COMET v. USA

Filing 43

REPORTED OPINION: ECF No. 37 reissued. Signed by Judge David A. Tapp. (emc) Service on parties made.

In the United States Court of Federal Claims
No. 23-639
Filed: September 6, 2024 †
Published: September 25, 2024

RENEE COMET,
Plaintiff,
v.
THE UNITED STATES,
Defendant.
Faith D. Beckworth, Joel B. Rothman, and Layla Nguyen, SRIPLAW, P.A., Atlanta, Georgia, for
Plaintiff. 1
Hayley A. Dunn, Trial Attorney, Commercial Litigation Branch, Civil Division, Scott Bolden,
Director, and Brian M. Boynton, Principal Deputy Assistant Attorney General, United States
Department of Justice, for Defendant.
MEMORANDUM OPINION AND ORDER
TAPP, Judge.
The United States moves for summary judgment, primarily arguing that the statute of
limitations bars Plaintiff Renee Comet’s (“Ms. Comet”) copyright claims. (Defendant’s Motion
for Summary Judgment (“Def.’s Mot. for Summ. J.”), ECF No. 27). The United States further
argues that if jurisdiction exists, and if the Court ultimately determines liability against the
United States, Ms. Comet’s damages must be statutorily capped at $750. (Id.). Ms. Comet argues
that issues of fact exist concerning whether infringement has occurred within three years of the

†

This Opinion was originally filed under seal on September 6, 2024, (ECF No. 37). The Court
provided parties the opportunity to review this Opinion for any proprietary, confidential, or other
protected information and submit proposed redactions. In a Joint Status Report filed September
19, (ECF No. 40), the parties proposed redactions which the Court accepts. The sealed and
public versions of this Opinion differ only to the extent of those redactions, the publication date,
and this footnote.
1

Faith D. Beckworth was counsel of record at the time of briefing. On August 28, Layla Nguyen
was substituted as counsel of record. (ECF No. 36). Because Ms. Beckworth was counsel of
record during briefing, her name appears first in the introduction.

Complaint, necessarily precluding summary judgment. (Plaintiff’s Response to the Motion for
Summary Judgment (“Pl.’s Resp.”), ECF No. 29). Ms. Comet also asserts that 17 U.S.C. §
405(c) does not limit her recovery. (Id.). Ultimately, the Court agrees that a genuine issue of
material fact exists as to Ms. Comet’s reproduction rights under the Copyright Act but finds no
genuine issues as to her rights to display and distribute. Furthermore, the Court finds partial
summary judgment on the issue of statutory damages to be premature. Accordingly, the United
States’ Motion for Summary Judgment is denied.
I.

Background

Ms. Comet asserts that she is a renowned photographer specializing in still life
photography for advertising, packaging, digital content, cookbooks, and recipe videos. (Compl.
at 1, ECF No. 1). Her style of photography involves the use of “exquisite lighting techniques,
minimalist propping, and refreshingly uncomplicated backgrounds” that Ms. Comet asserts are
“highly desirable” to her customer base. (Id.). Ms. Comet also claims her clientele consists of
several high-profile companies and government agencies, including Food Network, Marriot
International, the United States Postal Service, and the Internal Revenue Service. (Id. at 2–3).
Several federal agencies allegedly used Ms. Comet’s published photograph; this case involves
use of her work by the United States Department of Agriculture (“USDA”). (Id.; see generally
Def’s. Mot. for Summ. J.).
The Almond Board of California (“ABC”) is a representative of the United States
government established to promote the research and marketing of almonds grown in the state of
California. (Handling of Almonds Grown in California, 15 Fed. Reg. 4993–5007 (Aug. 4, 1950)
(codified at 7 C.F.R. Part 981)). ABC sought a photographer to capture images of almonds that
would highlight almond usage in certain recipes. (Def.’s Mot. for Summ. J. Ex. 15 (Deposition
(“Dep.”) of M. Mautz, ABC, Dec. 14, 2023) at 44:3–22, 102:25–103:20, ECF No. 27-15). Ms.
Comet submitted a cost estimate of $
to photograph almonds for ABC. (Def.’s Mot. for
Summ. J. Ex. 5 (Renée Comet Photography Estimate to Porter Novelli on behalf of ABC, March
23, 2010), ECF No. 27-5). ABC selected Ms. Comet for the photoshoot and paid $
towards the total cost prior to the shoot. (Def.’s Mot. for Summ. J. Ex. 15 (Dep. of M. Mautz,
ABC, Dec. 14, 2023) at 103:16–105:6, ECF No. 27-15; see also Ex. 16 (Dep. of R. Comet,
Plaintiff, Nov. 9, 2023) at 171:14–16, ECF No. 27-16). Ms. Comet submitted an updated invoice
for $
, minus ABC’s deposit of $
, and ultimately delivered 100 photographs
to ABC, including the photo subject to this controversy. (Def.’s Mot. for Summ. J. Ex. 6
(“Invoice”) at A75, ECF No. 27-6; see also Ex. 16 (Dep. of R. Comet, Plaintiff, Nov. 9, 2023) at
170:11–16, ECF No. 27-16).
A.

