Papazian v. Sony Music Entertainment

Filing 33

OPINION & ORDER re: 19 MOTION for Partial Summary Judgment, filed by Sony Music Entertainment. For the reasons set forth above, IT IS HEREBY ORDERED that Defendant's motion for partial summary judgment is GRANTED. The Clerk of the Court is respectfully directed to terminate the motion pending at docket number 19. Because the Court finds that Plaintiff may not recover actual damages, profits, statutory damages, or attorney's fees, IT IS HEREBY ORDERED THAT the part ies shall submit a joint letter no later than Friday, October 13, 2017 setting forth their views as to the remaining issues, if any, to be resolved in this action, and as further set forth herein. (Signed by Judge Richard J. Sullivan on 9/28/2017) (ras)

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(the “Photograph”). Though the exact date on which Plaintiff took the Photograph remains
unclear, he appears to have registered it with the Copyright Office on May 8, 2007. (Def. 56.1
Stmt. ¶ 7–8.)
Defendant admits that in June 2005 it released an album on compact disk entitled Big Guns:
The Very Best of Rory Gallagher, and that the Album featured Plaintiff’s photograph of Gallagher
in the case liner. (Compl. ¶ 2, 4.) However, Defendant also points to evidence that it ceased selling
or in any other way exploiting the Album by February 28, 2006. (Id. ¶ 5.) In fact, Defendant’s
internal records reveal that Defendant last distributed copies of the album in July 2005. (Doc. No.
21-3.) Furthermore, while the Album can still be purchased via third-party sellers on sites such as
Amazon.com, Defendant has submitted an affidavit from a Sony executive attesting to the fact that
Defendant “does not participate [in], and earns no revenue[] from[,]” these “subsequent
downstream or third party sale[s] of the Album.” (Doc. No. 26 ¶ 8; Doc. No. 21 ¶ 1; Def. 56.1
Stmt. ¶ 5.)
B. Procedural History
On October 10, 2016, Papazian brought this suit against Sony alleging infringement of his
copyright and exclusive rights in the Photograph in violation of sections 106 and 501 of the
Copyright Act. 17 U.S.C. §§ 106, 501. (Compl. ¶ 14.) Plaintiff seeks a declaratory judgment
that Defendant infringed his copyright in the Photograph, as well as actual damages and
Defendant’s profits attributable to the alleged infringement or statutory damages pursuant to 17
U.S.C. § 504(c). (Compl. Prayer for Relief.) He also asks for an accounting of all profits and
benefits derived by Defendant from the alleged infringement, costs and attorney’s fees pursuant to
17 U.S.C. § 1203(b), and pre-judgment interest. (Id.)

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On January 30, 2017, the parties submitted a joint letter to the Court in which Defendant
asserted that the case “can be resolved via an early motion for . . . summary judgment regarding
Plaintiff’s inability to recover damages, statutory damages, and/or attorneys’ fees as a matter of
law,” and that “either no or very limited discovery [would] be necessary.” (Doc. No. 17-1 at 3.)
Following a pre-motion conference with the parties on February 2, 2017, the Court set a briefing
schedule on the motion and stayed discovery pursuant to Federal Rule of Civil Procedure 26(c).
(Doc. No. 18.) On February 23, 2017, Defendant filed its motion for partial summary judgment,
along with a supporting memorandum. (Doc. Nos. 19, 21.) On March 11, 2017, Plaintiff filed his
reply memorandum opposing the motion and asserting a need for further discovery in order to
adequately respond. (Doc. No. 23.) Defendant thereafter filed a reply memorandum on March
16, 2017. (Doc. No. 25.)
II. LEGAL STANDARD
A. Summary Judgment
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment should
be rendered “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). There is “no genuine
dispute as to any material fact” where (1) the parties agree on all facts (that is, there are no disputed
facts); (2) the parties disagree on some or all facts, but a reasonable fact-finder could never accept
the nonmoving party’s version of the facts (that is, there are no genuinely disputed facts), see
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); or (3) the parties
disagree on some or all facts, but even on the nonmoving party’s version of the facts, the moving
party would win as a matter of law (that is, none of the factual disputes are material), see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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In determining whether a fact is genuinely disputed, the court “is not to weigh the evidence
but is instead required to view the evidence in the light most favorable to the party opposing
summary judgment, to draw all reasonable inferences in favor of that party, and to eschew
credibility assessments.” Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). Nevertheless, to show
a genuine dispute, the nonmoving party must provide “hard evidence,” D’Amico v. City of N.Y.,
132 F.3d 145, 149 (2d Cir. 1998), “from which a reasonable inference in [its] favor may be drawn,”
Binder & Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (internal quotation marks
omitted). “Conclusory allegations, conjecture, and speculation,” Kerzer v. Kingly Mfg., 156 F.3d
396, 400 (2d Cir. 1998), as well as the existence of a mere “scintilla of evidence in support of the
[nonmoving party’s] position,” Anderson, 477 U.S. at 252, are insufficient to create a genuinely
disputed fact. A moving party is “entitled to a judgment as a matter of law” on an issue if (1) it
bears the burden of proof on the issue and the undisputed facts meet that burden; or (2) the
nonmoving party bears the burden of proof on the issue and the moving party “‘show[s]’ – that is,
point[s] out . . . – that there is an absence of evidence [in the record] to support the nonmoving
party’s [position].” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986). When a defendant
raises the statute of limitations as an affirmative defense, “the defendant bears the burden of
establishing by prima facie proof that the limitations period has expired since the plaintiff’s claims
accrued.” Overall v. Estate of Klotz, 52 F.3d 398, 403 (2d Cir. 1995); see also Gonzalez v.
Hasty, 651 F.3d 318, 322 (2d Cir. 2011) (“[T]he burden is on the defendant to establish when a
federal claim accrues.”); Fed. R. Civ. P. 8(c).
B. Request for Further Discovery
Under Rule 56(d), the Court may “order a continuance” if a party opposing summary
judgment “shows by affidavit that . . . it cannot present facts essential to justify its opposition” to

