2:19-cv-03590-BHH Date Filed 11/16/20 Entry Number 19 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`DISTRICT OF SOUTH CAROLINA
`CHARLESTON DIVISION
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`Civil Action No. 2:19-cv-3590-BHH
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`Opinion and Order
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`This matter is before the Court on Defendants Michael C. Scarafile, Patricia R.
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`Scarafile, Sheila Glover Romanosky, and O’Shaughnessy Real Estate, Inc. doing
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`business as Carolina One Real Estate’s motion to dismiss Plaintiff David Oppenheimer’s
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`complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim
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`upon which relief can be granted. (ECF No. 13.) For the reasons set forth in this Order,
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`the motion to dismiss is denied.
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`BACKGROUND
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`Plaintiff David Oppenheimer, who is a professional photographer, brought this
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`copyright infringement action against Defendants Michael and Patricia Scarafile, Sheila
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`Romanosky, and O’Shaughnessy Real Estate, Inc. doing business as Carolina One Real
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`Estate.1 Oppenheimer alleges that he is the author and sole owner of the original
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`1 Hereinafter, Michael Scarafile and Patricia Scarafile are referred to collectively as “the Scarafiles.” Sheila
`Romanosky is referred to as “Romanosky.” The Scarafiles and Romanosky are referred to collectively as
`“the Individual Defendants.” O’Shaughnessy Real Estate, Inc. doing business as Carolina One Real Estate
`is referred to as “Carolina One.” The Individual Defendants and Carolina One are referred to collectively as
`“Defendants.” David Oppenheimer is referred to as “Plaintiff” or “Oppenheimer.”
`1
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`David Oppenheimer,
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`v.
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`Plaintiff,
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`Michael C. Scarafile, Patricia R.
`Scarafile, Sheila Glover Romanosky,
`O’Shaughnessy Real Estate, Inc. d/b/a
`Carolina One Real Estate,
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`
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`Defendants.
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`2:19-cv-03590-BHH Date Filed 11/16/20 Entry Number 19 Page 2 of 14
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`photographs at issue in this case (the “Copyrighted Works”). The two original photographs
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`at issue are registered under the title “Travel, Festival, and Concert Photography by David
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`Oppenheimer 2013,” bearing certificate number VAu 1-142-190, with an effective
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`registration date of August 31, 2013. (ECF No. 1-2.) The first Work is an aerial southern-
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`facing photograph that frames the Toler’s Cove Marina in Mount Pleasant, South
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`Carolina. (ECF No. 1-1 at 2.) The second Work is a wider aerial, southern-facing
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`photograph that depicts Toler’s Cove Marina, the Sullivan’s Island Narrows, part of
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`Sullivan’s Island, and the coast of the Atlantic Ocean. (Id. at 3.)
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`Oppenheimer alleges that fewer than three years before filing the instant action,
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`he discovered that one or more of the Defendants, or someone at their direction, infringed
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`his copyrights by copying and distributing (or directing others to do so) the Copyrighted
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`Works without license or authorization on more than 100 different websites—of at least
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`34 different realtors, agents, brokers, and/or other real estate sales entities—for the
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`purpose of advertising and marketing a boat slip located at 0 Toler’s Cove Marina 5G, in
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`Mount Pleasant, South Carolina (the “Boat Slip”). (See Compl. ¶¶ 13–15, 21, 26, 48, ECF
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`No. 1; ECF Nos. 1-3 & 1-4 (depicting allegedly infringing real estate listings and URLs).)
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`Oppenheimer further alleges that at the time Carolina One performed the infringing acts,
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`the Scarafiles were managing principals of Carolina One—controlling nearly all decisions
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`of the company, Romanosky was the listing broker, and all of the Individual Defendants
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`had a direct financial interest in the infringing activities. (See Compl. ¶¶ 29–30.)
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`On June 24, 2019, Oppenheimer’s attorney sent a formal letter to Defendants
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`identifying all of the known infringing URLs, demanding Defendants cease and desist from
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`their ongoing infringements, and seeking information about the uses to which the
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`2
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`2:19-cv-03590-BHH Date Filed 11/16/20 Entry Number 19 Page 3 of 14
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`Copyrighted Works had been put and any profits resulting therefrom. (See ECF No. 1-5.)
