsch & Niehaus PLLC, New York, NY. _________________
WESLEY, Circuit Judge:
This appeal concerns the discovery rule and a statute-of-limitations defense
in a copyright case where the plaintiff copyright holder is allegedly
2 “sophisticated” in detecting and litigating infringements. Plaintiff-Appellant
Michael Grecco Productions, Inc. (“MGP”) alleged that Defendants-Appellees
Ruthie Allyn Davis and associated entities and persons (collectively, “Ruthie
Davis”) used, without license, Michael Grecco’s copyrighted photos in connection
with their designer shoe business. More than four years after Davis’s alleged use
began, but less than a year after MGP’s alleged discovery of the use, MGP filed its
copyright infringement complaint.
The district court dismissed the complaint as barred by the Copyright Act’s
three-year limitations period, reasoning that “sophisticated” copyright
infringement plaintiffs cannot benefit from the discovery rule. In essence, the
district court imposed an injury-based date of accrual to copyright infringement
claims, and viewed the discovery rule as an exception not available to a
sophisticated plaintiff. The district court then concluded that because MGP’s
complaint touted MGP’s “sophistication” in discovering and litigating
infringements, it was clear from the complaint that MGP should have discovered
Ruthie Davis’s alleged infringement within three years of when it began.
We disagree. First, the discovery rule determines when an infringement
claim accrues under the Copyright Act, regardless of a copyright holder’s
3 “sophistication” in detecting and litigating infringements. Second, a copyright
holder’s general diligence or allegations of diligence in seeking out and litigating
infringements, alone, are insufficient to make it clear that the holder’s particular
claims in any given case should have been discovered more than three years before
the action’s commencement. There is no “sophisticated plaintiff” exception to the
discovery rule, or to a defendant’s burden to plead and prove a statute-of-
limitations defense.
Applying our well-established discovery rule and pleading standards, it
was not clear from the face of the complaint, or matters of judicial notice, that
MGP’s claims were barred by the statute of limitations as a matter of law. We
therefore vacate and remand.
BACKGROUND
MGP is a photography studio and business owned by Michael Grecco, a
commercial photographer. He also presents himself as an industry leader in
copyright registration and enforcement, and did so in this case as well. MGP’s
complaint described Grecco’s “efforts to educate photographers concerning the
benefits of copyright registration,” as well as his view that, in the age of the
internet, copyright infringement endangers “the economic viability of
4 photography.” App’x at 8–9 (Compl. ¶¶ 10–11). The complaint also detailed how
Grecco promoted “his system of routine copyright registration procedures,”
teaching workshops and addressing conferences, and insisted that, “in keeping
with his advice to the profession,” Grecco himself “spends time and money to
actively search for hard-to-detect infringements, and he enforces his rights under
the Copyright Act.” Id.
Court records independently confirm Grecco’s efforts. 1 Since 2010, Grecco
and MGP have filed numerous cases seeking to enforce copyrights. App’x at 51–
97. 2
This case arose out of Grecco’s January 2017 photos of model Amber Rose—
wearing shoes designed by Ruthie Davis in the photos. 3 According to MGP, a
1 On a motion to dismiss, a court may consider extrinsic materials if they are integral to the complaint or “an appropriate subject for judicial notice.” Glob. Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 156 (2d Cir. 2006). “A court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.” Id. at 157 (citation omitted). 2As referenced, the Appendix provides a list of more than one hundred copyright suits brought by MGP or Grecco. See App’x at 51–97. We note, however, that the list appears to also include cases not brought by MGP or Grecco, and some that are not copyright related. See, e.g., id. at 63, 65, 69, 70, 93–94. 3 MGP alleged that it registered its copyright in the photos in February 2019. 5 magazine published Grecco’s photos of Rose in August 2017. MGP claimed that
Davis republished, without license, at least two of the Rose photos on her brand’s
website and a social media platform.
MGP alleged that Davis’s use of the photos began “on August 16, 2017 and
continued thereafter.” App’x at 12 (Compl. ¶ 30). MGP further alleged that it
“discovered the infringement on February 8, 2021.” Id. (Compl. ¶ 31). On October
12, 2021—more than four years after Davis’s infringement allegedly began, but
less than a year after MGP’s alleged discovery—MGP filed its complaint against
Davis, claiming copyright infringement under the Copyright Act, 17 U.S.C. § 501.