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the motion. RSL Commc’ns PLC v. Bildirici, 649 F. Supp. 2d 184, 221–22 (S.D.N.Y. 2009), aff’d
sub nom. RSL Commc’ns PLC, ex rel. Jervis v. Fisher, 412 F. App’x 337 (2d Cir. 2011) (citing
Fed. R. Civ. P. 56(d)). Rule 56(d) “is not a shield against all summary judgment motions.”
Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994) (quoting Sundsvallsbanken
v. Fondmetal, Inc., 624 F. Supp. 811, 815 (S.D.N.Y. 1985)). To avoid summary judgment on Rule
56(d) grounds, the party seeking additional discovery must show by affidavit: “(1) what facts are
sought and how they are to be obtained, (2) how those facts are reasonably expected to create a
genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why the
affiant was unsuccessful in those efforts.” Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292,
303 (2d Cir. 2003) (quoting Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999)). The nonmoving party “must have ‘had the opportunity to discover information that is essential to his
opposition’ to the motion,” Trebor Sportswear Co. v. The Ltd. Stores, Inc., 865 F.2d 506, 511 (2d
Cir. 1989) (quoting Anderson, 477 U.S. at 250 n.5), but that party must also adduce “specific facts
indicating that a genuine factual issue exists,” Shaheen v. Naughton, 222 F. App’x 11, 14 (2d Cir.
2007) (citing Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir. 1998)), and “may not rely on
conclusory allegations or unsubstantiated speculation” of what may be found to justify further
discovery, id. (citing Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)). Decisions regarding
Rule 56(d) requests are within the district court’s discretion. Alphonse Hotel Corp. v. Tran, 828
F.3d 146, 151 (2d Cir. 2016).
III. DISCUSSION
Defendant now moves for partial summary judgment on several grounds. First, Defendant
argues that Plaintiff’s claims are time-barred by the Copyright Act’s statute of limitations. See 17
U.S.C. § 507(b). Second, Defendant argues that, even if any of Plaintiff’s claims are timely, his

