McClatchy Company, The v. Ebsco Information Services Inc

           UNITED STATES DISTRICT COURT                              
          NORTHERN DISTRICT OF ALABAMA                               
                 SOUTHERN DIVISION                                   

THE MCCLATCHY COMPANY,        )                                           
LLC, et al.                   )                                           
                         )                                           
Plaintiffs,              )                                           
                         )                                           
v.                            ) Civil Action No. 2:24-cv-1076-ACA         
                         )                                           
EBSCO INFORMATION             )                                           
SERVICES, INC, et al.,        )                                           
                         )                                           
Defendants.              )                                           

         MEMORANDUM OPINION AND ORDER                                

Plaintiffs The McClatchy Company, LLC, Gannett Co. Inc., and Jeffery B. 
Grantham bring claims against Defendant EBSCO Industries, Inc. for violations of 
the Copyright Act, 

17 U.S.C. § 501

(a), arising out of EBSCO’s actions in 1995. 
(Doc. 2). EBSCO moves to dismiss, arguing that Plaintiffs’ claims are barred by the 
Copyright Act’s three-year statute of limitations for civil claims. (Doc. 11); 

17 U.S.C. § 507

(b). Because it is not clear from the face of Plaintiffs’ complaint that 
their claims are barred by the statute of limitations, the court DENIES EBSCO’s 
motion to dismiss. (Doc. 11).  And because EBSCO has not shown  substantial 
grounds for differences of opinion on this question, the court DENIES EBSCO’s 
request that the court certify this question for interlocutory appeal under 

28 U.S.C. § 1292

(b). (Id. at 6–8).                                                  
I.   BACKGROUND                                                      
At this stage, the court must accept as true the factual allegations in the 

complaint and construe them in the light most favorable to the plaintiff. Butler v. 
Sheriff of Palm Beach Cnty., 

685 F.3d 1261, 1265

 (11th Cir. 2012).        
Each plaintiff owned a newspaper that covered the Kansas State University 

football team in 1993 and 1994. (Doc. 2 ¶¶ 1–3, 8, 10). They registered copyrights 
for their photographs and newspapers covering the team during those seasons. (Id. 
¶¶ 11–12). In 1994, Plaintiffs entered into an agreement with Michael Bynum and 
his company, Gridiron Football Properties Corp., granting Mr. Bynum and Gridiron 

permission  to  use  Plaintiffs’  copyrighted  materials  in  a  book.  (Id.  ¶¶  8,  13). 
Mr. Bynum intended to publish the book under his pen name Francis J. Fitzgerald. 
(Id. ¶ 15).                                                               

Mr. Bynum met with a representative of EBSCO to discuss printing the book, 
and he provided EBSCO with the materials necessary to print. (Doc. 2 ¶ 14). But 
Mr. Bynum decided to defer publishing the book after he received quotes from 
EBSCO.  (Id.  ¶  18).  Mr.  Bynum  retrieved  the  materials  from  EBSCO  without 

granting it permission to print and publish them. (Id. ¶ 19). And Mr. Bynum never 
printed or published the proposed book. (Id.).                            
In 2020, Mr. Bynum discovered a copy of his proposed book for sale in an 

online bookstore. (Doc. 2 ¶ 20). EBSCO Media printed the book under the title The 
Glory of Purple; A Scrapbook History of the Kansas State Wildcats’ Memorable 
1993 and 1994 Seasons. (Id.). According to The Glory of Purple’s initial pages, 

EBSCO credited Francis J. Fitzgerald as the book’s editor and Touchdown Books as 
the  publisher  and  “copyright-holder.”  (Id.  ¶¶  20,  25).  The  book  includes  the 
copyrighted materials that Plaintiffs had licensed to Mr. Bynum and Gridiron. (Id. 

¶ 20).                                                                    
Between August 12, 2021 and March 2023, Mr. Bynum notified Plaintiffs of 
the existence of The Glory of Purple. (Doc. 2 ¶¶ 32–34). Plaintiffs filed this action 
on August 7, 2024. (Doc. 1).                                              

II.  DISCUSSION                                                      
EBSCO contends Plaintiffs’ claims are barred by the statute of limitations and 
therefore due to be dismissed under Federal Rule of Civil Procedure 12(b)(6). (Doc. 

11).  “[D]ismissal  on  statute-of-limitations  grounds  is  proper  only  where  it  is 
apparent from the face of the complaint that the claim is time-barred.” Wainberg v. 
Mellichamp, 

93 F.4th 1221

, 1224 (11th Cir. 2024) (quotation marks omitted). 
Civil claims under the Copyright Act must be brought “within three years after 

the claim accrued.” 

17 U.S.C. § 507

(b). The Eleventh Circuit has two rules for 
determining when a copyright claim accrues: “the discovery rule and the injury 
rule.” Nealy v. Warner Chappell Music, Inc., 

60 F.4th 1325, 1330

 (11th Cir. 2023), 

aff’d on other grounds, 

601 U.S. 366

 (2024). The discovery rule provides that a 
copyright claim accrues “when the plaintiff learns, or should as a reasonable person 
have learned, that the defendant was violating his ownership rights.” Id. Under the 

injury rule, a copyright claim accrues upon “each infringing act.” Webster v. Dean 
Guitars, 

955 F.3d 1270, 1276

 (11th Cir. 2020).                            
Courts apply the discovery rule when the “gravamen” of a copyright claim is 

that the defendant violated the plaintiff’s “ownership rights.” Nealy, 

60 F.4th at 1330

. In other words, the discovery rule applies “if ownership of the copyright is the 
only disputed issue.” 