Davis moved to dismiss the complaint as barred by the Copyright Act’s
three-year limitations provision. The district court granted the motion, agreeing
that MGP’s complaint was time-barred. The district court first observed that,
under our precedent, the discovery rule determines when copyright infringement
claims accrue. Purporting to apply the discovery rule, the district court stated that
MGP “must have been unable, with the exercise of due diligence, to discover the
infringing activity prior to August 16, 2020, three years after the infringing activity
allegedly began.” Michael Grecco Prods., Inc. v. RADesign, Inc., 678 F. Supp. 3d 405,
408 (S.D.N.Y. 2023) (internal quotation marks omitted).
6 Next, the district court concluded that MGP’s “relative sophistication as an
experienced litigator in identifying and bringing causes of action for unauthorized
uses of Grecco’s copyrighted works leads to the conclusion that it should have
discovered, with the exercise of due diligence,” Davis’s alleged infringement
“within the three-year limitations period.” Id. at 409.
The district court relied on Minden Pictures, Inc. v. Buzzfeed, Inc., 390 F. Supp.
3d 461 (S.D.N.Y. 2019) (“Minden”), and its decisions in Lixenberg v. Complex Media,
Inc., No. 22-CA-354 (RA), 2023 WL 144663 (S.D.N.Y. Jan. 10, 2023), and Minden
Pictures, Inc. v. Complex Media, Inc., No. 22-CV-4069 (RA), 2023 WL 2648027
(S.D.N.Y. Mar. 27, 2023), for the premise “that the relative sophistication of the
plaintiffs left them unable to rely on the discovery rule to resurrect time-barred
copyright infringement claims.” Id. In those cases, the sophisticated plaintiff’s
“late discovery” was deemed “unreasonabl[e]” or “implausible.” Id. at 410. The
district court acknowledged, however, that other judges in the district had “not
uniformly accepted the rationale applied by the Minden line, and the Second
Circuit has not yet weighed in either way.” Id. at 409–10 (citing Parisienne v. Scripps
Media, Inc., 19 Civ. 8612 (ER), 2021 WL 3668084, at *4 (S.D.N.Y. Aug. 17, 2021);
7 Hirsch v. Rehs Galleries, Inc., 18-CV-11864 (VSB), 2020 WL 917213, at *5 (S.D.N.Y.
Feb. 26, 2020)).
Nevertheless, the district court concluded that, because MGP’s complaint
“itself alleged” MGP’s so-called sophistication, it was “clear from the face of the
complaint” that MGP’s claims were barred by the statute of limitations as a matter
of law. Id. at 410–11 (citation omitted).
The district court offered MGP the opportunity to amend the complaint “to
allege a separately occurring act of distribution or publication” of the Rose photos
that “would bring a copyright infringement claim within the three-year limitations
period.” Id. at 412. After MGP declined to amend, explaining that it would stand
on the allegations of the original complaint, the district court dismissed the case.
This appeal ensued.
DISCUSSION
“The lapse of a limitations period is an affirmative defense that a defendant
must plead and prove.” Staehr v. Hartford Fin. Servs. Grp., 547 F.3d 406, 425 (2d Cir.
2008) (citing Fed. R. Civ. P. 8(c)(1)). “However, a defendant may raise an
affirmative defense in a pre-answer Rule 12(b)(6) motion if the defense appears on
the face of the complaint.” Id. Of course, affirmative defenses, like the statute of
8 limitations, “often require[] consideration of facts outside of the complaint and
thus [are] inappropriate to resolve on a motion to dismiss.” Kelly-Brown v. Winfrey,
717 F.3d 295, 308 (2d Cir. 2013). Dismissal under Rule 12(b)(6) is therefore
appropriate only if “it is clear from the face of the complaint, and matters of which
the court may take judicial notice, that the plaintiff’s claims are barred as a matter
of law.” Sewell v. Bernardin, 795 F.3d 337, 339 (2d Cir. 2015) (internal quotation
marks and citation omitted).