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`The complaint alleges that in October 2019, after acknowledging receipt of the cease and
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`desist letter, while some of the infringing uses were removed, Defendants failed and/or
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`refused to remove all instances of infringement displayed on several of the URLs. (See
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`Compl. ¶ 16.) Oppenheimer further claims that in October 2019 his attorney notified
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`Defendants that infringing uses of the Copyrighted Works were still being published on
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`the URLs and requested that Defendants immediately remove all such instances
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`infringement, but Defendants did not fully comply with the demand and ongoing instances
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`of infringement continued. (See Compl. ¶¶ 17–18.)
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`Defendants filed the instant motion to dismiss on February 28, 2020. (ECF No. 13.)
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`Plaintiff responded on November 13, 2019. (ECF No. 6.) Plaintiff filed a response on
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`March 5, 2020. (ECF No. 18.) The matter is ripe for consideration and the Court now
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`issues the following ruling.
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`STANDARD OF REVIEW
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`A motion to dismiss for failure to state a claim upon which relief can be granted
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`pursuant to Federal Rule of Civil Procedure 12(b)(6) “challenges the legal sufficiency of
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`a complaint, considered with the assumption that the facts alleged are true.” Francis v.
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`Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (internal citations omitted). “To survive a
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`motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
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`‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
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`(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
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`plausibility when the plaintiff pleads factual content that allows the court to draw the
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`reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting
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`3
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`2:19-cv-03590-BHH Date Filed 11/16/20 Entry Number 19 Page 4 of 14
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`Twombly, 550 U.S. at 556)). Although the allegations in a complaint generally must be
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`accepted as true, that principle “is inapplicable to legal conclusions,” and the Court is “not
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`bound to accept as true a legal conclusion couched as a factual allegation.” Id. (citations
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`and quotation marks omitted). “The plausibility standard is not akin to a ‘probability
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`requirement,’ but it asks for more than a sheer possibility that a defendant has acted
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`unlawfully. Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s
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`liability, it ‘stops short of the line between possibility and plausibility of entitlement to
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`relief.’” Id. at 678 (quoting Twombly, 550 U.S. at 557). Stated differently, “where the well-
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`pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
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`the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’”
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`Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Still, Rule 12(b)(6) “does not countenance . . .
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`dismissals based on a judge’s disbelief of a complaint’s factual allegations.” Colon Health
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`Centers of Am., LLC v. Hazel, 733 F.3d 535, 545 (4th Cir. 2013) (quoting Neitzke v.
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`Williams, 490 U.S. 319, 327 (1989)). “A plausible but inconclusive inference from pleaded
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`facts will survive a motion to dismiss . . . .” Sepulveda-Villarini v. Dep’t of Educ. of Puerto
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`Rico, 628 F.3d 25, 30 (1st Cir. 2010).
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`DISCUSSION
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`“To establish infringement, two elements must be proven: (1) ownership of a valid
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`copyright, and (2) copying of constituent elements of the work that are original.” Feist
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`Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (citation omitted). In
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`their motion to dismiss, Defendants do not dispute that Oppenheimer owns a valid
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`copyright for the Copyrighted Works or that copies of the Works were published in real
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`estate listings for the purpose of marketing the Boat Slip. Defendants state:
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`4
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`2:19-cv-03590-BHH Date Filed 11/16/20 Entry Number 19 Page 5 of 14
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`In November 2016, Ms. Romanosky listed a boat slip for sale on Charleston
`Trident Association of Realtors’ Multiple Listing Service for her seller client.
`The boat slip was located at 0 Tolers Cove, 5G in Mount Pleasant, South
`Carolina 29464, using two photographs of an aerial view of the Marina
`where the boat slip is locate [sic]. Shortly thereafter, the boat slip sold for
`Eighty-Five Thousand and no/100 Dollars ($85,000.00) on June 13, 2017.
`Ms. Romanosky and Carolina One received a combined commission of Two
`Thousand Five Hundred Fifty and no/100 Dollars ($2,550.00) on the
`transaction.
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`(ECF No. 13 at 1–2.) Oppenheimer’s complaint raises five causes of action: (1) Non-
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`Willful Copyright Infringement by all Defendants (Compl. ¶¶ 19–21); (2) Reckless/Willful
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`Copyright Infringement by all Defendants (id. ¶¶ 22–27); (3) Vicarious Copyright
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`Infringement by the Individual Defendants (id. ¶¶ 28–30); (4) Contributory Copyright
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`Infringement by the Individual Defendants (id. ¶¶ 31–34); and (5) Violations of the Digital
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`Millennium Copyright Act by all Defendants (id. ¶¶ 35–41). The Court will examine the
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`legal sufficiency of the allegations supporting each cause of action in turn.