USDA’s Use of the Work

In February 2012, the USDA published an article titled “Infrared Heating: Hot Idea for
Keeping Almonds Safe to Eat” (“February 2012 Article”) in USDA’s online magazine. (Def.’s
Mot. for Summ. J. at 3). ABC gave the USDA permission to include one of Ms. Comet’s photos
(“the Work”) in the article. (Id.). It is undisputed that no later than January 13, 2015, the USDA
uploaded the Work onto its server and web content management system, Umbraco, and

2

published the February 2012 Article with the Work on its website. 2 (Id. at 4; Pl.’s Resp. at 5
(“On January 13, 2015, the Work was “published” again.”)). The USDA later removed the Work
from its February 2012 Article on December 20, 2021. (Id.).

(COMPL. AT 4).
In March 2018, the USDA would again use the Work in an AgResearch Magazine article
entitled “Going Nuts Over Calories” (“March 2018 Article”). (Id. at 4). It is undisputed that no
later than March 2018, the USDA uploaded the Work onto its server and web content
management system, Umbraco, and published the March 2018 Article with the Work on its
website. 3 The USDA removed the Work from the March 2018 Article on December 20, 2021.
(Id.).

2

See Infrared Heating: Hot Idea for Keeping Almonds Safe To Eat, United States Department of
Agriculture AgResearch Magazine, https://agresearchmag.ars.usda.gov/2012/feb/almonds (last
visited Sept. 6, 2024). (Def.’s Mot. for Summ. J. at 3). The United States asserts the reason for
the three-year gap between 2012 and 2015 is not that the USDA first published these in 2015.
Rather, the United States confirms that in “approximately 2014” USDA transitioned from its old
content management system, SitePublisher 2.5, to Umbraco, the current content management
system. During the transition all old data from SitePublisher 2.5 was lost and is currently
unavailable, though the United States agrees that “it is likely that the USDA first uploaded the
Work onto the server and published on the website in the February 2012 Article prior to
November 20, 2014.” (Id. Ex. 19 (Def.’s Am. Obj. and Resp. Pl.’s First Set of Interrog.), at 15,
ECF No. 27-19); see also Id. Ex. 7 (Screenshot of Umbraco Audit Trail for February 2012
AgResearch Magazine Article, Infrared Heating: Hot Idea for Keeping Almonds Safe to Eat, at
A78, ECF No. 27-7).
3

See Going Nuts Over Calories, United States Department of Agriculture AgResearch
Magazine, https://agresearchmag.ars.usda.gov/2018/mar/calories/ (last visited Sept. 8, 2024).

3

The USDA utilized the image again on the USDA-ARS’s Image Gallery (“Image Gallery
webpage”) which indexes USDA images. (Id. at 4–5). It is undisputed that no later than March
2018, the USDA uploaded the Work onto its server and web content management system,
Umbraco, and published the Work on one of its websites. 4 The United States alleges that on
December 10, 2020, the Image Gallery webpage received an archive tag, but this did not
republish the webpage, cause the Work to be reuploaded to the server, nor did it impact the page
being publicly available. (Id. at 5). On October 19, 2021, the USDA unpublished the webpage in
Umbraco, and made it unavailable for public viewing at that time. (Id.).
B.