We review a district court’s grant of a motion to dismiss “de novo, accepting
all factual allegations in the complaint as true and drawing all reasonable
inferences in favor of the plaintiff.” Melendez v. Sirius XM Radio, Inc., 50 F.4th 294,
298 (2d Cir. 2022) (internal quotation marks and citation omitted). “The
application of a statute of limitations presents a legal issue and is also reviewed de
novo.” Horror Inc. v. Miller, 15 F.4th 232, 241 (2d Cir. 2021) (citation omitted).
The district court erred when it concluded that MGP’s complaint was barred
by the Copyright Act’s three-year limitations provision as a matter of law. We
The Copyright Act provides that “[n]o civil action shall be maintained under
the [Act] unless it is commenced within three years after the claim accrued.” 17
9 U.S.C. § 507(b). As to when “the claim accrued,” this Court has previously
considered which rule of accrual Congress intended to employ: the injury rule—
the claim accrues when an injury (e.g., an infringement) occurs; or the discovery
rule—the claim accrues when a diligent plaintiff discovers or should have
discovered the injury (e.g., an infringement). See Psihoyos v. John Wiley & Sons, Inc.,
748 F.3d 120, 124–25 (2d Cir. 2014); see also Merchant v. Levy, 92 F.3d 51, 56 (2d Cir.
1996); Stone v. Williams, 970 F.2d 1043, 1048 (2d Cir. 1992). We held “that the text
and structure of the Copyright Act . . . evince Congress’s intent to employ the
discovery rule, not the injury rule.” Psihoyos, 748 F.3d at 124. Ten other circuits
concur. 4
Consequently, “an infringement claim does not ‘accrue’ until the copyright
holder discovers, or with due diligence should have discovered, the
infringement.” Id. (emphasis added). A “diligent plaintiff” is able “to raise claims
4See Webster v. Dean Guitars, 955 F.3d 1270, 1276 (11th Cir. 2020); Media Rights Techs., Inc. v. Microsoft Corp., 922 F.3d 1014, 1022 (9th Cir. 2019); Graper v. Mid-Continent Cas. Co., 756 F.3d 388, 393 (5th Cir. 2014); Diversey v. Schmidly, 738 F.3d 1196, 1200–01 (10th Cir. 2013); William A. Graham Co. v. Haughey, 568 F.3d 425, 437 (3d Cir. 2009); Comcast of Illinois X v. Multi-Vision Elecs., Inc., 491 F.3d 938, 944 (8th Cir. 2007); Roger Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d 383, 390 (6th Cir. 2007); Santa-Rosa v. Combo Recs., 471 F.3d 224, 227–28 (1st Cir. 2006); Gaiman v. McFarlane, 360 F.3d 644, 653 (7th Cir. 2004); Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 796–97 (4th Cir. 2001). 10 about even very old infringements if he discovered them within the prior three
years.” Warner Chappell Music, Inc. v. Nealy, 144 S. Ct. 1135, 1138 (2024) (assuming
without resolving that the discovery rule governs accrual of copyright
infringement claims). 5
Here, the district court correctly identified our precedent that the discovery
rule governs the accrual of copyright infringement claims, but erred in its
application.
At the outset, the district court miscalculated the appropriate three-year
limitations period. MGP filed its complaint on October 12, 2021. Thus, to be
timely, MGP must have been unable, with the exercise of due diligence, to discover
the infringing activity prior to October 12, 2018, three years before the complaint was
filed. See Psihoyos, 748 F.3d at 124–25; see also 17 U.S.C. § 507(b) (civil action under
the Copyright Act must be “commenced within three years after the claim
5Ruthie Davis suggests that the Supreme Court has cast doubt on applying the discovery rule to determine when a copyright infringement claim accrues. However, the Supreme Court has “never decided whether . . . a copyright claim accrues when a plaintiff discovers or should have discovered an infringement, rather than when the infringement happened.” Warner Chappell, 144 S. Ct. at 1139. The Supreme Court has recognized that “[t]he overwhelming majority of courts use discovery accrual in copyright cases,” Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 670 n.4 (2014) (citation omitted), including “many Courts of Appeals . . . (11 at last count),” Warner Chappell, 144 S. Ct. at 1139. 11 accrued”). By contrast, the district court held that MGP “must have been unable,
with the exercise of due diligence, to discover the infringing activity prior to
August 16, 2020, three years after the infringing activity allegedly began.” Michael
Grecco Prods., 678 F. Supp. 3d at 408 (internal quotation marks omitted; emphasis
added).
