Case 1:21-cv-09397-ER Document 61 Filed 03/27/24 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`AUGUST IMAGE, LLC,
`Plaintiff,
`
`– against –
`
`GIRARD ENTERTAINMENT &
`MEDIA LLC and KEITH GIRARD,
`Defendants.
`
`OPINION & ORDER
`21-cv-9397 (ER)
`
`RAMOS, D.J.:
`August Image, LLC (“August Image”) brought this copyright infringement action,
`alleging that Girard Entertainment & Media (“GEM”) and its owner Keith Girard
`(collectively, “Defendants”) unlawfully violated their ownership rights in certain original
`celebrity photographs (“the Photos”)1 of which August Image serves as the licensing
`agent. Before the Court is August Image’s motion for leave to file a third amended
`complaint pursuant to Fed. R. Civ. P. 15(a)(2). Doc. 52. For the reasons set forth below,
`the motion is granted.
`BACKGROUND
`I.
`August Image is a New York company that contracts with photographers to serve
`as the “sole and exclusive agent and representative for the licensing and use of” their
`works.2 Doc. 28 (Sec. Amend. Compl. (“SAC”)) ¶ 10. Gem and Girard own and operate
`the websites www.thenyindependent.com and www.celebrityhealthfitness.com and
`corresponding social media platforms. Id. ¶ 7. August Image alleges that, beginning in
`2020, it discovered for the first time that Defendants, without August Image’s consent,
`used the Photos on their websites in 2015. Id. ¶ 17. August Image therefore brought
`
`1 �e Photos consist of eight photographs of Jennifer Lopez taken by the photographer Joseph Pugliese.
`See Doc. 53-1.
`2 In the original complaint, August Image also noted that it is an agency representing “an elite group of
`portrait, lifestyle, beauty, and fashion photographers for editorial and commercial licensing.” Doc. 1 ¶ 2.
`�at language was omitted from the amended complaints.
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`Case 1:21-cv-09397-ER Document 61 Filed 03/27/24 Page 2 of 15
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`claims for copyright infringement against Defendants on November 13, 2021. Doc 1.
`Defendants answered March 7, 2022. Doc. 21. On March 28, 2022, August Image
`amended its complaint. Doc. 22.
`Two months later, on May 20, 2022, August Image amended the complaint again.
`Doc. 28. �e SAC added claims based on vicarious and/or contributory copyright
`infringement and violations of the Digital Millennium Copyright Act (17 U.S.C. § 1202).
`Id. It also removed any claims based on photographs by the photographer Warwick
`Saint. �e SAC also removed a reference to August Image being the “exclusive licensee”
`of the Photos. Compare Doc. 1 ¶ 15, with Doc. 28. Rather, August Image alleged:
`By virtue of contractual assignments with the respective photogra-
`phers, [August Image] is the sole and exclusive agent and repre-
`sentative for the licensing and use of [the Photos]. Pursuant to that
`assignment, [August Image] has full and complete authority to in-
`stitute suit for the unauthorized use of said images and is the owner
`of the exclusive distribution right in the photography. �us, [August
`Image] is the exclusive owner of a copyright right in the Subject
`Photography under 17 U.S.C. § 106 and the beneficial owner under
`17 U.S.C.§ 501(b) and has standing to bring this action.
`Doc. 28 ¶ 10.
`Defendants moved to dismiss the SAC on June 17, 2022. Doc. 32. �ey argued
`that August Image had no standing to assert the copyright claims; failed to plead facts
`supporting both its 17 U.S.C. § 1202 and contributory and vicarious liability claims; and
`only two of the allegedly infringed images were registered with the U.S. Copyright Office
`before the alleged infringement, meaning that all claims based on the non-registered
`images were facially barred by 17 U.S.C. § 412. Doc. 33. Despite the pending motion to
`dismiss, Defendants answered the SAC on February 21, 2023 and alleged that the answer
`was filed “without prejudice to its pending motion to dismiss.” Doc. 44 at 1. �e next
`day, August Image sought leave to amend its complaint again, alleging that several of the
`issues raised in the motion to dismiss would be mooted. Doc. 46. On March 2, 2023, the
`Court denied without prejudice the pending motion to dismiss the SAC as moot. Doc. 50.
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`It also granted August Image leave to file a motion to amend and permitted Defendants to
`make their arguments as to futility and standing in opposition. Mar. 2, 2023 Minute
`Entry.
