UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Darcy Archer

v. Civil No. 09-cv-85-JD

Opinion No. 2009 DNH 134

Sue Methot, Gary Methot,

and Snowflake Inn

O R D E R

Darcy Archer sued Sue Methot, Gary Methot, and Snowflake

Inn, asserting copyright violations and breach of contract claims

based on the defendants’ use of Archer’s photographs on the

Snowflake Inn website and in other marketing materials. The

Methots and Snowflake Inn now move for judgment on the pleadings

with respect to Archer’s claim for statutory damages under 17

U.S.C. § 504(c), arguing that it is barred by 17 U.S.C. § 412.

Standard of Review

A motion for judgment on the pleadings is decided under the

same standard as a motion to dismiss. Curran v. Cousins, 509

F.3d 36, 43-44 (1st Cir. 2007). When considering a motion for

judgment on the pleadings, “the court must view the facts

contained in the pleadings in the light most favorable to the

nonmovant and draw all reasonable inferences therefrom.” R.G.

Case 1:09-cv-00085-JD Document 28 Filed 09/09/09 Page 1 of 6
1 The statute also provides for statutory damages up to

$30,000 if the copyright owner cannot satisfy his burden of

proving that the infringement was willful.

2

Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006). 

However, the nonmovant must assert “[f]actual allegations [that]

. . . raise a right to relief above the speculative level, on the

assumption that all the allegations in the complaint are true.” 

Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007); see also

Perez-Acevedo v. Rivera-Cubano, 520 F.3d 26, 29 (1st Cir. 2008).

Discussion

Archer’s claims for statutory damages arise under 17 U.S.C.

§ 504(c), which permits a copyright owner to elect to recover up

to $150,000 per copyrighted work where the infringement was

committed willfully.1 Section 504(c), however, is limited by 17

U.S.C. § 412, which states that

no award of statutory damages or attorney’s fees, as

provided by sections 504 and 505, shall be made for (1)

any infringement of copyright in an unpublished work

commenced before the effective date of its

registration; or (2) any infringement of copyright

commenced after first publication of the work and

before the effective date of its registration, unless

such registration is made within three months after the

first publication of the work.

Archer urges the court to interpret the statute as permitting

awards of statutory damages for infringement that occurs after

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2 Archer cites Derek Andrew, Inc. v. Poof Apparel Corp., No.

C05 1136 JPD, 2006 WL 3791371 (W.D. Wash. Dec. 22, 2006) for

support. Not only was that decision reversed, see Derek Andrew,

Inc. v. Poof Apparel Corp., 528 F.3d 696 (9th Cir. 2008), but the

lower court did not address the issue of continuing infringement,

nor did it even mention § 412.

3 In Beckwith, the plaintiff sought attorney’s fees, whereas

in this case the plaintiff is seeking statutory damages. Because

§ 412 governs both types of awards, the analysis is the same.

3

registration (plus the three-month grace period, where

applicable) when that infringement is merely a continuation of an

infringement that commenced before registration. Archer fails to

identify a single case that supports her interpretation. Indeed,

a review of the case law reveals that every court that has

considered the issue has adopted the opposite interpretation.2

See, e.g., Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696

(9th Cir. 2008); Bouchat v. Bon-Ton Dep’t Stores, Inc., 506 F.3d

315, 330 (4th Cir. 2007); Johnson v. Jones, 149 F.3d 494, 505

(6th Cir. 1998); Parfums Givenchy, Inc. v. C & C Beauty Sales,

Inc. 832 F. Supp. 1378, 1394 (C.D. Cal. 1993); Whelan Assocs.,

Inc. v. Jaslow Dental Lab., Inc., 609 F. Supp. 1325, 1331 (E.D.

Pa. 1985). Although it is not controlling, Beckwith Builders,

Inc. v. Dipietri, No. 04 CV 282 SM, 2006 WL 2645188 (D.N.H. Sept.

15, 2006), is on point and provides persuasive guidance here.3

In Beckwith, the defendants allegedly infringed three

copyrights in a custom-designed and built home by building a

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4

duplicate home using the plaintiff’s schematics and technical

drawings. 2006 WL 2645188 at *1-2. Two of the three works were

considered published “no later than January 15, 2000,” while the

third was unpublished. Id. at *12. The plaintiff alleged that

the infringement began in 2003, while all three copyrights had an

effective registration date of November 15, 2004. Id. Because

the infringement commenced before the effective date of

registration of the unpublished work, the court held that 17

U.S.C. § 412(1) barred any recovery for that work under § 505. 

Id. Furthermore, because the infringement of the two published

works commenced after their first publication but before their

effective date of registration, § 412(2) also barred recovery for

those works under § 505. Id. In other words, regardless of the

fact that the infringement continued beyond November 15, 2004,

the plaintiff could not recover under § 505.

In this case, Archer alleges nine instances of willful

infringement: the display of nine of her photographs on the

defendants’ website, which occurred in January 2008. See First

Amended Complaint ¶ 16-17. Archer concedes, however, that the

effective date of the registration of the copyright for the

photographs is December 26, 2008. See First Amended Complaint,

Exh. C. Under § 412, therefore, she cannot recover statutory

damages because the effective date of registration was

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4 The defendants suggest that the nine photographs in

question were published in January 2008, when they posted them on

their website, and therefore § 412(2) applies in this case. See

Motion for Judgment on the Pleadings With Respect to Plaintiff’s

Claim for Statutory Damages, p. 3. Plaintiff does not dispute

this. Because that subsection offers the three-month grace

period and is therefore more favorable to the plaintiff, and

because both subsections would yield the same result, the court

accepts that § 412(2) applies here.

5 Speculation about other instances of infringement is

particularly inappropriate given the possibility that another act

might not be “separate infringement” for purposes of § 412, but

rather merely one act in “a series of acts constituting

continuing infringement,” which began in January 2008. Johnson

v. Jones, 149 F.3d 494, 506 (6th Cir. 1998); see also Parfums

Givenchy, Inc. v. C & C Beauty Sales, Inc., 832 F. Supp. 1378,

1393 (C.D. Cal. 1993) (“A ‘new’ or ‘separate’ basis for the award

of statutory damages is created only where there is a difference

between pre- and post-registration infringing activities.”)

(citations omitted).

5

approximately 11 months after the commencement of the

infringement.4

Although Archer cannot recover statutory damages for the

alleged infringement that commenced in January 2008, she suggests

that discovery may reveal separate instances of infringement that

would satisfy the requirements of § 412. Archer has not alleged

any other infringement by the defendants, and therefore she

cannot avoid judgment on the pleadings as to her claim for

statutory damages.5

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6

Conclusion

For the foregoing reasons, the defendants’ motion for

judgment on the pleadings with respect to plaintiff’s claim for

statutory damages (document no. 23) is granted.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

September 9, 2009

cc: Charles G. Holoubek, Esquire

Donald L. Smith, Esquire

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