Although the district court claimed to apply the discovery rule, its
calculation actually employed the injury rule; it started the three-year clock when
the infringement allegedly began, while also implying that some extension of time
might be available if MGP was unable to discover the infringement within those
three years. In essence, the calculation incorrectly reflected the discovery rule as
an equitable extension and not the rule of accrual. 6
In the context of the Copyright Act’s three-year limitations provision, the
discovery rule is the rule of accrual, not an equitable tolling or estoppel doctrine.
The discovery rule is not an exception to the injury rule that only applies to some
6 The discovery rule, as a rule of accrual, is “sometimes confused with the concept of fraudulent concealment of a cause of action,” an equitable tolling or estoppel doctrine. Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002). But even this confusion would not explain the district court’s error here. In either case—whether applying the discovery rule or the fraudulent concealment doctrine—the plaintiff has the full limitations period to file an action after the earlier of when he discovered or should have discovered his cause of action. See id. at 82; Psihoyos, 748 F.3d at 124. 12 infringement claims; it is not a benefit for which only some plaintiffs qualify.
Rather, “the discovery rule, not the injury rule” determines, in the first place, when
a copyright infringement claim accrues. Psihoyos, 748 F.3d at 124 (emphasis
Moreover, as the rule of accrual, the discovery rule does not require a
plaintiff to discover his claim within the statutory duration following the
offending conduct. That would just be another way of describing the injury rule.
Under the discovery rule, a plaintiff has the length of time it takes, using due
diligence, to discover the infringement; only from that point does the statute of
limitations begin to run. See id. at 124–25. 7
Setting its initial miscalculation aside, the district court compounded its
error by making explicit its view that the discovery rule applies to copyright
infringement claims brought by some plaintiffs but not others. It observed that
other district court decisions had reasoned that “the relative sophistication of the
plaintiffs left them unable to rely on the discovery rule to resurrect time-barred
7Of course, the fact that the discovery rule is the rule of accrual does not prevent plaintiffs from additionally invoking, if appropriate, equitable tolling doctrines. See Petrella, 572 U.S. at 681. 13 copyright infringement claims.” Michael Grecco Prods., 678 F. Supp. 3d at 409
(citing Lixenberg, 2023 WL 144663, at *3; Complex Media, 2023 WL 2648027, at *3)
(emphasis added); see also Minden, 390 F. Supp. 3d at 467. The district court then
applied the same rationale here, concluding that MGP’s “relative sophistication as
an experienced litigator in identifying and bringing” copyright infringement
claims rendered it ineligible for the “benefit of the so-called discovery rule.” See
Michael Grecco Prods., 678 F. Supp. 3d at 408, 409.
This “sophisticated plaintiff” rationale has no mooring to our cases. First,
to the extent this rationale arose out of treating the discovery rule as an equitable
doctrine for which only some plaintiffs in some circumstances will qualify, it is
wrong. As already noted, because we have previously determined that the
discovery rule is Congress’s intended rule of accrual for civil actions under the
Copyright Act, it is the rule in every such action and not an equitable exception to
the injury rule. Psihoyos, 748 F.3d at 124.
Second, to the extent the district court’s rationale recognizes the discovery
rule as one of accrual, but nevertheless suggests different rules of accrual for
different plaintiffs—the discovery rule for copyright holders not sophisticated in
detecting and litigating infringements, but the injury rule for copyright holders
14 who are—it also is wrong. We have never understood the Copyright Act to
employ different rules of accrual for different plaintiffs. The Supreme Court has
made clear that the Act’s “clock is a singular one.” Warner Chappell, 144 S. Ct. at
1139, 1140 (holding that “[t]he Copyright Act contains no separate time-based limit
on monetary recovery”). For civil actions, the Act establishes one limitations
period and employs one rule of accrual. See 17 U.S.C. § 507(b). In this Circuit,
based on this Court’s understanding of the “text and structure of the Copyright
Act,” that is “the discovery rule, not the injury rule.” Psihoyos, 748 F.3d at 124.
