Addressing for the first time the issue of whether a plaintiff can amend a copyright infringement complaint to add additional facts and obviate a statutory limitations defense, the U.S. Court of Appeals for the Fifth Circuit reversed in part the district court’s judgment denying the plaintiff leave to amend the complaint.   Jaso v. The Coca Cola Co., Case Nos. 10-20786; -2423 (5th Cir., Aug. 1, 2011) (per curiam). 

Plaintiff Omar Jaso alleged that he composed a musical work entitled “El Juego.”   Jaso further alleged that in 1994, he learned that The Coca Cola Company was using the song “Always Coca-Cola” in an advertising campaign.  Jaso alleged that Coca Cola derived its advertising jingle from his song without his permission.  Plaintiff Jaso then sued Coca Cola and the advertising agency that created the advertisement for copyright infringement.   

The defendants moved to dismiss Jaso’s complaint, arguing that the plaintiff’s claim for copyright infringement was facially barred by the Copyright Act’s three-year statute of limitations.   Jaso’s claim should fail, the defendants argued, because Jaso was aware of his infringement claim in 1994 and Coca Cola stopped using the “Always Coca-Cola” song in its marketing efforts in 2000.  Plaintiff moved to amend his complaint to provide additional details concerning his claims.  To support their assertion that Coca Cola stopped using the “Always” song in 2000, the defendants provided the district court with a print-out of a webpage entitled “Highlights in the History of Coca-Cola Advertising” taken from the Library of Congress’s website, which stated that Coca Cola stopped using the song in 2000.  The defendants’ counsel also stated on the record that Coca Cola stopped using the song in 2000.  The district court ultimately dismissed Jaso’s complaint, finding it to be barred by the statute of limitations. 

On appeal, the 5th Circuit determined that the relevant test for dismissing a claim based on the statute of limitations defense is whether the plaintiff’s response to the defense is foreclosed by allegations made in the original complaint.   Accordingly, the court evaluated the allegations made in Jaso’s proposed amended complaint to determine whether it alleged infringement within the limitations period.  Because the plaintiff’s proposed amended complaint contained an allegation that the defendants distributed the allegedly infringing song “from 1994 to the present,” the court found that language sufficient to survive the defendants’ motion to dismiss, as it alleged that the defendants committed some act of copyright infringement within the limitations period.  In reversing the dismissal by the district court, the 5th Circuit declined to take judicial notice of the fact that Coca Cola stopped using the “Always” song in 2000 based on the print-out and statements made by counsel.