`
`Plaintiff brought the instant motion for leave to file a third amended complaint on
`March 10, 2023. Doc. 52. �e proposed third amended complaint (“PTAC”) removes
`143 images that were not timely registered, leaving only eight photos as the subjects of
`alleged copyright infringement,3 and dismisses the secondary infringement and § 1202
`claims. Doc. 53-1. With respect to its standing to bring the infringement claim, in the
`PTAC, August Image repeats verbatim its allegations in the SAC that it is “the sole and
`exclusive agent and representative for the licensing and use of [the Photos]” and that “is
`the owner of the exclusive distribution right in the [Photos].” Id. ¶ 10.
`LEGAL STANDARD
`II.
`Rule 15(a)(2) allows a party to amend its complaint pursuant to the other party’s
`written consent or the court’s leave and provides that a “court should freely give leave [to
`amend] when justice so requires.” Motions to amend are ultimately within the discretion
`of the district court judge, Foman v. Davis, 371 U.S. 178, 182 (1962), who may deny
`leave to amend for “good reason, including futility, bad faith, undue delay, or undue
`prejudice to the opposing party.” Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009)
`(quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (internal
`quotation marks omitted)). �is is a permissive standard since the Federal Rules “accept
`the principle that the purpose of pleading is to facilitate a proper decision on the merits”
`of the case. Conley v. Gibson, 355 U.S. 41, 48 (1957).
`An amendment to a pleading is futile if the proposed claim would not withstand a
`motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Dougherty v. North Hempstead
`
`
`3 �ose eight images are the two timely registered images Defendants identified (Doc. 33) as well as six
`images for which registration information was listed correctly in the SAC, which August Image also seeks
`to correct in the PTAC (Doc. 53 at 3).
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`Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) (citing Ricciuti v. N.Y.C. Transit
`Auth., 941 F. 2d 119, 123 (2d Cir. 1991)). To withstand a motion to dismiss, the plaintiff
`must allege sufficient facts that, when accepted as true, state “a claim to relief that is
`plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In the
`context of a copyright infringement claim, to withstand a motion to dismiss, the
`complaint must allege: “(1) which original works are the subject of the copyright claim;
`(2) that the plaintiff owns the copyrights in those works; (3) that the copyrights have been
`registered in accordance with the statute; and (4) ‘by what acts during what time’ the
`defendant infringed the copyright.” Carell v. Shubert Org., Inc., 104 F. Supp. 2d 236, 250
`(S.D.N.Y. 2000) (quoting Kelly v. L.L. Cool J., 145 F.R.D. 32, 35 (S.D.N.Y. 1992)).
`Generally, courts will not deny leave to amend based on futility unless the
`proposed amendment is “clearly frivolous or legally insufficient.” See In re Ivan F.
`Boesky Sec. Litig., 882 F. Supp. 1371, 1379 (S.D.N.Y. 1995) (citation omitted). Beyond
`these considerations, the court does not need to consider the substantive merits of the
`plaintiff’s claim on a motion to amend. Id.
`�e party opposing the motion to amend bears the burden of proving the claim’s
`futility. See, e.g., Allison v. Clos-ette Too, L.L.C., 14-cv-1618 (LAK) (JCF), 2015 WL
`136102, at *2 (S.D.N.Y. Jan. 9, 2015).
`III. DISCUSSION
`In opposition to the instant motion, Defendants contend that amendment would be
`futile because August Image has “not even attempted to cure fatal defects in the [PTAC],
`which have existed since the inception of this case”—namely, that August Image lacks
`standing, has failed to plead a claim, and the claim is untimely. Doc. 57 at 9–10. For the
`reasons stated below, the Court rejects Defendants’ arguments and grants August Image
`leave to amend.
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`A. August Image has Standing as the Exclusive Licensee to Bring a
`Copyright Claim for the Photos
`Only owners of copyrights or those granted exclusive licenses by copyright
`owners may sue for copyright infringement. Urbont v. Sony Music Entm’t, 831 F.3d 80,
`88 n.6 (2d Cir. 2016) (citing 17 U.S.C. § 501(b)). Both the SAC and the PTAC state that
`August Image is the “sole and exclusive agent and representative for the licensing and
`use of” the Photos, and it “is the owner of the exclusive distribution right in” the Photos.