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`A. Non-Willful Copyright Infringement
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`Defendants argue that the complaint fails to show that the Scarafiles or Carolina
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`One are liable for non-willful copyright infringement because it does not include “plausible
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`allegations that any of these Defendants reproduced the work, prepared derivative works,
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`distributed copies of the work to the public, performed the work publicly, or displayed the
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`works publicly.” (ECF No. 13 at 4.) Defendants further argue that Plaintiff fails to show
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`that Romanosky is liable for non-willful copyright infringement because Plaintiff failed to
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`provide “plausible allegations that Ms. Romanosky copied the works in question.” (Id. at
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`5.) The Court disagrees and finds that Plaintiff’s allegations meet the pleading standards
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`necessary to survive a challenge under Rule 12(b)(6).
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`Plaintiff alleges that he discovered the Copyrighted Works were being publicly
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`5
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`2:19-cv-03590-BHH Date Filed 11/16/20 Entry Number 19 Page 6 of 14
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`displayed online, without license or authorization, in advertisements for the sale of the
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`Boat Slip. He further alleges that Carolina One (listing broker for the property), one or
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`more of the Individual Defendants, or someone acting at their direction copied and
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`distributed the Copyrighted Works to at least 34 different realtors, agents, brokers, and/or
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`other entities, and that the Works were subsequently published on over 100 separate
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`website URLs to advertise the property for sale. Plaintiff supports these allegations with
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`“screen captures” of allegedly infringing real estate listings (ECF No. 1-3) and specific
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`identification of the URLs displaying the Works without license (ECF No. 1-4). Plaintiff
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`contends that after his attorney notified Defendants of their infringing acts, one or more
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`of the Defendants removed some, but not all, of the allegedly infringing images from the
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`accused websites, leading to the inference that Defendants exercised control over at least
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`some of the infringements. Oppenheimer does not appear to have knowledge as to each
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`of the named Defendants’ precise role in the allegedly infringing activities, but such
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`precise pleading is not required to state a claim that will survive a motion to dismiss. The
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`allegations in the complaint, taken together with the supporting exhibits, provide sufficient
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`factual content for the Court to “draw the reasonable inference that [Defendants] are liable
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`for the misconduct alleged.” Iqbal, 556 U.S. at 678. Accordingly, Plaintiff has stated a
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`facially plausible claim for non-willful copyright infringement and the motion to dismiss this
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`cause of action is denied.
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`B. Reckless/Willful Copyright Infringement
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`Defendants next argue that Oppenheimer has failed to plausibly allege that any of
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`the Defendants had knowledge of any infringement, or a reckless disregard and willful
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`blindness for a copyright holder’s rights. (ECF No. 13 at 5–7 (citing Unicolors, Inc. v.
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`6
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`2:19-cv-03590-BHH Date Filed 11/16/20 Entry Number 19 Page 7 of 14
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`Urban Outfitters, Inc., 853 F.3d 980, 991 (9th Cir. 2017) (“To prove willfulness under the
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`Copyright Act, the plaintiff must show (1) that the defendant was actually aware of the
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`infringing activity, or (2) that the defendant’s actions were the result of reckless disregard
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`for, or willful blindness to, the copyright holder’s rights.” (internal modification, quotation
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`marks, and citation omitted))).) However, the Court finds that Plaintiff’s second cause of
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`action states a claim upon which relief can be granted.
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`Plaintiff’s reckless/willful infringement claim is pled in the alternative to his non-
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`willful infringement claim. (See Compl. ¶ 23.) In addition to the infringing actions alleged
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`in his first cause of action, Plaintiff avers that one or more of the Defendants—or a third
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`party acting on their behalf—saw Oppenheimer’s copyright notice on the face of the
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`images prior to downloading them for their own purposes, thus giving them “knowledge”
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`that their acts were infringing.2 (Compl. ¶¶ 24–26.) Plaintiff further alleges that after
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`acknowledging the claims he made in the cease and desist letter, Defendants “falsely
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`informed Oppenheimer that they had removed all instances of infringement from the
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`Web,” even as they continued to display the Copyrighted Works on a specific URL. (See
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`Compl. ¶ 44.) The analysis need go no further. Accepting Plaintiff’s allegations as true,
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`Defendants were given formal notice that Oppenheimer was the sole author and owner
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`of the Copyrighted Works, yet still used the Works without license or authorization.