Third, even if the district court’s “sophisticated plaintiff” rationale is merely
a presumption that sophisticated plaintiffs can discover infringements
immediately or nearly so, such that the date of earliest diligent discovery would
always be the date of injury (or approximately so), the rationale remains flawed. A
plaintiff’s “sophisticated” nature does not automatically relieve a defendant of her
burden to plead and prove a Copyright Act limitations defense. The date on which
a copyright holder, with the exercise of due diligence, would have discovered an
infringement—or whether the alleged date of discovery reflected a lack of due
diligence—is a fact-intensive inquiry that cannot be determined from the general
nature of a copyright holder’s “sophistication” alone. A sophisticated plaintiff
15 may well discover an infringement sooner than their less practiced neighbor. But
the answer to the discovery question turns on due diligence—the fact-intensive
inquiry of the copyright holder’s efforts to discover the infringement. An overly
simplified “sophisticated plaintiff” presumption is antithetical to the nature of the
task.
The district court therefore erred in concluding that it was clear from the
face of MGP’s complaint that its claims were time-barred. The district court
reasoned that a plaintiff’s “late discovery” of an alleged infringement was
“unreasonable[]” or “implausible” when, as here, the complaint also alleged that
the plaintiff generally took sophisticated and diligent efforts to detect
infringements. Michael Grecco Prods., 678 F. Supp. 3d at 409, 410. In this case, the
district court pointed to the complaint’s allegations about Grecco’s advocacy for
zealous copyright enforcement and his own efforts to seek out copyright
infringements, namely that he “spends time and money to actively search for hard-
to-detect infringements.” Id. at 411 (quoting Compl. ¶ 11).
But the district court’s concern that it was “unreasonable” or “implausible”
that MGP’s claims were timely was unfounded. MGP alleged that it discovered
Davis’s infringement on February 8, 2021, and commenced this action on October
16 12, 2021. On a motion to dismiss, MGP’s allegations were to be taken as true, see
Melendez, 50 F.4th at 298; the commencement date is well within the three-year
period from the discovery date. While the district court apparently concluded that
MGP’s alleged February 2021 discovery of Davis’s August 2017 infringement was
“late,” Michael Grecco Prods., 678 F. Supp. 3d at 410, it did not find that MGP had
failed to exercise due diligence in the years before its alleged discovery. Nor did
it make a factual finding as to when and why MGP “with due diligence should have
discovered” the alleged infringement, much less confirm that this hypothetical
date was outside the three-year period before the complaint was filed. See
Psihoyos, 748 F.3d at 124 (emphasis added).
Indeed, those findings would have required consideration of facts outside
the complaint, and therefore could not be made on Davis’s motion to dismiss. This
was not unusual. Affirmative defenses, like the statute of limitations, “often
require[] consideration of facts outside of the complaint and thus [are]
inappropriate to resolve on a motion to dismiss.” Kelly-Brown, 717 F.3d at 308.
Here, MGP’s complaint did not address whether Davis’s infringement was
relatively easy or difficult to discover, what technology was available for
discovering infringements during the period Davis was allegedly using the Rose
17 photos, whether MGP was then using any such technology, with what other
methods and at what frequency MGP was then seeking to uncover infringements,
or anything else about what specific efforts MGP was then making to detect
infringements.
MGP’s general allegations of diligence did not address, much less resolve
these questions. They did not make it “clear from the face of the complaint” that
MGP’s failure to discover, years earlier, Davis’s alleged use of the Rose photos was
attributable to a lack of due diligence, and that MGP should have discovered
Davis’s alleged use of the Rose photos more than three years before the
complaint’s filing. See Sewell, 795 F.3d at 339 (citation omitted). If anything, with
the inferences properly construed in its favor, MGP’s allegations suggested, albeit
very generally, the opposite—that it was exercising due diligence and thus its
February 2021 discovery of Davis’s alleged infringement was as soon as diligently
possible.