`Doc. 53-1 ¶ 10. �us, August Image does not argue that is the owner of the copyright,
`and the only question before the Court therefore is whether it sufficiently pled that it is
`the exclusive licensee of the Photos and whether it therefore has standing to bring an
`infringement claim.
`Exclusive licenses “grant to the licensee the exclusive right—superior even to
`copyright owners’ rights—to use the copyrighted material in a manner as specified by the
`license agreement.” Davis v. Blige, 505 F. 3d 90, 99 (2d Cir. 2007); see also Harris v.
`Simon & Schuster, Inc., 646 F. Supp. 2d 622, 632 (S.D.N.Y. 2009) (“Once the copyright
`owner grants an exclusive license of particular rights, only the exclusive licensee, and not
`his grantor, may sue for later occurring infringements of such rights.” (citation omitted)).
`A plaintiff has an exclusive license if it has one of the “exclusive rights” set forth in § 106
`of the Copyright Act, which include, as pertinent to the pending claim:
`the exclusive rights to do and to authorize any of the following:
`(1) to reproduce the copyrighted work in copies or phonorecords;
`(2) to prepare derivative works based upon the copyrighted work;
`(3) to distribute copies of phonorecords of the copyrighted work to
`the public by sale or other transfer of ownership, or by rental, lease,
`or lending . . . [and] (5) in the case of . . . pictorial . . . works . . . to
`display the copyrighted work publicly.
`17 U.S.C. § 106. A plaintiff need not have all the exclusive rights in § 106 to be an
`exclusive licensee for standing purposes, so long as its claims are based on infringement
`of the limited exclusive rights to which it does have a license. See Harris, 646 F. Supp.
`2d at 632; see also John Wiley & Sons, Inc. v. DRK Photo, 882 F.3d 394, 406–07 (2d Cir.
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`2018) (noting that the rights in § 106 are divisible and can therefore each be separately
`conferred to a different person).
` August Image Has Sufficiently Pled that it is the Exclusive Licensee of the
`Distribution Rights of the Photos
`Here, August Image represents that is “the sole and exclusive agent and
`representative for the licensing and use” of the Photos, and it “is the owner of the
`exclusive distribution right” in the Photos. Doc. 53-1 ¶ 10. It further states that it has
`been “the owner of the exclusive distribution right in the [Photos] during the relevant
`time period.” Id. ¶ 15.
`Defendants contend that August Image’s status as the agent to the licensing and
`use of the Photos is insufficient to confer standing upon it for purposes of bringing a
`copyright infringement claim. Doc. 57 at 10–14. �ey argue that as the copyright
`registration numbers of the Photos demonstrate that “the author and owner of all rights
`and permissions to the [Photos] is photographer Joseph Pugliese,” Pugliese is “the only
`individual” with standing. Id. at 11. �ey assert that the “bald allegation” in the SAC
`and PTAC that August Image is “the sole and exclusive agent and representative” for the
`use, distribution, and licensing of the Photos is not enough to substantiate that it is either
`the owner or exclusive licensee, as is necessary for standing. Id. Rather, Defendants
`argue that August Image’s “allegation is a semantic slight of hand designed to hide that it
`is a mere agent tasked with coordinating licensing deals on behalf of the copyright owner,
`[ ] Pugliese.” Id. at 15. Defendants also assert that it is fatal to August Image’s claim that
`it failed to provide language from the relevant contracts, let alone the contracts
`themselves, to demonstrate any rights it has thereunder to sue. Id. at 14. Finally,
`Defendants argue that the alleged infringing uses occurred in November 2015, and the
`relevant copyright registrations, which show Pugliese as the author and copyright owner,
`were submitted in August 2014 and June 2015, so August Image did not own any
`copyright rights to the Photos during the alleged infringing use. Id. at 16.
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`August Image responds that copyright claims are subject to dismissal at the
`pleading stage only if the plaintiff fails to allege that it either owns or is an exclusive
`licensee of the copyrighted work. Doc. 60 at 3. It is therefore enough for the plaintiff to
`plead that it owns registered copyrights, as anything more would subject copyright
`plaintiffs to a heightened pleading standard that is inapplicable to such claims. Id.