The Start of Litigation

Ms. Comet purports to have discovered the use of her work on USDA’s website around
July 15, 2020. (Compl. at 5). On May 3, 2023, Comet initiated legal action alleging that USDA
infringed on her exclusive rights to reproduce, display, and distribute the Work. (Id. at 8). Ms.
Comet alleges that these three instances where the USDA “upload[ed] the Work to its server,” as
evidenced by the webpages, constitute infringements of the right to reproduction. (Id. at 6 (citing
17 U.S.C. § 106(1))). Ms. Comet also alleges that by making the Work available for download
for free to third parties, USDA infringed on Ms. Comet’s distribution rights. (Id. at 7 (citing 17
U.S.C. § 106(3))). Additionally, Ms. Comet alleges that by displaying the Work, USDA violated
Comet’s right to display. (Id. (citing 17 U.S.C. § 106(5))). Plaintiff seeks to recover actual
damages or statutory damages. (Id. (citing 17 U.S.C. § 504(c)(1))).
II.

Analysis

The United States argues that it is entitled to summary judgment because Ms. Comet’s
“claims are entirely barred by the statute of limitations set forth in 28 U.S.C. § 1498(b).” (Def.’s
Mot. for Summ. J. at 9–25). In addition, the United States maintains that even if jurisdiction
exists, and should the Court find the United States liable, “statutory damages must be limited to
$750 as a matter of law.” (Id. at 25–30). The Court ultimately finds that genuine issues of
material fact exist as to whether the United States republished the copyrighted work to its server
after May 3, 2020, precluding summary judgment on this issue. The Court also finds the United
States’ argument regarding minimum statutory damages is premature.

(Def.’s Mot. for Summ. J. at 4 (“In March 2018, the USDA used the Work in an AgResearch
Magazine article entitled “Going Nuts Over Calories[.]”); Pl.’s Resp. at 5 (“On March 8, 2018,
the Government published the Work on its website in an article titled Going Nuts Over
Calories[.]”))
4

(Def.’s Mot. for Summ. J. at 4 (“It is undisputed that no later than March 13, 2018, the USDA
uploaded the Work onto its server and web content management system, Umbraco, and
published the Work on the Website [.]”); Pl.’s Resp. at 5 (“The Work was “published” again on
March 13, 2018, and March 23, 2018[.]”) (citing https://www.ars.usda.gov/oc/images/
photos/mar18/d2411-1/)).

4

A.

Standard of Review

The Court may grant summary judgment if the pleadings, affidavits, and evidentiary
materials filed in a case reveal that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” RCFC 56(a). The moving party bears the
initial burden to demonstrate the absence of any genuine issue of material fact. The moving party
bears the initial burden to demonstrate the absence of any genuine issue of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they “might affect the
outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine
factual dispute exists when “the evidence is such that a reasonable [factfinder] could return a
verdict for the nonmoving party.” Id. A party seeking to establish a genuine dispute of material
fact must “cit[e] to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials.” RCFC 56(c)(1)(A).
While “inferences to be drawn from the underlying facts . . . must be viewed in the light
most favorable to the party opposing the motion,” United States v. Diebold, Inc., 369 U.S. 654,
655 (1962), summary judgment may still be granted when the party opposing the motion submits
evidence that “is merely colorable . . . or is not significantly probative.” Anderson, 477 U.S. at
251, (internal citation omitted). However, the moving party “need not produce evidence showing
the absence of a genuine issue of material fact but rather may discharge its burden by showing . .
. that there is an absence of evidence to support the nonmoving party's case.” Dairyland Power
Co-op. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994) (citing Celotex Corp., 477 U.S. at
325). Courts may only grant summary judgment when “the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party.” Matsushita, Elec. Indus. Co., Ltd. v.
United States, 475 U.S. 574, 587 (1986) (quoting First Nat. Bank of Ariz. v. Cities Serv. Co., 391
U.S. 253, 289 (1968)). A trial court is permitted, in its discretion, to deny even a well-supported
motion for summary judgment, if it believes the case would benefit from a full hearing. Lowery
v. United States, 167 Fed. Cl. 28, 37 (2023) (citing United States v. Certain Real & Pers. Prop.
Belonging to Hayes, 943 F.2d 1292 (11th Cir. 1991)).
B.

