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Kelly v. Maricopa County Sheriff's Office

United States District Court, D. Arizona

December 7, 2017

David E Kelly, Plaintiff,
Maricopa County Sheriff's Office, et al., Defendants.


          Honorable G. Murray Snow, United States District Judge.

         Pending before the Court is Defendant Maricopa County Sheriff Office's (“MCSO”) Motion for Summary Judgment. (Doc. 71). For the reasons stated below, the Court grants the motion.


         David Kelly took a photo at the 2001 World Series in Phoenix, Arizona and copyrighted the image. Mr. Kelly agreed with Raymond Young to distribute the photograph, but Mr. Young violated the terms of the contract. In 2006, Mr. Kelly sued Mr. Young for breach of contract and won a default judgment in state court for $1.125 million.

         Around December 2003, Mr. Young saw Maricopa County Sheriff Joseph Arpaio at a community event in Anthem, Arizona. Mr. Young posed for a picture with Sheriff Arpaio where both men held a poster of the World Series photo. Mr. Young posted this picture with Sheriff Arpaio on Facebook and included a caption that Mr. Young donated 3, 000 copies of the poster to the MCSO. Mr. Kelly's private investigator found this Facebook post in 2011 and shared it with Mr. Kelly.

         At his deposition, Mr. Kelly testified that he encountered Sheriff Arpaio in spring 2012 and January 2013. Mr. Kelly now claims that he did not confront the Sheriff about selling the photo or gain an admission from him until the January 2013 encounter, but he does acknowledged that after his March encounter he sent Sheriff Arpaio a letter in April in which he makes the assumption that the MCSO is selling the copyrighted posters in violation of his copyright.

         Mr. Kelly also testified in his deposition that he met a plainclothes MCSO Deputy named Rod at a bar in November 2014. At this encounter, Mr. Kelly testified that Rod confirmed that MCSO sold the copyrighted photos. Mr. Kelly additionally claimed that Rod gave him the impression that these sales were recent.

         Mr. Kelly filed a complaint against Sheriff Arpaio and MCSO alleging copyright infringement in December 2015. This motion for summary judgment followed.


         I. Legal Standard

         The Court grants summary judgment when the movant “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In making this determination, the Court views the evidence “in a light most favorable to the non-moving party.” Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party opposing summary judgment “may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). Substantive law determines which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A fact issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). The Ninth Circuit “has refused to find a ‘genuine issue' where the only evidence presented is ‘uncorroborated and self-serving' testimony. Villiarimo, 281 F.3d at 1061 (quoting Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)).

         II. Analysis

         A. Alleged Infringement Prior to December 2012

         A plaintiff must bring a civil suit for copyright infringement within three years after the claim accrues. 17 U.S.C. § 507(b). This statute “is primarily intended to promote the timely prosecution of grievances and discourage needless delay.” Polar Bear Productions, Inc. v. Timex Corp., 384 F.3d 700, 706 (9th Cir. 2004). The statute of limitations runs separately for each copyright violation, Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S.Ct. 1962 (2014), and under the Ninth Circuit's discovery rule, each cause of action for copyright infringement accrues when the plaintiff knows or should know about the infringement. Roley v. New World Picture, Ltd., 19 F.3d 479, 481 (9th Cir. 1994).[1] For cases of continuing copyright infringement, the plaintiff may bring an action for all acts that accrued within the three years preceding the filing of the suit, but not for any previous infringements. Id. That is, the copyright plaintiff cannot “reach back beyond the three-year limit and sue for damages or other relief for ...

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