“Registration Does Not Delay Accrual”
Foss v. Eastern States Exposition (1st Cir. 2025) and the Statute-of-Limitations Clock in Copyright Litigation

1. Introduction

Cynthia Alyson Foss, a Massachusetts graphic designer, created a room-sized photorealistic installation for Spencer Brewery’s booth at the 2016 “Big E” fair operated by Eastern States Exposition (“Eastern”). Videos of the installation were later posted on Eastern’s social-media platforms without attribution, prompting Foss to file a series of pro se lawsuits that were dismissed on procedural grounds. In December 2020—now with counsel—she filed a third federal action alleging copyright infringement and violations of the Visual Artists Rights Act. The District Court dismissed the case as precluded and, in the alternative, untimely. The First Circuit’s present opinion affirms solely on the statute-of-limitations ground, thereby cementing a new, clear rule: the three-year limitation period of 17 U.S.C. §507(b) begins when an infringing act occurs (or is discovered), and §411(a)’s registration prerequisite does not postpone that accrual.

2. Summary of the Judgment

• The Court affirmed dismissal under Rule 12(b)(6) because Foss’s copyright claim was filed more than three years after she knew or should have known of Eastern’s allegedly infringing conduct (spring 2017 at the latest).
• Arguments that the separate-accrual rule re-started the clock each day the videos remained online were deemed waived.
• The Court rejected the contention that accrual is deferred until the Copyright Office registers the work under §411(a).
• Equitable tolling was unavailable; delays in registration or in Foss’s earlier pleadings were within her control.
• Because untimeliness sufficed, the panel declined to revisit claim-preclusion issues remanded in an earlier appeal.

3. Analytical Commentary

3.1 Precedents Cited

1. Petrella v. MGM, 572 U.S. 663 (2014)
   • Established that §507(b)’s three-year limitation runs from each “discrete infringing act.”
2. Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, 586 U.S. 296 (2019)
   • Held that a plaintiff may sue only after the Copyright Office registers or refuses registration, but may recover for pre-registration infringements.
   • First Circuit uses Fourth Estate to underscore that registration is a prerequisite to filing, not an element of accrual.
3. Green v. Brennan, 578 U.S. 547 (2016) & Corner Post v. Federal Reserve, 603 U.S. 799 (2024)
   • Quoted for the generic rule that limitations begin when “plaintiff can file suit,” a phrase Foss tried to leverage. The panel clarifies that a plaintiff can file once registration is granted, but that fact does not alter when the claim accrues.
4. Bay Area Laundry & Dry Cleaning Pension Trust v. Ferbar Corp., 522 U.S. 192 (1997)
   • Source of the “can file suit and obtain relief” language.
5. Restatement (Second) of Judgments §20 cmt. e (alternative-determinations doctrine)
   • Adopted in the First Circuit’s 2023 opinion in this same litigation (Foss v. Eastern, 67 F.4th 462). Though pivotal earlier, the doctrine is now eclipsed by the limitations ruling.

3.2 Legal Reasoning of the Court

a. Accrual Rule Re-affirmed. Relying chiefly on Petrella, the panel reiterates that a claim accrues when the infringing act occurs (or, in the First Circuit, when it is discovered, per the discovery rule). Foss’s pleadings—and her earlier complaints of 2018 and 2019, which are judicially noticeable—show she knew of the offending posts by early 2017. Therefore, accrual occurred well before December 4, 2017, the cut-off for a timely action.

b. Registration Irrelevant to Accrual. Foss’s core innovation was to equate “ability to sue” with “accrual,” arguing that §411(a) barred suit until the Copyright Office registered her work. The Court rejects that syllogism for doctrinal and policy reasons:

• Fourth Estate distinguished between filing prerequisites and accrual; Plaintiffs may recover for pre-registration infringements, so the statute assumes those claims have already accrued.
• Allowing accrual to await registration would let plaintiffs extend their limitation periods by simply delaying their application—contrary to the very purpose of limitation statutes.
• No precedent supports reading §411(a) as an accrual-stalling provision.

c. Separate-Accrual Argument Waived. Although daily displays on the Internet could theoretically create successive infringements, Foss never presented a fully developed version of that theory below or in her opening brief. The panel enforces ordinary waiver and leaves the merits of “per-day display” accrual for another day.

d. Equitable Tolling Denied. Equitable tolling in the First Circuit requires exceptional circumstances beyond the plaintiff’s control. Here, any registration delay was unquantified; moreover, Foss’s own serial mis-pleadings caused the procedural oscillation, undermining a diligence showing. The panel finds no abuse of discretion.

3.3 Likely Impact of the Decision

1. Limitation Clarity in the First Circuit.
   After Fourth Estate, litigants occasionally argued that claim accrual is tied to registration. The First Circuit now expressly forecloses that position, aligning itself with the majority rule and offering litigants a bright-line: file within three years of infringement (or discovery) regardless of registration date.
2. Strategic Filing Practices.
   Plaintiffs must act promptly: (1) apply for registration quickly (preferably pre-publication), and (2) file suit once registration issues but without assuming extra time has been gained.
3. Judicial Notice of Prior Pleadings.
   The opinion endorses district courts’ use of prior complaints—especially from the same litigation saga—to establish dates on a Rule 12(b)(6) motion.
4. Waiver Enforcement.
   By refusing to entertain the newly minted “daily display” theory, the panel reinforces the First Circuit’s insistence on developed briefing. Advocates must raise separate-accrual contentions early and fully.
5. Narrowing Alternative-Determinations Doctrine.
   Though the First Circuit adopted the doctrine in the earlier appeal, this opinion demonstrates that practical defenses (limitations) can moot its application. Future litigants may focus less on claim-preclusion niceties when a clean limitations defense is available.

4. Complex Concepts Simplified

• §411(a) Registration Prerequisite – A plaintiff must plead that the Copyright Office has granted or refused registration, but the infringement may have happened earlier; registration is not an element of infringement itself.
• Accrual vs. Filing – “Accrual” marks when the right to sue arises; “filing” is the procedural act of starting the lawsuit. Accrual triggers limitations; filing triggers litigation.
• Separate-Accrual Rule – Each discrete infringement (e.g., a new unauthorized sale) restarts the three-year window for that act only; past acts outside three years are time-barred.
• Claim Preclusion (Res Judicata) – Bars re-litigation of claims that were or could have been raised in a prior final judgment. The First Circuit recognizes an exception (alternative-determinations doctrine) where the earlier dismissal rested on dual grounds, one of which would not itself be preclusive.
• Equitable Tolling – A rare judicial permission to pause the limitations clock when extraordinary events—beyond plaintiff’s control—prevent timely filing; mere neglect or misunderstanding is insufficient.

5. Conclusion

Foss v. Eastern States Exposition delivers a crisp holding: the three-year statute of limitations under §507(b) for copyright infringement begins when infringement occurs or is discovered, not when the Copyright Office registers the work. The First Circuit reinforces diligent registration practice, discourages serial, procedurally deficient filings, and signals that equitable doctrines will not salvage claims where plaintiffs have slept on their rights. For practitioners, the takeaway is practical and urgent—register early, diary the three-year period strictly, and present all accrual theories upfront.