Limitations Period Under 28 U.S.C. § 1498(b)

The Court possesses jurisdiction pursuant to § 1498(b), which provides that the
“exclusive action” for a claim of copyright infringement against the United States . . . shall be
before the United States Court of Federal Claims. 28 U.S.C. § 1498(b). Before the Court may
even begin to determine whether Ms. Comet may be entitled to either statutory damages or actual
damages, it must first determine whether recovery at all is permitted by § 1498(b).
The relevant language of the statute provides: “[e]xcept as otherwise required by law, no
recovery shall be had for any infringement of a copyright covered by this subsection committed
more than three years prior to the filing of the complaint[.]” 28 U.S.C. § 1498(b). From the plain
language of the statute, recovery is prohibited for infringements that occurred more than three
years prior to when a plaintiff files their initial complaint. Further, limitations periods that
provide this Court with jurisdiction, along with any exceptions, “must be strictly construed.”
Wechsberg v. United States, 54 Fed. Cl. 158, 163 (2002). Claimants are permitted to sue the
United States through a waiver of sovereign immunity, but “any statute that creates a waiver of
5

sovereign immunity must be strictly construed in favor of the government.” Id. at 164 (quoting
Boyle v. United States, 200 F.3d 1369, 1372-73 (2000)).
It is also critical for the Court to distinguish between a statute of limitations and a statute
of repose. “[A] statute of limitations creates ‘a time limit for suing in a civil case, based on the
date when the claim accrued.’” CTS Corp. v. Waldburger, 573 U.S. 1, 7-8 (2014). “A statute of
repose, on the other hand, puts an outer limit on the right to bring a civil action” that is
“measured not from the date on which the claim accrues but instead from the date of the last
culpable act or omission of the defendant.” (Id. at 8). Such statutes bar “any suit that is brought
after a specified time since the defendant acted . . . even if this period ends before the plaintiff
has suffered a resulting injury.” Id. (quoting Black’s 1546 (9th ed. 2009)). Statutes of limitations
require that a plaintiff diligently pursue prosecution of known claims, while a statute of repose
reflects a “legislative judgment that a defendant should be free from liability after the
legislatively determined period of time.” Corner Post, Inc. v. Board of Governors of Federal
Reserve System, 144 S. Ct. 2440, 2452 (2024) (quoting CTS Corp., 573 U.S. at 8-9) (referencing
how a statute “which sets a filing deadline of 60 days from the ‘entry’ of the agency order”
constitutes a statute of repose).
Ms. Comet filed her Complaint on May 3, 2023. (See Compl.). Section 1498(b) is a
statute of repose that will only permit recovery if the United States committed a “culpable act”
within the three years prior to the Plaintiff’s Complaint. See Corner Post, Inc., 144 S. Ct. at
2452. Applying the plain language of Section 1498(b), any claims of infringement that occurred
prior to May 3, 2020, are barred. The parties seem to concede this premise. (Def.’s Mot. for
Summ. J. at 13 (“Plaintiff filed the complaint on May 3, 2023, making any claims that accrued
prior to May 3, 2020 untimely.”); Pl.’s Resp. at 7 (“Section 1498(b), by its plain language,
prevents recovery for ‘infringement . . . committed more than three years prior to the filing of the
complaint.’”)). Summary judgment on those claims occurring prior to May 3, 2020 is
appropriate. A question remains regarding whether the United States infringed on Ms. Comet’s
rights after May 3, 2020, which would entitle her to compensation.
1.

Reproduction

Ms. Comet alleges that the “USDA reproduced the copyrighted Work in violation of §
106(1) on its Website by uploading the Work to its server[.]” (Compl. at 6). The Copyright Act
grants a copyright owner the exclusive right to “reproduce the copyrighted work in copies or
phonorecords.” 17 U.S.C. § 106(1). The term “copies” is defined as “material objects, other than
phonorecords, in which a work is fixed and by any method now known or later developed, and
from which the work can be perceived, reproduced, or otherwise communicated, either directly
or with the aid of a machine or device.” 17 U.S.C. § 101. A copy is “‘fixed’ in a tangible
medium of expression when its embodiment in a copy or phonorecord . . . is sufficiently
permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a
period of more than transitory duration.” Id. A photographic image is “fixed” in the digital
context when “embodied (i.e., stored) in a computer’s server (or hard disk, or other storage
device). APL Microscopic, LLC v. United States, 144 Fed. Cl. 489, 494 (2019). The image stored
in the computer is the “copy” of the work for purposes of copyright law. Id. (citing Perfect 10,
Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1160 (9th Cir. 2007)).

6

The United States rebuts this assertion by arguing that the December 20, 2021
publications of the 2012 and 2018 Articles were made after the Work had been removed from the
webpages. (Defendant’s Reply (“Def.’s Reply”), at 3–7, ECF No. 32).
These documents by themselves do not clearly establish that the image itself was not in
fact republished. Ms. Comet presents evidence that raises a genuine issue of material fact. (Pl.’s
Resp. Exs. L, N, U). Taken together, Exhibits L, N, and U demonstrate that the USDA published
articles on various dates within the three-year period prior to Comet’s filing, but it is unclear if
those publications contained the actual protected work. Based on the record before it, the Court
cannot determine whether the image was, or was not, included in a publication that occurred
within the three-year period. Accordingly, summary judgment is precluded.
2.

