Higbee & Associates has won an appeal at the Ninth Circuit Court of Appeals on behalf of one of the firm’s photographer clients. The case may make it easier for photographers to fend off motions to dismiss based on the three-year statute of limitations.
The appeal stems from a dispute regarding whether the use of a reverse image search to discover photography infringements bars a copyright holder from being able to sue on infringements that occurred outside of the Copyright Act’s three-year statute of limitations.
In 2018, the photographer discovered via a Higbee & Associate’s reverse image search tool that media giant Ziff Davis, LLC had infringed his photographs of X-Files stars David Duchovny and Gillian Anderson in two articles posted in 2014. Higbee & Associates filed the suit on behalf of the photographer against Ziff Davis in 2019 after settlement discussions broke down. In seeking to dismiss the lawsuit, Ziff Davis argued that because reverse image search technology has existed since 2011, The photographer should have discovered the infringements earlier than 2018, and that his lawsuit was barred because the 2014 infringements occurred beyond the three-year statute of limitations.
In siding with the photographer, the Ninth Circuit panel stated that the three-year statute of limitations only begins to run when a copyright holder “discovers, or reasonably should have discovered, the alleged infringement.” The panel concluded that the mere existence of reverse image search technology was not sufficient to definitively conclude that the infringements should have been discovered earlier.
“We have seen district courts in other circuits hastily dismiss copyright claims where the infringement began more than 3 years ago simply because the court believed that the copyright holder should have found the image using reverse image search technology. Hopefully, this appellate case will help put to that,” said attorney Mathew Higbee.
Case: 19-56465. Attorneys Mathew K. Higbee, Naomi M. Saregea, and Ryan E. Carreon of Higbee & Associates successfully handled the appeal.