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`Plaintiff’s second cause of action sufficiently alleges a plausible claim, in the alternative,
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`for reckless/willful copyright infringement and the motion to dismiss this claim is denied.
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`2 Oppenheimer states in the complaint that for many years it has been his custom and business practice to
`display his copyright management information (“CMI”) on his copyrighted photographs when they are first
`published by him, and thereafter. (Compl. ¶ 12.) The CMI includes a facial watermark and embedded
`metadata. (Id.) The Copyrighted Works reflect the watermark, which includes a © notice of copyright and
`the designation “2013 David Oppenheimer Performance Impressions.” (ECF No. 1-1 at 2–3.)
`7
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`2:19-cv-03590-BHH Date Filed 11/16/20 Entry Number 19 Page 8 of 14
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`C. Vicarious Copyright Infringement
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`“Vicarious copyright liability is an ‘outgrowth’ of respondeat superior.” A&M
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`Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1022 (9th Cir. 2001) (citation omitted).
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`However, “In the context of copyright law, vicarious liability extends beyond an
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`employer/employee relationship to cases in which a defendant has the right and ability to
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`supervise the infringing activity and also has a direct financial interest in such activities.”
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`Id. (quotation marks and citations omitted). “In order to establish vicarious liability, a
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`copyright owner must demonstrate that the entity to be held so liable: (1) possessed the
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`right and ability to supervise the infringing activity; and (2) possessed an obvious and
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`direct financial interest in the exploited copyrighted materials.” Nelson-Salabes, Inc. v.
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`Morningside Dev., LLC, 284 F.3d 505, 513 (4th Cir. 2002).
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`The Court finds that the complaint adequately pleads a claim for vicarious
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`copyright infringement by the Individual Defendants. Plaintiff alleges that during the time
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`period relevant to his infringement claims: (1) Michael Scarafile was the president,
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`director, manager, and/or other genre of principal of Carolina One; (2) Patricia Scarafile
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`was the chief executive officer, registered agent, director, manager, and/or other genre
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`of principal of Carolina One; and (3) Romanosky was the licensed broker for the property
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`in question. (Compl. ¶ 29.) He further alleges that the Scarafiles “controlled nearly all
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`decisions” of Carolina One and “provided hands-on decision making with respect to the
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`activities” of the company. (Id. ¶ 30.) Moreover, he avers that Romanosky as listing broker
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`and the Scarafiles as managing principals “had the right and ability to supervise and/or
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`control [the] infringing conduct of [Carolina One], and/or stop the infringements once they
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`began.” (Id.) Defendants, in their motion to dismiss, concede that Romanosky and
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`8
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`2:19-cv-03590-BHH Date Filed 11/16/20 Entry Number 19 Page 9 of 14
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`Carolina One benefited financially from the sale of the Boat Slip (see ECF No. 13 at 2),
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`demonstrating a financial interest for the Individual Defendants that is logically tied to the
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`use of the Copyrighted Works to market the Boat Slip for sale. Thus, the allegations in
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`the complaint, read in the light most favorable to Plaintiff, show that the Individual
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`Defendants were decision-makers at Carolina One with the power to control the allegedly
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`infringing conduct, and that they directly benefited from the profit derived in part by use
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`of the Copyrighted Works. Plaintiff’s vicarious infringement cause of action states a
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`plausible claim for relief and the motion to dismiss the claim is denied.
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`D. Contributory Copyright Infringement
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`“Under a theory of contributory infringement, ‘one who, with knowledge of the
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`infringing activity, induces, causes or materially contributes to the infringing conduct of
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`another’ is liable for the infringement, too.” CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d
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`544, 550 (4th Cir. 2004) (quoting Gershwin Publishing Corp. v. Columbia Artists Mgmt.,
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`Inc., 443 F.2d 1159, 1162 (2d Cir. 1971)). Thus, to adequately plead a claim for
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`contributory copyright infringement a plaintiff must show (1) there is direct infringement,
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`and (2) the alleged contributory infringer induced, caused, or materially contributed to the
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`direct infringement. See id. In the case of corporate officers or directors, such as the
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`Individual Defendants in the instant case, courts “have interpreted this to require that the
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`corporate officer have the right and ability to supervise the infringing activity, and a direct
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`financial interest in such activities.” Broad. Music, Inc. v. Jeep Sales & Serv. Co., 747 F.
