Larry Philpot is a freelance photographer who photographed musician Willie Nelson and made the photograph available under a Creative Commons License. Philpot alleged that NOTMC infringed his copyright by publishing, copying, and displaying the photograph on their website without proper attribution to Philpot and violated 17 U.S.C. 1202 by improperly removing and altering the photo's metadata. Philpot reportedly discovered the copyright infringement on October 1, 2015, and filed this suit on October 1, 2018. NOTMC moved to dismiss Philpot's complaint, arguing that 1) both of his claims were time-barred as the discovery rule might not apply to copyright actions under Petrella v. MGM and 2) Philpot doesn't hold a valid copyright registration for the photo and therefore has no claim for relief. Specifically, NOTMC alleged that Philpot sought registration for his photographs as unpublished works, when in fact the photo in question was previously published under a Creative Commons license.
Motion to dismiss denied. The court held that it will apply the discovery rule in line with Fifth Circuit precedent, which allows for cases to proceed if filed within three years of discovery. Additionally, since Philpot alleged that his certificate of registration incorporates the photo in question and the court must assume the facts alleged in the complaint are true at this stage, the court held that the complaint facts were sufficient to overcome a motion to dismiss challenge.