`(citations omitted). And August Image pled that it is “the sole owner of the right to
`license and distribute the [Photos].” Id. at 4. Moreover, August Image contends that
`Defendants err in arguing that it must produce or quote from the exclusive syndication
`agreement, as failure to produce copyright registration and other documents at the
`pleading stage cannot be a basis for dismissal. Id.
`Defendants misstate the relevant law in asserting that only Pugliese, as the owner
`of the copyright, has standing to sue for infringement. As distribution of a copyrighted
`work is one of the enumerated “exclusive rights” in § 106, if sufficiently pled, August
`Image’s status as exclusive licensee of the distribution right would confer standing for it
`to sue for infringement of that distribution right.4 See John Wiley & Sons, 882 F.3d at
`406–07. For similar reasons, Defendants’ arguments that August Image lacks standing
`because it did not own the copyright rights at the time of the infringement also fail.
`August Image need not have owned the copyright to sue, so long as it had exclusive
`distribution rights at the time, as it has alleged (see Doc. 53-1 ¶ 15).
`
`
`4 �e parties also dispute whether August Image has standing on the basis of its status as “the sole and
`exclusive agent and representative for the licensing and use” of the Photos. See Doc. 57 at 13–15; Doc. 60
`at 5–7. Neither the Supreme Court nor the Second Circuit have decided whether a plaintiff’s status as an
`exclusive agent is sufficient for standing, and courts outside the Circuit are split on the question. Compare
`Ctr. City Music v. Kisner, No. 93-cv-1959, 1994 WL 159769, at *4 (4th Cir. 1994) (no standing); Bourne
`Co. v. Hunter Country Club, Inc., 990 F.2d 934, 937 (7th Cir. 1993) (same); Creative Photographers, Inc. v.
`Julie Torres Art, LLC, No. 1:22-cv-00655 (JPB), 2023 WL 2482962, at *6–8 (N.D. Ga. Mar. 13, 2023)
`(same), with Minden Pictures, Inc. v. John Wiley & Sons, Inc., 795 F.3d 997, 1004-06 (9th Cir. 2015)
`(standing).
`Because August Image’s status as an exclusive licensee would grant it standing (which Defendants do not
`appear to dispute), the Court need not pass here as to whether August Image also has standing as an
`exclusive agent to bring suit for copyright infringement.
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`�e key issue, therefore, is whether August Image’s assertion that it is an
`exclusive licensee of the distribution rights suffices without production of the underlying
`contracts with Pugliese. Courts generally do not require plaintiffs to attach proof of
`standing at the pleading stage, so long as it specifically alleges facts sufficient to confer
`standing. See, e.g., Warren v. John Wiley & Sons, Inc., 952 F. Supp. 2d 610, 617
`(S.D.N.Y. 2013); U2 Home Entertainment, Inc. v. Kylin TV, Inc., No. 06-cv-02770 (DLI),
`2007 WL 2028108, at *6–7 (E.D.N.Y. July 11, 2007). “To require a plaintiff to do more,
`at the motion to dismiss stage, would be to subject copyright plaintiffs to a heightened
`level of pleading, something this Court has been strictly proscribed from doing.” Warren,
`952 F. Supp. 2d at 617. Certainly, “[a]t a later stage in [ ] litigation, [August Image] will
`bear the burden of proving . . . that it is an exclusive licensee of all the statutory rights
`granted in a copyright owner for each work at issue herein . . . [but] at this stage of the
`litigation . . . such particularity in pleadings is not required.” U2 Home Entertainment,
`Inc., 2007 WL 2028108, at *7. Accordingly, for purposes of the instant motion, the Court
`must take as true August Image’s assertion that it is the exclusive licensee of the
`distribution rights of the Photos and not merely Pugliese’s agent. See Ashcroft v. Iqbal,
`556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
` August Image Has Sufficiently Pled that Defendants Infringed on its
`Distribution Rights
`As noted above, an exclusive licensee with some, but not all § 106 exclusive
`rights, may bring claims only for infringement of those exclusive rights to which it does
`have a license. See Harris, 646 F. Supp. 2d at, 632. August Image alleges that the
`infringing conduct here was that Defendants “copied, reproduced, displayed, and
`distributed” the Photos. Doc. 53-1 ¶ 19. Defendants contend that an exclusive license of
`distribution rights does not give August Image exclusive rights to the reproduction or
`display of the Photos. Doc. 57 at 15. But August Image also explicitly pleaded that
`Defendants infringed on August Image’s license through unauthorized distribution. Doc.