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`Supp. 1190, 1194 n.1 (E.D. Va. 1990) (internal modification, quotation marks, and
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`citations omitted). The mental state required to establish “knowledge” of the infringing
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`activity on the part of the contributory infringer is satisfied by willful blindness, which is
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`9
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`2:19-cv-03590-BHH Date Filed 11/16/20 Entry Number 19 Page 10 of 14
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`recognized as “equivalent to actual knowledge.” BMG Rights Mgmt. (US) LLC v. Cox
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`Commc’ns, Inc., 881 F.3d 293, 308 (4th Cir. 2018) (emphasis in original) (citing Global–
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`Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011) (“[P]ersons who know
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`enough to blind themselves to direct proof of critical facts in effect have actual knowledge
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`of those facts.”); In re Aimster Copyright Litig., 334 F.3d 643, 650 (7th Cir. 2003) (“Willful
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`blindness is knowledge, in copyright law . . . as it is in the law generally.”)).
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`The factual allegations that support Plaintiff’s contributory copyright infringement
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`claim against the Individual Defendants are generally similar to those that support his
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`claim for vicarious infringement discussed above (supra at 8–9). The complaint states
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`that the contributory infringement claim, count four, is made in the alternative to the first
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`two counts of direct infringement and the third count of vicarious infringement. (Compl. ¶
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`32.) Defendants do not appear to dispute that the Scarafiles are managing principals and
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`decision-makers of Carolina One. (See ECF No. 13 at 9.) Instead they argue that
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`“Carolina One’s agents are independent contractors and not employees,” and “Carolina
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`One cannot control how agents choose to list their client’s properties” nor does it
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`“determine the advertisements used for listing and marketing properties; the language
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`and photographs used are the sole discretion of the real estate agent.” (Id. at 9–10.) With
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`respect to Romanosky, Defendants assert she is not liable for contributory infringement
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`“because this claim is a secondary liability claim and the Plaintiff fails to provide any
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`plausible allegations that she knew ‘of another’s infringement.’” (Id. at 10.) Such
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`conclusory assertions do not nullify the allegations of a well-pleaded complaint at the
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`motion to dismiss stage.
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`Plaintiff alleges that Romanosky and the Scarafiles are the “dominant influences”
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`10
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`2:19-cv-03590-BHH Date Filed 11/16/20 Entry Number 19 Page 11 of 14
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`at Carolina One, and that all three “provide hands-on decision making with respect to the
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`activities of the entity, set and control the company’s policies and protocols, and
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`established corporate rules and cultures which encouraged the infringing activities.”
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`(Compl. ¶ 33.) Moreover, Plaintiff avers that the Individual Defendants
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`had the right and ability to supervise and/or control the infringing conduct of
`[Carolina One] and of its employees, agents, and/or servants and/or to stop
`the infringements once they began, but either directly refused to exercise
`such rights or chose to remain willfully blind to the infringing activities while
`creating a work environment that encouraged and enabled the same.
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`(Id.) Additionally, Plaintiff alleges that the Individual Defendants “had an obvious and
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`direct financial interests [sic] in the infringing activities of the company they ran.” (Id.)
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`Accepted as true, and taken in conjunction with Plaintiff’s allegations regarding
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`Defendant’s reaction to the cease and desist letter—to wit, removing some but not all of
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`the allegedly infringing content—Plaintiff’s contributory infringement claim sets forth
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`sufficient facts to state a claim, in the alternative, to his direct infringement and vicarious
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`infringement claims. Accordingly, the motion to dismiss Plaintiff’s fourth cause of action
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`is denied.
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`E. Violations of the Digital Millennium Copyright Act (“DMCA”)
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`In their challenge to Plaintiff’s fifth cause of action, Defendants argue that pursuant
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`to 17 U.S.C. § 512(c), Oppenheimer’s claims for violations of the DMCA should be
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`dismissed against them because Plaintiff has not shown that Defendants can control the
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`syndication of a database they do not own—namely, the Multiple Listing Service for the
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`Greater Charleston Area. (See ECF No. 13 at 10–12.) The argument is misplaced.
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`Defendants have not shown that they are a “service provider” as defined by 17 U.S.C. §
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`512(k)(1), and Plaintiff’s claims do not allege facts purporting to show that Defendants
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`2:19-cv-03590-BHH Date Filed 11/16/20 Entry Number 19 Page 12 of 14
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`are a “service provider” within the meaning of the statute.
