McGlynn v. Sinovision Incorporated

Background

David McGlynn, a photographer, sued Sinovision Incorporated for allegedly displaying his photograph of the Hamilton Fish Park Pool on Sinovision’s website without permission. The complaint alleges that McGlynn took the photograph on July 12, 2015, registered it with the U.S. Copyright Office on March 7, 2017, and first observed a copy on Sinovision’s website on April 11, 2022. The photograph appeared in a news article dated July 13, 2017. McGlynn filed the lawsuit on June 8, 2023.

The opinion states that Sinovision is a Delaware corporation with its principal place of business in New York. It owns and operates a Chinese-language website that displays revenue-generating advertisements. McGlynn alleged that displaying the photograph increased traffic to the website and advertising revenue.

Motion and Legal Standard

Sinovision moved to dismiss the complaint as barred by the copyright statute of limitations. Under 17 U.S.C. § 507(b), a copyright action must be brought within three years after the claim accrues. In the Second Circuit, a claim accrues upon actual or constructive discovery of the infringement. Constructive discovery means that the copyright holder should have discovered the infringement through reasonable care. A defendant relying on this defense must show that the facts establishing it are apparent from the complaint itself.

The court treated the complaint’s factual allegations as true for purposes of deciding the motion. It explained that dismissal based on a statute-of-limitations defense is allowed at this stage only when the facts needed to establish the defense are evident on the face of the complaint.

Court’s Analysis

Sinovision argued that McGlynn should have discovered the alleged infringement earlier because he and his counsel had been involved in numerous copyright lawsuits. Sinovision suggested that McGlynn likely used reverse-image-search technology and therefore should have found the photograph’s use before April 2022.

The court found that Sinovision identified no specific fact, circumstance, or warning sign that would have prompted a reasonable copyright holder in McGlynn’s position to investigate before his alleged actual discovery. The court distinguished cases involving photography licensing agencies that alleged they used sophisticated technology to search for online infringement, and a case involving allegations that the plaintiff regularly sought out and discovered such infringements. The complaint here did not allege that McGlynn used similar technology.

The court also declined to conclude that McGlynn’s and his counsel’s history of copyright litigation, standing alone, established constructive discovery. It stated that a copyright plaintiff does not generally have a duty to police the internet for infringement. The court further noted that the complaint did not allege that McGlynn had previously sued over the same photograph.

Disposition

The court denied Sinovision’s motion to dismiss. It did not decide whether Sinovision infringed McGlynn’s copyright or whether McGlynn would ultimately prevail. The court stated that discovery about how McGlynn found the photograph, including any use and effectiveness of search technology, might support a later motion for summary judgment. The parties were ordered to meet and confer and file a joint status letter and proposed case-management plan by March 1, 2024.