Larry Philpot is a freelance photographer who photographs musicians. Philpot sued Kos Media after they reportedly posted Philpot's copyrighted photographs of Willie Nelson, Tom Petty, and Ted Nugent without attributing the photos to Philpot. Philpot charged that Kos violated the Copyright Act and the Digital Millennium Cpoyright Act. Kos moved to dismiss on the grounds that some of the claims were untimely and therefore barred by the statute of limitations, and that the use of the Nugent image was not infringing as a matter of law. Kos also requested judicial notice of a copy of an image from the Internet Archive that showed that Kos provided attribution information when using the Petty image.
The court denied Kos's motion to dismiss, finding that Philpot is allowed to make conclusory allegations regarding an affirmative statute of limitations defense and that Kos does not substantively address the infringement claims. The court declined to grant judicial notice on the Petty image, holding that this kind of factual dispute should not be resolved on a motion to dismiss.