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`53-1 ¶ 19. �at is sufficient to satisfy the standing requirement that a defendant has
`violated at least one of the § 106 exclusive rights. See Nicklen v. Sinclair Broadcast
`Group, Inc., 551 F. Supp. 3d 188, 193 (S.D.N.Y. 2021) (“To state a claim for copyright
`infringement, a plaintiff must plead ownership of a valid copyright that the defendant has
`violated at least one of the owner’s exclusive rights under 17 U.S.C. § 106: reproduction,
`public performance, public display, creation of derivative works, and distribution.”).
`August Image therefore has standing to pursue the instant copyright infringement claim,
`and its amendment would not be futile.
`B. August Image has Pled the Alleged Infringing Acts with Sufficient
`Specificity
`Defendants additionally argue that August Image has not pled the acts alleged to
`constitute copyright infringement with sufficient specificity. Doc. 57 at 17. Defendants
`contend that Federal Rule of Civil Procedure 8(a) requires that a plaintiff alleging
`copyright infringement specify which acts of infringement were committed by which
`defendant and when. Id. But August Image makes only “boilerplate allegations [that]
`make no distinction between the [d]efendants, and do not allege with any specificity
`which defendant . . . committed which acts of infringement , as to which [Photos], or at
`what times.” Id. August Image responds that it “provide[d] the URLs at which the
`alleged infringement occurred, copyright registrations for the images at issue, and screen
`captures of Defendants’ infringement.” Doc. 60 at 7 (citing Doc. 53-1 ¶ 12, Doc. 53-1 at
`8–15 (Exs. 1, 2 to PTAC)).
`“Complaints [for copyright infringement] simply alleging present ownership by
`plaintiff, registration in compliance with the applicable statute, and infringement by
`defendant, have been held to be sufficient under the rules.” U2 Home Entertainment,
`Inc., 2007 WL 2028108, at *7 (citation omitted). �us, “[a]t this stage of the litigation,
`[a] plaintiff is not required to specify exactly what acts each individual defendant
`performed in order to put defendants on fair notice of the claims against them.” Id. at *6
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`(collecting cases); see also Elektra Entertainment Group, Inc. v. Barker, 551 F. Supp. 2d
`234, 239 (S.D.N.Y. 2008) (“An allegation of past and continuing infringement
`‘sufficiently puts defendant on notice as to which acts . . . form the basis of the
`[p]laintiff’s claim.’” (citation omitted)). “Moreover, Rule 8 does not prohibit plaintiff
`from choosing to make allegations against defendants collectively.” U2 Home Ent., Inc.,
`2007 WL 2028108, at *6.
`In other words, even had August Image not attached exhibits with URLs and
`screen captures, its factual allegations in the PTAC likely would have sufficed. Id. at *6–
`7. Moreover, Defendants’ arguments to the contrary ignore the exhibits altogether.
`Accordingly, August Image has pled the allegedly infringing rights with sufficient
`specificity, and amendment would not be futile on that basis.
`C. August Image’s Claims are Timely
`Defendants also argue that August Image’s claims are untimely because the
`alleged infringement occurred in November 2015, but August Image did not bring suit
`until November 2021. Doc. 57 at 18–19. �ey argue that “serial litigants like [August
`Image], accustomed to finding and prosecuting alleged infringement across the internet,
`are expected to bring suit within the three-year limitations period starting when the
`alleged infringement occurs.” Id. at 18. Accordingly, August Image “should have known
`about the alleged infringement in 2015, or at least well within the limitation period,” but
`it instead “waited twice the limitation period, knowing that, over time, emails granting
`permission to publish such images would be lost to email culling and deletion protocols.”
`Id. at 19.
`August Image responds that, pursuant to the Second Circuit’s “discovery rule,” an
`infringement claim does not accrue until the copyright holder discovers, or with due
`diligence should have discovered, the infringement. Doc. 60 at 8. And it pled in the
`PTAC that it did not discover the infringement until 2020 and could not have discovered
`it earlier with due diligence because neither it nor its clients use Defendants’ websites,
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`and Defendants’ websites “have little to no cultural impact.” Id. It further argues that
`Defendants’ arguments that it should have discovered the infringement earlier because it
`is serial litigant is contrary to the general rule that copyright owners do not have a general
`duty to police the internet for infringement of their copyrights. Id. at 9.