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`Under 17 U.S.C. § 512(c), “A service provider shall not be liable for monetary relief,
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`or, except as provided in subsection (j), for injunctive or other equitable relief, for
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`infringement of copyright by reason of the storage at the direction of a user of material
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`that resides on a system or network controlled or operated by or for the service provider
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`. . .”, if certain conditions apply. See id. A “service provider” is defined as “an entity offering
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`the transmission, routing, or providing connections for digital online communications,
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`between or among points specified by a user, of material of the user’s choosing, without
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`modification to the content of the material as sent or received,” or “a provider of online
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`services or network access, or the operator of facilities therefor.” See 17 U.S.C. §
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`512(k)(1). Recognizable examples of “service providers” are common carriers such as
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`Verizon, AT&T, Comcast, and other internet service providers. Here, neither Carolina One
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`nor any of the Individual Defendants have shown that they are a “service provider” entitled
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`to protection under § 512(c). Plaintiff has alleged direct acts of copyright infringement and
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`violations of the DMCA, and this safe harbor provision of the Copyright Act has no
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`relevance to those allegations.
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`The Court finds Plaintiff has properly pled that Defendants violated the DMCA, 17
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`U.S.C. § 1202. In general, the DMCA prohibits any person from knowingly providing or
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`distributing copyright management information (“CMI”) that is false, and from removing or
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`altering CMI without the authority of the copyright owner or the law. See id. Oppenheimer
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`alleges that he marked the Copyrighted Works with his CMI on the face of the images in
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`legible captions just below the image (supra at n.2), and within the metadata of the image.
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`(Compl. ¶¶ 36.) He further alleges that one or more of the Defendants, or a third party at
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`2:19-cv-03590-BHH Date Filed 11/16/20 Entry Number 19 Page 13 of 14
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`their direction, violated the DMCA by removing and/or obscuring Oppenheimer’s facial
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`and metadata CMI. (Id. ¶ 37.) Plaintiff attached two exhibits to the complaint showing that
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`Oppenheimer’s CMI was embedded in the metadata of his original Works but was
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`stripped from the allegedly infringing images. (See ECF Nos. 1-6 & 1-7.) Oppenheimer
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`avers that one or more of the Defendants distributed copies and/or derivatives of
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`Oppenheimer’s Works knowing that such facial and metadata CMI had been cropped-off,
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`removed, or obscured beyond legibility, all without authorization. (Compl. ¶¶ 38–39.)
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`Paintiff’s allegations, along with the supporting exhibits, provide sufficient factual content
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`for the Court to draw a reasonable inference that Defendants are liable for violating the
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`DMCA.
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`F. Statute of Limitations
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`Defendants briefly argue that Plaintiff’s complaint should be dismissed because
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`copyright infringement has a three-year statute of limitations, and that any action for
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`infringement must be commenced within three years after the claim has accrued. (ECF
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`No. 13 at 12 (citing 17 U.S.C. § 507(b)).) Defendants note that Romanosky listed the Boat
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`Slip for sale in November 2016 and Plaintiff did not file this action until December 20,
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`2019. (Id. at 13.)
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`The Copyright Act is silent as to when a copyright claim accrues for purposes of
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`the three-year statute of limitations, but the Fourth Circuit Court of Appeals has held that
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`“a claim accrues when ‘one has knowledge of a violation or is chargeable with such
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`knowledge.’” Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 796 (4th Cir.
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`2001) (quoting Hotaling v. Church of Jesus Christ of Latter–Day Saints, 118 F.3d 199,
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`202 (4th Cir. 1997)). Defendants have not demonstrated that Oppenheimer knew of the
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`13
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`2:19-cv-03590-BHH Date Filed 11/16/20 Entry Number 19 Page 14 of 14
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`alleged copyright violation, or was chargeable with such knowledge, more than three
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`years before filing suit on December 20, 2019. The fact that Romansky listed the Boat
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`Slip for sale in November 2016 does not mean that Oppenheimer knew of the listing or
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`was chargeable with knowledge thereof. The motion to dismiss on this basis is denied.
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`CONCLUSION
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`For the reasons set forth above, Defendants’ motion to dismiss the complaint
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`pursuant to Rule 12(b)(6) (ECF No. 13) is DENIED.
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`IT IS SO ORDERED.
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`/s/ Bruce Howe Hendricks
`United States District Judge
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`November 16, 2020
`Charleston, South Carolina
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`14
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