Distribution

Title 17, U.S.C. § 106(3) provides a copyright owner with the exclusive right “to
distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer
of ownership, or by rental, lease, or lending.” The term “distribute” is not defined in the
Copyright Act, therefore the Court must determine when a “distribution” occurs.
Ms. Comet initially pled that the United States “distributed Comet’s Work in violation of
17 U.S.C. § 106(3) on its Website by making the Work available for download for free to third
parties . . . .” (Compl. at 7) (emphasis added). On the other hand, the United States contends that
“passively hosting an infringing work on the internet does not itself give rise to an infringing act,
but rather . . . the infringing act occurs when a defendant made an infringing work available for
distribution in its website.” (Def.’s Mot. for Summ. J. at 24). Ms. Comet attempts to recharacterize her Complaint through reliance on the Court’s analysis in APL Microscopic, LLC v.
United States, arguing “distribution occurs ‘each and every time a computer user accesses the
defendant’s website displaying the protected work.’” (Pl.’s Resp. at 11 (citing APL Microscopic,
144 Fed. Cl. at 499)).
In APL Microscopic, APL alleged that the National Aeronautics and Space
Administration (“NASA”) infringed on APL’s rights under 17 U.S.C. § 106. APL Microscopic,
144 Fed. Cl. at 498 (J. Damich). Amongst other claims, APL alleged NASA had infringed on
APL’s rights under § 106(3). Id. Judge Damich rejected the United States’ argument that
distribution occurs when the work is made available and found that Section 106(3) requires
“actual dissemination of either copies or phonorecords.” APL Microscopic, 144 Fed. Cl. at 498.
The Court in APL Microscopic considered the Copyright Act’s definition of
“publication.” Id. at 497. The Copyright Act defines publication as:
The distribution of copies or phonorecords of a work to the public by sale or
other transfer of ownership, or by rental, lease, or lending. The offering to
distribute copies or phonorecords to a group of persons for purposes of further
distribution, public performance, or public display, constitutes publication.
17 U.S.C. § 101. Judge Damich determined “[t]he first sentence of the definition tracks language
in § 106(3), making it clear that all distributions are publications” but also found that the inverse
“all publications are distributions” is not necessarily true. APL Microscopic, 144 Fed. Cl. at 497
9

(citing BMG Rights Mgmt. (US), LLC v. Cox Comms., Inc., 149 F. Supp. 3d 634, 670 (E.D. VA.
2015)). Additionally, the Court determined the statute’s use of the language “offering to
distribute” created “an additional category of publications that are not distributions,” thus
offering no support to the defendant’s argument that “making available” constitutes an
infringement. Id. Under this interpretation, Judge Damich rejected the theory that a distribution
occurs when the work is “made available” for distribution and held that “actual dissemination of
either copies or phonorecords” was required. Id. at 498. The Court subsequently concluded that
the United States’ upload of the work to its server did not trigger a violation of § 106(3), but
rather, any time a user accessed the website the United States wrongfully distributed the work.
(Id.). Although the Court is not bound by the decisions of other judges of this Court, such rulings
may be persuasive. E.g., Doe v. United States, 95 Fed. Cl. 546, 572 (2010). Here, the Court
declines to apply the logic of APL Microscopic to these circumstances.
As pointed out in Tom Hussey Photography, LLC v. BDG Media, Inc., APL Microscopic
primarily relied on BMG in reaching its conclusion; however, BMG did not address the statute of
limitations. 2020 WL 7481770 at *3 n.2 (D. Del. Dec. 18, 2020); see also APL, 144 Fed. Cl. at
496–98. This presents a significant concern in APL’s analysis, as § 1498(b) is a statute of repose
that specifically bars “any suit that is not brought after a specified time since the defendant
acted.” CTS Corp., 573 U.S. at 8; see also Corner Post, Inc., 144 S.Ct. at 2452 (highlighting
Congressional intent when creating a limitations period beginning with defendant’s action).
Therefore, having incorporated the restrictions set forth in § 1498(b), the United States’ most
recent culpable act is determinative when establishing the applicable limitations period.
Furthermore, the Supreme Court has made clear that “separately accruing harm should
not be confused with harm from past violations that are continuing.” Petrella v. Metro-GoldwynMayer, Inc., 572 U.S. 663, 671 n.6 (2014). Under this guidance, the mere fact that a particular
photo remained online does not trigger a separate act from which a new limitations period begins
to run. Id. (citing Klehr v. A.O. Smith Corp., 521 U.S. 179, 190 (1997)) (stating that each new act
must “harm [the plaintiff] over and above the harm that the earlier acts caused”). Accordingly,
the Court rejects Ms. Comet’s argument that distribution occurs each and every time a computer
user accesses the USDA’s website, and instead finds that infringement of the right of public
distribution under § 106(3) occurred when the Work was made available.
Ms. Comet premises liability under § 106(3) based on how many times third-party users
accessed USDA’s website. This mistakes third-party action for culpable acts of the United States
and she has presented no evidence that the United States has engaged in any acts of distribution
after May 3, 2020. Cohen v. United States, 98 Fed. Cl. 156, 170 (2011) (citing Boyle, 200 F.3d at
1372) (holding the United States may only be found liable for its own infringements or those of a
third party acting with government authorization or consent). The United States is correct as to
this argument and has not violated Ms. Comet’s distinct right of distribution.
3.