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claim for statutory damages and attorneys’ fees should be dismissed, as the copyrighted work at
issue was not registered prior to the alleged infringement. Finally, Defendant opposes Plaintiff’s
request for further discovery and maintains that no additional information is needed to resolve this
case. The Court considers each of Defendant’s contentions in turn.
A. Statute of Limitations
Defendant argues that Plaintiff’s copyright infringement claims are time-barred for two
reasons. First, Defendant asserts that all of Plaintiff’s claims accrued more than three years before
he filed suit, making the entire action untimely. (Mem. at 6–9.) Second, Defendant maintains that
even if any of Plaintiff’s claims accrued within the last three years, Plaintiff is still not entitled to
recover damages since each alleged act of infringement occurred more than three years before he
filed this action. (Id. at 9–12.)
1. Accrual: Discovery vs. Injury Rules
Section 507(b) of the Copyright Act provides that “[n]o civil action shall be maintained
under the provisions of this title unless it is commenced within three years after the claim accrued.”
17 U.S.C. § 507(b). In Psihoyos v. John Wiley & Sons, Inc., the Second Circuit adopted the socalled “discovery rule” to determine when a Plaintiff’s claim accrues. 748 F.3d 120, 124–25 (2d
Cir. 2014). Under the discovery rule, a Plaintiff’s claim does not accrue “until the copyright holder
discovers, or with due diligence should have discovered, the infringement.” Id at 124. 2
Here, Defendant does not dispute that Plaintiff discovered the alleged infringement within
three years of filing this action. Nor does Defendant argue that Plaintiff should have discovered
Defendant’s alleged infringement before that time. Instead, Defendant urges the Court to reject
the discovery rule, under which Plaintiff’s claims would be timely, and to adopt a different accrual

2

To date, all Courts of Appeals that have passed on the question have adopted the discovery rule. 3 Nimmer on
Copyright § 12.05 [B][2][b].

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rule known as the “injury rule.” Under that rule, a copyright infringement claim accrues when the
infringing conduct itself occurs, regardless of when it was ultimately discovered. See 3 Nimmer
on Copyright § 12.05 [B] (2015) (hereinafter “Nimmer”). Because the last alleged acts of
infringement in this case took place more than three years before Plaintiff filed suit, applying the
injury rule would make Plaintiff’s suit untimely. (Mem. at 6–9.)
In an effort to convince the Court to abandon settled Second Circuit precedent, Defendant
relies on dicta from Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014). In Petrella,
the Supreme Court held that the equitable doctrine of laches could not be invoked to bar an
otherwise timely claim for copyright infringement. 134 S. Ct. at 1973–76. When discussing
section 507(b), the Supreme Court appeared to endorse the injury rule. See id. at 1969 (“A claim
ordinarily accrues when [a] plaintiff has a complete and present cause of action . . . A copyright
claim thus arises or ‘accrue[s]’ when an infringing act occurs.” (internal quotations omitted)).
Nonetheless, the Petrella Court clarified in a footnote that it had “not passed on the question” of
whether the injury or discovery rule is correct, id. at 1969 n.4, and in a subsequent opinion on a
related issue under the Patent Act, the Supreme Court reiterated that “‘we have not passed on the
question’ whether the Copyright Act’s statute of limitations is governed by [the discovery rule].”
SCA Hygiene Prod. Aktiebolag v. First Quality Baby Prod., LLC, 137 S. Ct. 954, 962 (2017).
Defendant’s reliance on Petrella is misplaced. Since Petrella was handed down, courts in
the Second Circuit have continued to follow the discovery rule as announced in Psihoyos, and the
Court can find no reason to depart from that approach here. Several district courts within this
Circuit have acknowledged the tension between Petrella and Psihoyos, but they have uniformly
concluded that they remain bound to apply the Second Circuit’s discovery rule until explicitly
directed otherwise. See, e.g., Energy Intelligence Grp., Inc. v. Scotia Capital (USA) Inc., No. 16-

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cv-617 (PKC), 2017 WL 432805, at *2 (S.D.N.Y. Jan. 30, 2017) (“Defendant urges the Court to
disregard the clear Second Circuit precedent from Psihoyos . . . in favor of dicta in Petrella that
the Supreme Court itself acknowledged was not controlling. This the Court will not do.”);
Lefkowitz v. McGraw-Hill Glob. Educ. Holdings, LLC, 23 F. Supp. 3d 344, 357 n.11 (S.D.N.Y.
2014) (“[A] suggestion that the Supreme Court may favor the injury rule, without more, does not
trump Second Circuit precedent. For now, Psihoyos remains the law of this Circuit”); accord
Hutson v. Notorious B.I.G., LLC, No. 14-cv-2307 (RJS), 2015 WL 9450623, at *4 n.4 (S.D.N.Y.
Dec. 22, 2015). The Court agrees. Thus, under the law of this Circuit, the argument that Plaintiff’s
claim accrued more than three years before he filed this action must be rejected.
2. Damages: “Rolling” vs. “Continuing Wrong” Approaches
Defendant alternatively argues that, regardless of when the underlying claim accrued, none
of the alleged acts of infringement occurred within the three years prior to Plaintiff’s
commencement of this action, thus barring Plaintiff from recovering damages – even if his claim
is technically timely under the discovery rule.
When infringing acts occur over time, as alleged in this case, the Court must not only
determine when a plaintiff’s claim accrued under section 507(b), it must also determine which, if
any, of the multiple infringing acts trigger actual or statutory damages under the Copyright Act.
Nimmer §12.05 [B][1]. To make this determination, Courts have generally applied either a
“continuous wrong” or a “rolling” approach to calculating damages. Id. Under the first approach,
“if a series of infringing acts constitutes a ‘continuing wrong,’” then only one such act need be
viable under the statute of limitations “in order for liability to attach to them all.” Id. § 12.05
[B][1][a] (citing Taylor v. Meirick, 712 F.2d 1112 (7th Cir. 1983)). Under the “rolling” approach,
by contrast, a plaintiff is entitled to recover damages only for infringing acts actually occurring up

