United States District Court, D. Arizona
Honorable G. Murray Snow, United States District Judge.
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.
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.
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.
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.
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
Kelly filed a complaint against Sheriff Arpaio and MCSO
alleging copyright infringement in December 2015. This motion
for summary judgment followed.
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)).
Alleged Infringement Prior to December 2012
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). 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 ...