If you spend any time keeping track of new copyright infringement filings (Am I the only one?), you'll start to notice the same names pop up as plaintiffs over and over again. For photographer Michael Grecco, his experience with copyright litigation and knowledge of infringement recently led to the dismissal of an infringement claim in Michael Grecco Prods., Inc. v. RADesign, Inc., No. 21 Civ. 8381 (S.D.N.Y.).
Grecco is a commercial photographer who specializes in celebrity portraits. But, in addition to his photography work, Grecco also alleged in his Complaint his extensive experience with copyright protection and infringement. In addition to having filed multiple copyright infringement cases, Grecco also claimed that he "leads workshops, addresses conferences and has released an educational video to assist artists in protecting their intellectual property from on-line content piracy," participated in an interview, entitled “How (And Why) To Make Copyright Registration Part of Your Workflow,” describing “his system of routine copyright registration procedures for the benefit of the profession in order to combat content theft," and “spends time and money to actively search for hard-to-detect infringements, and enforces his rights under the Copyright Act.”
But Grecco's efforts apparently failed to spot the alleged infringement at issue in this case until more than three years after the use began. Grecco took the photograph at issue--a shot of Amber Rose wearing Ruthie Davis shoes--in 2017 and it was first published by defendants shortly thereafter, but Grecco did not sue until October 12, 2021.
Defendants filed a motion to dismiss, claiming that the Copyright Act's three-year statute of limitations barred Grecco's suit. Although the Court acknowledged that the discovery rule applied--meaning that the statute of limitations began to run when Grecco knew, or reasonably should have known, about the infringement, which he claimed wasn't until February 8, 2021--it nevertheless dismissed the case on statute of limitations grounds. The Court found that "Plaintiff’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, that the Rose Photographs were posted within the three-year limitations period." In so-holding, the Court followed Minden Pictures, Inc. v. Buzzfeed Inc., 390 F. Supp. 3d 461 (S.D.N.Y.), in which a different S.D.N.Y. judge had dismissed a suit filed by Minden Pictures, another seasoned copyright plaintiff, in 2019 given Minden's experience as a copyright plaintiff and methods for monitoring the use of its photographs online.
However, as the Court acknowledged, not all cases against similarly-experienced copyright plaintiffs have gone this way. In Parisienne v. Scripps Media, Inc., No. 19 Civ. 8612, 2021 WL 3668084 (S.D.N.Y. Aug. 17, 2021), another District Court in the Southern District of New York found that even an experienced copyright plaintiff "does not have a general duty to police the internet for infringements” of its copyrighted works. Similarly, in Hirsch v. Rehs Galleries, Inc., No. 18 Civ. 11864, 2020 WL 917213 (S.D.N.Y. Feb. 26, 2020), the court rejected the argument that a plaintiff who had previously discovered infringement of his photographs, and had hired a firm that “specializes in searching the internet for infringing conduct,” should have discovered infringing activity within the three-year statute of limitations period. As the Court in Grecco noted, while other cases might properly survive a motion to dismiss, in this case, Grecco's workshops, time spent looking for infringements and participation in a how-to guide for copyright plaintiffs counseled in favor of dismissal here, and it thus felt inclined to follow Minden.
The Court went on to reject Grecco's argument that he should be saved by the "separate accrual rule". The rule holds that "when a defendant commits successive violations, the statute of limitations runs separately from each violation" (Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 671 (2014)), and Grecco argued that each time the webpage containing the photograph was served by defendants' server to a user constituted a new violation--and thus started the statute of limitations anew. The Court disagreed, finding that the photograph's continued presence on a website was not a new infringement, but a "continuing violation" that did not give rise to a new claim. And, further, this argument was at odds with the allegations in the Complaint that the infringing “use of the images begun (sic) on August 16, 2017 and continued thereafter.” However, the Court granted Grecco leave to amend to specifically allege a separate violation within the statute of limitations.
What does this all mean? It has been clear for a while now that certain rights holders, particularly in the photography space, have shifted attention from licensing photographs to suing over them. The Grecco decision and Minden before it suggest that whether a plaintiff was reasonably diligent in discovering a claim can be informed by what efforts they typically take in enforcing their copyrights. It also gives defendants some comfort that old infringements that may be buried deep in their websites--which may or may not have ever been viewed by a user within the statutory period--will not give rise to a new violation and a fresh statute of limitations. However, these holdings are, at least for the moment, the opinion of one District Court, and conflicting opinions exist. Appellate courts will need to weigh in to bring us some clarity.