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to three years before the filing of the complaint, “such that the passage of each additional day
forecloses one more day of past damages.” Id. § 12.05 [B][2][c].
The Second Circuit has always applied the rolling approach. See, e.g., Merchant v. Levy,
92 F.3d 51, 57 n.8 (2d Cir. 1996) (“[R]ecovery is barred for any infringing acts occurring more
than three years prior to suit”); Kregos v. Associated Press, 3 F.3d 656, 662 (2d Cir. 1993) (noting
the “disfavor that the continuing-infringement doctrine has received in the copyright-infringement
context” and concluding that “[t]he continuing-infringement doctrine . . . [is] unavailable in this
circuit”). And in Petrella, the Supreme Court explicitly adopted the rolling approach as the
appropriate way to determine the scope of relief. Indeed, the Supreme Court began its discussion
of the Copyright Act’s statute of limitations by asserting, “[u]nder the Act’s three year-provision,
an infringement is actionable within three years, and only three years, of its occurrence. And the
infringer is insulated from liability for earlier infringements of the same work.” Petrella, 134 S.
Ct. at 1969. The Petrella Court noted that “Congress provided two controlling time prescriptions”
in the Copyright Act, “the copyright term, which endures for decades . . . and § 507(b)’s limitations
period, which allows plaintiffs during that lengthy term to gain retrospective relief running only
three years back from the date the complaint was filed.” Id. at 1970. The majority makes this
point at least nine times throughout the Petrella opinion, the clearest of which removes any doubt
as to whether the Supreme Court adopted the rolling approach:
[A] successful plaintiff can gain retrospective relief only three years back from the
time of suit. No recovery may be had for infringement in earlier years. Profits
made in those years remain the defendant’s to keep. Brought to bear here, § 507(b)
directs that MGM’s returns on its investment in [the allegedly infringed work] in
years outside the three-year window (years before 2006) 3 cannot be reached by
Petrella.
Id. at 1973 (emphasis added); see also Nimmer §12.05 [B][2][c].

3

The plaintiff in Petrella filed suit in 2009. Petrella, 134 S. Ct. at 1965.

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Naturally, after Petrella, courts in this District have continued to apply the rolling approach
to determine the scope of plaintiffs’ relief for copyright infringement. See, e.g., Fischer v. Forrest,
No. 14-cv-1304 (PAE), 2017 WL 128705, at *6–7 (S.D.N.Y. Jan. 13, 2017), report and
recommendation adopted, No. 14-cv-1304 (PAE) (AJP), 2017 WL 1063464 (S.D.N.Y. Mar. 21,
2017); Wu v. John Wiley & Sons, Inc., No. 14-cv-6746 (AKH), 2015 WL 5254885, at *7 (S.D.N.Y.
Sept. 10, 2015). In both Fischer and Wu, for example, the court sensibly applied the Psihoyos
discovery rule to determine the date of accrual but the rolling approach to determine the extent of
relief available, thus reconciling Psihoyos and Petrella. Fischer, 2017 WL 128705, at *6; Wu,
2015 WL 5254885, at *4. 4
Plaintiff nevertheless contends that the language in Petrella adopting the rolling approach
was non-binding dicta and should be ignored by the Court. But in applying Supreme Court
precedent, this Court is bound “not only [by] the result but also those portions of the opinion
necessary to that result.” Seminole Tribe of Florida v. Fla., 517 U.S. 44, 67 (1996). And as
Nimmer persuasively concludes, the Supreme Court’s adoption of the rolling approach was
“integral to its holding.” Nimmer §12.05 [B][1][b][23.1]. In fact, the Petrella Court partially
based its decision that laches was inapplicable to actions under the Copyright Act on the fact that
the statute “itself takes account of delay” by limiting a prospective plaintiff’s recovery to damages
incurred in the “three-year look-back” period from the time of suit. Petrella, 134 S. Ct. at 1973.
The Supreme Court noted that “[o]nly by disregarding that feature of the statute” could the Ninth