Display

The Copyright Act also grants a copyright owner the exclusive rights to “display the
copyrighted work publicly.” 17 U.S.C. § 106(5). “To ‘display’ a work means to show a copy of
it, either directly or by means of a film, slide, television image, or any other device or process[.]”

10

Id. In relevant part, 17 U.S.C. § 101 states that to “perform or display a work ‘publicly’” means
to:
[T]ransmit or otherwise communicate a performance or display of the work
… to the public, by means of any device or process, whether the members of
the public capable of receiving the performance or display receive it in the
same place or in separate places and at the same time or at different times.
Ms. Comet argues that the United States displayed her Work in violation of § 106(5) by
placing the Work on the USDA’s website. (Compl. at 7). Furthermore, Ms. Comet asserts her
claims are timely pursuant to § 1498(b) because “the Work was viewed, and therefore displayed
to third-party users, on the Government’s webpages at least until December 20, 2021. (Pl.’s
Resp. at 13) (emphasis in original). The United States opposes this position, arguing that “we
must look to when the defendant’s infringing conduct occurred.” (Def.’s Mot. for Summ. J. at
20). For reasons previously discussed in the analysis of § 106(3), the Court agrees with the
United States argument.
In APL Microscopic, Judge Damich relied primarily on a 9th Circuit decision that
considered “whether an internet service provider infringed on the plaintiff’s display rights by
storing thumbnail versions of copyrighted images on its server and communicating those images
to its users.” APL Microscopic, 144 Fed. Cl. at 499 (citing Perfect 10, Inc., 508 F.3d. at 115561). The Court in Perfect 10 found the plain language of 17 U.S.C. § 101 establishes that “a
person displays a photographic image by using a computer to fill a computer screen with a copy
of the photographic image fixed in the computer’s memory.” Id. (emphasis added). Following
this guidance, Judge Damich concluded that NASA infringed on APL’s right to display each
time a user viewed NASA’s webpage. Id. Under this interpretation, each viewing constituted a
new infringement that started a new limitations period pursuant to 28 U.S.C. §1498. Id. (finding
infringements from the initial display in 2004 up until the date that the complaint was filed in
2018). The Court disagrees.
As discussed above, APL Microscopic’s reliance on Perfect 10 does not address the
limitations period established under § 1498(b); this presents identical shortcomings to BMG. The
Supreme Court has made clear Congress “kn[ows] how to depart from the traditional rule to
create a limitations period that begins with the defendant’s action instead of the plaintiff’s
injury.” Corner Post, Inc., 144 S. Ct. at 2452; see supra pp. 6, 10.
Comet argues that the evidence provided demonstrates that “the Work was viewed[] and
therefore displayed to third-party users” until December 20, 2021. (Pl.’s Resp. at 13). Under this
theory, each view of the USDA’s webpage “starts a new limitations period . . . [and] Ms.
Comet’s claims are timely,” but this is contrary to the legislative judgment exercised by
Congress in creating a statute of repose as explained by the Supreme Court. See Discussion
supra Section II. B. To reach Ms. Comet’s understanding of § 1498(b), the Court would need to
make an inferential step beyond § 1498(b) to find liability. The Court declines to do so. Ms.
Comet has produced no evidence that the United States engaged in any acts that infringed on her
right of display after May 3, 2020.

