The US Court of Appeals for the First Circuit affirmed a district court’s dismissal of a copyright lawsuit as time barred, finding that the separate accrual rule does not apply to continuing harm from a single infringing act. Foss v. Eastern States Exposition, Case No. 24-1360 (1st Cir. Aug. 21, 2025) (Montecalvo, Kayatta, Aframe, JJ.)
In 2016, Spencer Brewery commissioned graphic designer Cynthia Foss to create a room-sized artwork for its exhibition space at an annual fair hosted by Eastern States Exposition. Foss retained copyright ownership and specified that the installation be displayed exclusively in person to paying patrons of the fair. During the fair, Eastern produced a marketing video featuring Foss’s work without attribution. Foss applied for copyright registration on April 19, 2017, and it was subsequently granted.
In early 2018, Foss filed a copyright infringement lawsuit against Eastern, which the district court dismissed without prejudice. Rather than amending her initial complaint, Foss filed a second suit in July 2018, which was also dismissed without prejudice. In December 2020, she submitted an amended complaint, which was again dismissed. Foss appealed, and the First Circuit reversed and remanded the case, instructing the district court to determine whether the dismissal should have claim preclusive effect because of the prejudice caused to Eastern by Foss’s failure to meet the precondition to sue.
On remand, Eastern moved to dismiss, arguing that permitting Foss to proceed would be prejudicial and that the statute of limitations barred the suit. The district court agreed on both grounds. Foss appealed.
Foss contended that the district court misinterpreted when Eastern’s alleged violations ceased for purposes of the statute of limitations and misunderstood when she was legally permitted to seek relief.
The First Circuit affirmed the dismissal, concluding that the statute of limitations barred the claim.
Foss argued that the district court failed to apply the separate accrual rule, asserting that the infringing video constituted a continuing display until it was removed. Because Eastern had not established when the video was taken down, Foss claimed that the limitations period had not begun. The First Circuit rejected this argument and clarified that continuing harm from a single infringement does not equate to separately accruing acts. The Court explained that Foss’ contention (that Eastern’s posts remained infringing displays until they were removed) reflected a theory of continuing harm stemming from a single act of infringement, rather than a series of discrete violations that would trigger the separate accrual rule.
Foss further argued that her claims accrued only after she obtained copyright registration and could legally file suit. The First Circuit dismissed this argument, citing Supreme Court precedent that infringement claims accrue when the infringing act occurs, not upon registration or the ability to sue.
Accordingly, the First Circuit concluded that Foss’s December 2020 complaint was untimely and affirmed the district court’s dismissal.