Moreover, even if the district court’s concern—that it was unreasonable or
implausible that MGP’s claims were timely—had been well-founded, a likelihood,
even a high one, that claims are untimely is not enough to make it “clear” that they
18 are. See id. (citation omitted). To hold otherwise would improperly shift the
pleading burden for an affirmative defense from the defendant to the plaintiff.
To survive a motion to dismiss, a plaintiff must plausibly allege a claim,
meaning “the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In a copyright infringement case, a
plaintiff must prove two elements: “(1) ownership of a valid copyright, and (2)
copying of constituent elements of the work that are original.” Abdin v. CBS Broad.
Inc., 971 F.3d 57, 66 (2d Cir. 2020) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340, 361 (1991)). Timeliness, however, is not an element of a copyright
infringement claim. “The lapse of a limitations period is an affirmative defense
that a defendant must plead and prove.” Staehr, 547 F.3d at 425 (citing Fed. R. Civ.
P. 8(c)(1)) (emphasis added); see also GEOMC Co., Ltd. v. Calmare Therapeutics Inc.,
918 F.3d 92, 98 (2d Cir. 2019) (describing pleading standards for an affirmative
defense).
Importantly, “[t]he pleading requirements of the Federal Rules of Civil
Procedure do not compel a litigant to anticipate potential affirmative defenses,
such as the statute of limitations, and to affirmatively plead facts in avoidance of
19 such defenses.” Clark v. Hanley, 89 F.4th 78, 93–94 (2d Cir. 2023) (internal quotation
marks and citation omitted). In fact, “[p]laintiffs are under no obligation to plead
facts supporting or negating an affirmative defense in the complaint.” In Re: Nine
West LBO Sec. Litig., 87 F.4th 130, 144 (2d Cir. 2023) (emphasis added).
Applying these standards here, MGP’s complaint needed to plausibly allege
a claim of copyright infringement, but the complaint did not need to allege,
plausibly or otherwise, that the claim was timely. MGP’s complaint could have
therefore survived Davis’s motion to dismiss even without its allegations about
MGP’s general level of diligence or the date it discovered Davis’s infringement.
Because MGP did offer those allegations, the district court was correct to consider
whether they rendered it clear from the face of the complaint that the claims were
time barred. But as described, they did not.
Nor did MGP’s past litigation of infringement claims—unrelated to those
here and against other defendants—somehow make it clear that the infringement
claims in this action were untimely. The fact of MGP’s past litigation experience
was properly subject to judicial notice. See Glob. Network Commc’ns, Inc., 458 F.3d
at 156. However, past litigation involving different infringements by different
20 defendants in no way proved that MGP’s alleged failure to discover Davis’s use of
the Rose photos for several years was due to a lack of due diligence.
On remand, Davis may seek to plead her statute of limitations defense in
her answer to MGP’s complaint, and if proper, seek summary judgment on that
defense. But at this stage, even if MGP’s allegations suggested a copyright holder
generally “sophisticated” in detecting copyright infringements, they did not make
it clear from the face of the complaint that MGP’s claims in this action were time-
barred, or otherwise relieve Davis of her burden to plead and prove her statute of
limitations defense. 8
8 We do not now address whether or to what extent a court—when making the fact- intensive determination of when exactly a copyright holder should have, with the exercise of due diligence, discovered an alleged infringement—may properly consider the copyright holder’s level of so-called “sophistication.” In other words, may courts properly conclude that the diligence due by a more sophisticated copyright holder is greater than that due by a less sophisticated copyright holder? We do not answer that question here. As described above, in this case, the district court dismissed MGP’s complaint before reaching the fact-intensive diligence inquiry, instead applying a misunderstanding of the discovery rule and a wrong presumption that, as a matter of law, every “sophisticated” plaintiff should discover all infringements within three years of occurrence. We therefore leave for another day—in an appeal where the district court has reached the fact-intensive diligence inquiry—questions about what, if any, role a particular plaintiff’s sophistication may play in that inquiry. 21 CONCLUSION
For the reasons set forth above, we VACATE the district court’s dismissal
orders and REMAND for further proceedings.