4
Plaintiff draws the Court’s attention to Scotia Capital, 2017 WL 432805, at *2, in which Judge Castel wrote that
“under no reasonable reading of Petrella could the opinion be interpreted to establish a time limit on the recovery of
damages separate and apart from the statute of limitations.” This conclusion is difficult to square with the plain
language of Petrella delimiting relief to the three years prior to suit, and the Court declines to follow it.

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Circuit have held otherwise. Petrella, 134 S. Ct. at 1973.5 Therefore, because the clear and
specific three-year limitation on damages under section 507(b) was necessary to the result in
Petrella, it cannot be construed as dicta.
Applying the rolling approach to the facts here, the Court finds that Plaintiff cannot recover
damages for infringing acts that occurred before October 10, 2013, three years before he filed his
complaint. Sony has proffered evidence and affidavits establishing that it has not produced, sold,
or in any way profited from the allegedly infringing album in over eleven years. (Doc. No. 21.)
Plaintiff has offered no rebuttal to this evidence other than general claims that further discovery
could uncover ongoing infringement by Sony and that the Album is currently available for
purchase from various third parties. (Opp’n 8–10.) However, Sony has asserted by affidavit that
it maintains no relationship with and derives no benefit from these ongoing third-party sales of the
Album. (Doc. No. 26 at 2.) The law is clear that when an independent third-party resells or
otherwise profits from allegedly infringing products, they do so “on their own account and entirely
on their own responsibility,” and Sony cannot be vicariously liable for these third parties’ actions.
Mount v. Book-of-the-Month Club, Inc., 555 F.2d 1108, 1110 (2d Cir. 1977) (citation omitted).
Therefore, since any infringing acts for which Sony could be liable occurred long before the threeyear look back period for relief, Plaintiff is barred from recovering actual damages in this action.
The Court grants Defendant’s motion for partial summary judgment on this basis.

5

Admittedly, there is some doctrinal tension in applying both the discovery rule and the rolling approach. See
Nimmer § 12.05 [B][2][c] (noting that “[t]he whole purpose of the discovery rule is to relieve plaintiff from the effect
of his justified ignorance.”). But this Court is “bound by Second Circuit precedent ‘unless it is expressly or implicitly
overruled’ by the Supreme Court or an en banc panel of the Second Circuit.” In re S. African Apartheid Litig., 15 F.
Supp. 3d 454, 459 (S.D.N.Y. 2014) (citation omitted); see also Anderson v. Recore, 317 F.3d 194, 201 (2d Cir. 2003).
The Court remains bound by the Second Circuit’s decision to apply the discovery rule in Psihoyos, while at the same
time, Petrella requires this Court to apply the rolling approach in determining Plaintiff’s entitlement to damages.

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B. Statutory Damages and Attorney’s Fees
In the alternative, Plaintiff asserts that even if recovery of actual damages is precluded by
Psihoyos, he is nevertheless entitled to statutory damages and attorney’s fees as a result of
Defendant’s infringement. The most straightforward interpretation of Petrella, as adopted and
applied above, is that no recovery of any kind, including statutory damages, is permitted for
infringing acts occurring more than three years prior to suit. See Petrella, 134 S. Ct. at 1973 (“[A]
successful plaintiff can gain retrospective relief only three years back from the time of suit. No
recovery may be had for infringement in earlier years.” (emphasis added).)
But even if it could be argued that Petrella was ambiguous as to the availability of statutory
damages, Plaintiff’s claim for such damages here would still fail for the simple reason that
Defendant’s alleged infringement took place before Plaintiff registered his copyright. Under the
Copyright Act, no award for statutory damages or attorney’s fees may be given for “any
infringement of copyright in an unpublished work commenced before the effective date of its
registration.” 17 U.S.C. § 412(1); see also Troll Co. v. Uneeda Doll Co., 483 F.3d 150, 158 (2d
Cir. 2007) (“[A] plaintiff may not recover statutory damages or attorney’s fees for any
infringement ‘commenced’ before the effective date of a copyright’s registration.”). Plaintiff
nowhere asserts that the Photograph was registered prior to the alleged infringement; he simply
maintains that it “is registered with the United States Copyright Office” and provides a copyright
number that according to the Copyright Office Online Public Catalog does not exist. (Compl. ¶
9.) As Defendant correctly points out, the only copyright registered in Plaintiff’s name is entitled
“Greg Papazian rock photo gallery: no. 1,” bears a copyright number that differs by two digits
from the one provided by Plaintiff, and was registered on May 8, 2007, more than a year after