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C.

Statutory Damages

When the United States infringes on a copyright, 28 U.S.C. § 1498(b) provides “for
recovery of [the copyright owner’s] reasonable and entire compensation as damages for such
infringement as damages for such infringement, including the minimum statutory damages as set
forth in section 504(c) of title 17, United States Code.” 28 U.S.C. § 1498(b). Section 504(c) of
the Copyright Act addresses the ability of a copyright owner, in actions between private parties,
to elect an award of statutory damages instead of actual damages:
[T]he copyright owner may elect, at any time before final judgment is
rendered, to recover, instead of actual damages and profits, an award of
statutory damages for all infringements involved in the action, with respect
to any one work, . . . in a sum of not less than $750 or more than $30,000 as
the court considers just.
17 U.S.C. § 504(c)(1).
The United States argues that “any award of statutory damages must be limited to $750
pursuant to the plain meaning of ‘the minimum statutory damages’ in § 1498(b) and because
there is only one work at issue.” (Def.’s Mot. for Summ. J. at 30). The legal issues surrounding
statutory damages are premature. Ms. Comet has not elected an award of statutory damages
instead of actual damages. (See, e.g., Compl. at 8 (stating Comet intends to seek “actual or
statutory damages” (emphasis added)); Compl. at 10 (requesting “[d]efendant be required to pay
Plaintiff her actual or statutory damages, as provided in 17 U.S.C. § 504)). Should Ms. Comet’s
copyright infringement claim succeed, Comet may elect an award of statutory damages “at any
time before final judgment is rendered.” 17 U.S.C. § 504(c)(1); see U.S.C. 1498(b). Until she
does so, the Court declines to decide this issue. See Cohen v. United States, 100 Fed. Cl. 461,
485 (2011) (declining to decide the statutory minimum issue prior to plaintiff’s election).
III.

Conclusion

The Court DENIES the United States’ Motion for Summary Judgment and DENIES the
United States’ Motion for Partial Summary Judgment, (ECF No. 27). While the Court finds that
the United States did not violate Ms. Comet’s right to distribute or display, a genuine issue of
material fact exists as to whether the United States violated Ms. Comet’s right to reproduce in
violation of 17 U.S.C. § 106(1). Based on the findings therein, Ms. Comet is precluded from
entering any further evidence pertaining to her arguments under §§ 106(3) and 106(5) of the
Copyright Act. Further, any finding as to statutory damages is premature.
The parties shall meet and confer and file a Joint Status Report proposing redactions to
this memorandum opinion within fourteen (14) days of its entry to allow the Court to file a
public version of the opinion.

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The Court hereby adopts the following Pre-Trial Schedule:
Event

Deadline

Initial meeting of counsel to exchange exhibit and witness
lists, identify deposition transcripts, and establish
stipulation of agreed facts
Initial Pre-trial Conference
Plaintiff’s Witness List and Exhibit List
Defendant’s Witness List and Exhibit List
Defendant’s Objections to Plaintiff’s Witness List and
Exhibit List
Plaintiff’s Objections to Defendant’s Witness List and
Exhibit List
Plaintiff’s Reply to Objections to Witness List and Exhibit
List
Defendant’s Reply to Objections to Witness List and
Exhibit List
Plaintiff’s Pretrial Memorandum, not to exceed 25 pages
Motions in limine Filing Deadline for all Parties
Defendant’s Pretrial Memorandum, not to exceed 25 pages
Responses to Motions in limine
Replies to Motions in limine
Meeting of Counsel
Joint Stipulation of Facts
Joint Statement of Good Faith
Joint Exhibit List, filed in CM/ECF
Final Pre-trial Conference
Order of Witnesses, filed in CM/ECF
Trial

September 10, 2024
September 12, 2024
11:00 AM ET
September 16, 2024
September 16, 2024
September 30, 2024
September 30, 2024
October 14, 2024
October 14, 2024
October 14, 2024
October 21, 2024
October 28, 2024
November 4, 2024
November 11, 2024
November 15, 2024
November 18, 2024
November 18, 2024
November 18, 2024
December 2, 2024
December 6, 2024
December 9, 2024
9:00 AM ET

IT IS SO ORDERED.
s/
David A. Tapp
DAVID A. TAPP, Judge

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