`Defendants bear the burden of proof when raising a statute of limitations
`affirmative defense. Parisienne v. Scripps Media, Inc., No. 19-cv-8612 (ER), 2021 WL
`3668084, at *2 (S.D.N.Y. Aug. 17, 2021). Dismissal is warranted at the pleadings stage
`only where “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.” See Sewell v.
`Bernardin, 795 F.3d 337, 339 (2d Cir. 2015). But if there is even “some doubt” as to
`whether dismissal is warranted, a court should not dismiss the claim. See Ortiz v.
`Cornetta, 867 F.2d 146, 149 (2d Cir. 1989).
`Civil actions under the Copyright Act must be brought “within three years after
`the claim accrued.” 17 U.S.C § 507(b); accord, e.g., Petrella v. Metro–Goldwyn–Mayer,
`Inc., 572 U.S. 663, 670 (2014); Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 124
`(2d Cir. 2014). But, the Second Circuit, “like ‘every Circuit to have considered the issue
`of claim accrual in the context of infringement claims,’ follows the ‘discovery rule,’”
`under which a copyright infringement claim will not accrue until a plaintiff discovers, or
`with due diligence should have discovered, the infringement. Wu v. John Wiley & Sons,
`Inc., No. 14-cv-6746 (AKH) (AJP), 2015 WL 5254885, at *4 (S.D.N.Y. Sept. 10, 2015)
`(quoting Psihoyos, 748 F.3d at 124–25 & n.3 (collecting cases)); accord PK Music
`Performance, Inc. v. Timberlake, No. 16-cv-1215 (VSB), 2018 WL 4759737, at *7
`(S.D.N.Y. Sept. 30, 2018).
`Only then does the limitations period begin to run, “irrespective of whether the
`actual plaintiff undertook a reasonably diligent investigation.” Merck & Co. v. Reynolds,
`559 U.S. 633, 653 (2010). Courts use an objective standard to determine when a
`reasonably diligent plaintiff should have discovered the infringement. Masi v. Moguldom
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`Media Grp. LLC, No. 18-cv-2402 (PAC), 2019 WL 3287819, at *5 (S.D.N.Y. July 22,
`2019). To dispute the date on which the claims accrued in copyright cases, a defendant
`must produce evidence “that would have been sufficient to awaken inquiry.” Michael
`Grecco Prods., Inc. v. Valuewalk, LLC, 345 F. Supp. 3d 482, 512 (S.D.N.Y. 2018)
`(finding that evidence in the record was insufficient to determine when the statute of
`limitations began to run).
`A copyright holder does not have a general duty to “police the internet to discover
`[a defendant’s] use of his [p]hotograph[s].” Hirsch v. Rehs Galleries, Inc., No. 18-cv-
`11864 (VSB), 2020 WL 917213, at *5 (S.D.N.Y. Feb. 26, 2020). But courts have
`considered the “relative sophistication of parties in a copyright suit.” Parisienne, 2021
`WL 3668084, at *4 (collecting cases). For instance, where a copyright holder filed 36
`infringement lawsuits, beginning in July 2010, and the alleged infringement occurred in
`2011, the court held the plaintiff should have discovered with the exercise of due
`diligence that its copyright was being infringed within the limitations period, meaning its
`discovery in 2017 was unreasonable and untimely. Minden Pictures, Inc. v. Buzzfeed,
`Inc., 390 F. Supp. 3d 461, 467 (S.D.N.Y. 2019). In comparison, a copyright holder with
`“sophistication as an individual litigant” and counsel with “sophistication and experience
`with copyright infringement cases” would not be put on inquiry notices for purposes of
`the discovery rule merely because the infringing website gave the plaintiff photographer
`public, available, and searchable attribution credit. Parisienne, 2021 WL 3668084, at *4.
`Indeed, in PK Music Performance, Inc., even where defendants contended that the
`“popularity and success” of the infringing work—which was the subject of a Justin
`Timberlake album, DVD, tour, and HBO special—signified that the plaintiff should have
`known about the infringement sooner, the court held that defendants’ argument “misse[d]
`the mark.” 2018 WL 4759737, at *7.
`Here, August Image pled that it discovered the infringement in 2020, and it
`brought the instant action one year later. PTAC ¶ 16. �at is within the limitation period.