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Defendant ceased any infringing activity. 6 (Mem. at 2–3 n.2.) Plaintiff does not contest that the
copyright was registered in 2007, and instead argues conclusorily that the date of registration is a
disputed fact that should be resolved at trial. (Opp’n at 9.) But Plaintiff provides absolutely no
evidence “from which a reasonable inference in [his] favor may be drawn” on this issue, Binder &
Binder, 481 F.3d at 148, so the date of copyright registration cannot be considered a material fact
in dispute. Therefore, even under the most liberal reading of Petrella, Plaintiff still cannot recover
statutory damages or attorney’s fees.
C. Plaintiff’s Request for Further Discovery
Finally, Plaintiff claims that additional discovery is needed so that he may respond
adequately to Defendant’s motion. (Opp’n at 9–11.) At the outset, it bears noting that Plaintiff’s
request is procedurally deficient. Pursuant to Federal Rule of Civil Procedure 56(d), the nonmoving party must “show[] by affidavit or declaration that, for specified reasons, it cannot present
facts essential to justify its opposition” such that further discovery should be permitted. Fed. R.
Civ. P. 56(d) (emphasis added). The Second Circuit has held that such an affidavit must set out
“(1) what facts are sought [to resist the motion] and how they are to be obtained, (2) how those
facts are reasonably expected to create a genuine issue of material fact, (3) what effort affiant has
made to obtain them, and (4) why the affiant was unsuccessful in those efforts.” Miller, 321 F.3d
at 303. Here, Plaintiff has simply posited a need for further discovery in his memorandum
opposing partial summary judgment, but has not filed any affidavit or declaration as required by
Rule 56(d). This fact alone is sufficient to deny his request. Paddington Partners, 34 F.3d at 1137
(“A reference . . . to the need for additional discovery in a memorandum of law in opposition to a
motion for summary judgment is not an adequate substitute for a Rule [56(d)] affidavit, . . . and

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The Court is entitled to take judicial notice of copyright registrations as published in the Copyright Office’s registry.
Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 261 (2d Cir. 2005).

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the failure to file an affidavit under Rule [56(d)] is itself sufficient grounds to reject a claim.”
(citations omitted)).
But even if the Court were to overlook these procedural deficiencies, Defendant’s request
for further discovery would still be unjustified since it is totally conclusory. Plaintiff insists that
he needs additional discovery in order to uncover “any other exploitation of the Photograph by the
Defendant, not included in the Complaint . . . [and] any other revenue, profit, royalty, or benefit
derived from the exploitation of the Photograph.” (Mem. at 10.) But Plaintiff makes no effort to
specify what facts are sought or how they would create a genuine issue of material fact. Indeed,
Plaintiff’s 56.1 Counterstatement concedes that Defendant stopped selling the Album in February
2006 and disputes only the existence of “third party” sales in the downstream market, which, as
noted previously, cannot provide a basis for recovery. Mount, 555 F.2d at 1110. 7 As the Second
Circuit has made clear, “a bare assertion that the evidence supporting a plaintiff's allegation is in
the hands of the defendant is insufficient,” Alphonse Hotel Corp., 828 F.3d at 151 (quoting
Paddington Partners, 34 F.3d at 1138), for the straightforward reason that Rule 56(d) does not
permit Plaintiff to engage in a “‘fishing expedition’ in the hope that he could come up with some
tenable cause of action,” Waldron v. Cities Serv. Co., 361 F.2d 671, 673 (2d Cir. 1966), aff’d sub
nom. First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253 (1968)). Accordingly, Plaintiff’s
request for further discovery is denied.
IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that Defendant’s motion for
partial summary judgment is GRANTED. The Clerk of the Court is respectfully directed to

7

And to the extent there was any ambiguity in Defendant’s 56.1 Statement regarding the existence of “contracts with
third-party vendors” from which Defendant may have continued to derive revenue even after it stopped distributing
the Album, Defendant’s supplemental declaration makes clear that Sony earned no revenue from the Album from any
source after “July 2005.” (Doc. No. 26.)

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