Id.

 For other, “ordinary,” copyright claims, which are those not 
“concerning mainly ownership,” the injury rule applies. Webster, 

955 F.3d at 1276

. 

EBSCO argues that the court should apply the injury rule in this case because 
its “primary factual defense” is not related to ownership and is instead related to 
permission. (Doc. 11 at 5–6). But EBSCO’s primary factual defense is not “apparent 

from the face of the complaint,” and the court may not consider it at this stage. 
Wainberg, 93 F.4th at 1224; see also Isaiah v. JPMorgan Chase Bank, 

960 F.3d 1296, 1304

  (11th  Cir.  2020)  (“A  complaint  need  not  anticipate  and  negate 
affirmative defenses and should not ordinarily be dismissed based on an affirmative 

defense unless the defense is apparent on the face of the complaint.”). Furthermore, 
Plaintiffs’ complaint includes facts that lead to the conclusion that ownership may 
be the gravamen of Plaintiffs’ claims. For example, Plaintiffs allege that The Glory 

of Purple’s permissions page falsely lists “Touchdown Books as the copyright-
holder” even though Plaintiffs hold the copyrights to material contained in the book. 
(Doc. 2 ¶¶ 11–13, 20, 25). Given this allegation, Plaintiffs’ claims may be that they, 

rather  than  Touchdown  Books  or  any  third  party,  are  the  true  owners  of  the 
copyrighted material and they alone could give permission to use their copyrighted 
materials. Such a claim would mainly concern ownership, and the court would 

necessarily apply the discovery rule. See Webster, 

955 F.3d at 1276

.      
Applying the discovery rule, the claims accrued when Plaintiffs learned or 
reasonably should have learned of the infringing act. Nealy, 

60 F.4th at 1330

. Based 
on the facts alleged in the complaint, Plaintiffs learned of the infringing acts between 

August 12, 2021 and March 2023. (Doc. 2 ¶¶ 32–34). EBSCO does not make any 
argument that the Plaintiffs should have learned at a time before they actually learned 
about The Glory of Purple. (See generally doc. 11). Accordingly, the earliest the 

statute of limitations could have run for these claims was August 12, 2024. See 

17 U.S.C. § 507

(b). Plaintiffs filed this action within that time.        
Because the  court cannot  rely  on EBSCO’s  primary factual defense  and 
Plaintiffs’ claims may be categorized as ownership claims, it is not apparent from 

the face of the complaint that Plaintiffs’ claims are time barred, and the court 
DENIES EBSCO’s motion to dismiss.                                         
EBSCO asks that if the court denies its motion to dismiss, the court certify the 

question for interlocutory appeal under 

28 U.S.C. § 1292

(b). (Doc. 11 at 6–8). That 
section grants the court discretion to permit an appeal of its order if the court believes 
its order “involves a controlling question of law as to which there is substantial 

ground for difference of opinion and that an immediate appeal from the order may 
materially advance the ultimate termination of the litigation.” 

28 U.S.C. § 1292

(b).  
EBSCO argues that interlocutory appeal is appropriate because three United 

States Supreme Court justices signed on to a dissenting opinion that “expressed 
doubt” about whether § 507(b) authorizes the use of the discovery rule. (Doc. 11 at 
6–7) (citing Warner Chappell Music, Inc. v. Nealy, 

601 U.S. 366

, 374–75 (2024) 
(Gorsuch, J., dissenting)). But the Eleventh Circuit has repeatedly affirmed district 

courts’ applications of the discovery rule in cases involving § 507(b). See Nealy, 60 
F.4th at 1330–31; Webster, 

955 F.3d at 1276

. Given that this court’s order is in 
compliance with binding Eleventh Circuit precedent, EBSCO has not shown that 

there are substantial grounds for differences of opinion on this question. See Burrell 
v. Bd. of Trs. of Ga. Mil. Coll., 

970 F.2d 785, 789

 (11th Cir. 1992) abrogated on 
other grounds by Ziglar v. Abbasi, 

582 U.S. 120, 155

 (2017) (“[O]ur agreement with 
the district court is so complete and unequivocal that we cannot make out the 

substantial  ground  for  difference  of  opinion  required  by  section  1292(b).”) 
(quotation marks omitted). Accordingly, the court DENIES EBSCO’s request that 
the court certify the question for interlocutory appeal.                  
 HI.   CONCLUSION 
 The  court  DENIES  EBSCO’s  motion  to  dismiss  and  DENIES  EBSCO’s 
request for certification of the question for appeal. (Doc.  11). 
 DONE and ORDERED this May 28, 2025. 

                            ANNEMARIE CARNEY AXON 
                            UNITED STATES DISTRICT JUDGE