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`PK Music Performance, Inc., 2018 WL 4759737, at *7. And Defendants have submitted
`no evidence “that would have been sufficient to awaken inquiry” earlier than 2020
`beyond a barebones allegation that August Image is a serial litigant. Michael Grecco
`Prods., Inc., 345 F. Supp. 3d at 512. �us, not only have Defendants failed to
`substantiate that allegation in any way (such as by stating the number of infringement
`suits brought in a given time period, as in Minden, 390 F. Supp. 3d at 467); but, even if
`August Image is a serial litigant, that alone is still not enough to put it on notice for
`purposes of the discovery rule. See Parisienne, 2021 WL 3668084, at *4; PK Music
`Performance, Inc., 2018 WL 4759737, at *7. Accordingly, it is not “clear from the face
`of the complaint . . . that [August Image’s] claims are barred as a matter of law,” and
`there is “some doubt as to whether the dismissal is warranted,” especially considering
`that Defendants bear the burden of proof when raising the statute of limitations as an
`affirmative defense. See PK Music Performance, Inc., 2018 WL 4759737, at *7 (internal
`quotation marks and citations omitted). Defendants have therefore failed to demonstrate
`that August Image’s amendment would be futile because of untimeliness.
`D. Defendants Have Not Shown that Amendment Would be Unduly
`Prejudicial
`Finally, Defendants argue that even if August Image’s claims were timely, its
`delay in bringing suit prejudiced Defendants because licenses are generally granted to
`websites by email, but email records are subject to deletion protocols in the normal
`course of business. Doc. 57 at 19. Defendants allege that August Image seeks to exploit
`this loss of evidence in bad faith since a license is an affirmative defense. Id. Defendants
`cite no law in support of their argument that such delay is enough alone to constitute bad
`faith or undue prejudice. August Image denies any bad faith and argues that Defendants’
`only basis for alleging prejudice or bad faith rests on their “illogical argument that
`[August Image] bringing this suit in 2020—when the infringement was discovered, rather
`than at the time of infringement—somehow makes [August Image] responsible for
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`Case 1:21-cv-09397-ER Document 61 Filed 03/27/24 Page 14 of 15
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`Defendants’ purported inability to produce any evidence of alleged licenses.” Doc. 60 at
`10.
`
`As the non-movants, Defendants “bear[] the burden ‘of demonstrating that
`substantial prejudice would result were the proposed amendment to be granted.’” Syntel
`Sterling Best Shores Mauritius Ltd. v. Trizetto Grp., Inc., No. 15-cv-211 (LGS) (RLE),
`2016 U.S. Dist. LEXIS 130918, at *13 (S.D.N.Y. Sep. 23, 2016) (citation omitted).
`Conclusory allegations are generally insufficient. See, e.g., Cat3, LLC v. Black Lineage,
`Inc., No. 14-cv-5511 (AT) (JCF), 2015 WL 5559569, at *5 (S.D.N.Y. Sept. 21, 2015)
`(holding that defendants made no showing that plaintiffs acted in bad faith in bringing a
`motion to amend where, “[i]n conclusory fashion, the defendants assert that the plaintiffs
`‘desire to keep [d]efendants tied up in [ ] costly litigation as long as possible’ and
`describe the plaintiffs’ actions as ‘the very definition of bad faith’”). Moreover, the
`relevant inquiry is whether delay in amending caused prejudice or was done in bad faith,
`not whether any delay in bringing suit caused prejudice or was done in bad faith. See id.
`Here, Defendants have done no more than make conclusory allegations of
`prejudice and bad faith, and their arguments turn on August Image’s delay in suing, not in
`seeking to amend. See Doc. 57 at 19. �at is both not enough as to the former and beside
`the point as to the latter. Accordingly, the Court does not find that Defendants would be
`unduly prejudiced, nor that August Image seeks to amend in bad faith.
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`Case 1:21-cv-09397-ER Document 61 Filed 03/27/24 Page 15 of 15
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`IV. CONCLUSION
`For the foregoing reasons, August Image’s motion for leave to file a third
`amended complaint is GRANTED. �e third amended complaint shall be filed by April 5,
`2024. �e Clerk of Court is respectfully directed to terminate the motion (Doc. 52).
`
`It is SO ORDERED.
`
`Dated: March 27, 2024
`New York, New York
`
`EDGARDO RAMOS, U.S.D.J.
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