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IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

ALEXANDER BAYONNE STROSS :

Plaintiff, :

V. : Civil Case # 4:23-cv-00183

HOMESTEAD PROPERTIES INC DBA :

TINY TIMBERS
Defendant. :

MEMORANDUM OF LAW IN SUPPORT OF

MOTION DISMISS UNDER FEDERAL RULES 12(b)(1)

Defendant Homestead Properties, Inc. dba Tiny Timbers (hereinafter referred to as Tiny

Timbers), by counsel, respectfully submits this Memorandum of Law in support of its

Motion to Dismiss Plaintiff Alexander Bayonne Stross’ (hereinafter referred to Stross)

Complaint.

I. Introduction.

The Plaintiff Stross is an individual who claims to own a copyright on a “Work” entitled

“cv_240310_19.

Tiny Timbers is a dba for Homestead Properties, Inc. Homestead Properties was

incorporated under Indiana law on April 3, 1986, with a Business ID of 198604-109.

Homestead Properties has been continually active since 1986 and has done business as

Tiny Timbers.

Stross brought suit against Homestead Properties, Inc., dba Tiny Timbers, (Tiny

Timbers) for alleged violations of the United States Code under Title 17, Copyright law.

Stross is the party claiming subject-matter jurisdiction. As such he “has the burden of
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supporting the allegations of jurisdictional facts by competent proof,” Grafon Corp. v.

Hausermann, 602 F.2d 781, 783 (7th Cir. 1979), citing McNutt v. General Motors

Acceptance Corp., 298 U.S.U.178, 189 (1936). The Complaint was filed alleging in ¶1

violations of Stross’ exclusive copyright rights under §§106 and 1202 under Title 17. The

Complaint alleged Tiny Timbers violated his rights by distributing his claimed

copyrighted work in violation of §106. The Complaint further alleged that Tiny Timbers

removed copyright management information in violation of §1202. Stross based the

District Court subject-matter jurisdiction in §501 in ¶6.

In ¶1 of the Complaint Stross alleges he had exclusive rights of an “original

copyrighted Work of authorship. The only claimed “original copyrighted Work of

authorship” that Stross copied is found in ¶11 of the Complaint. ¶11 set forth a

photograph entitled “cv_2403310_10.” On the bottom right corner of the photograph is a

© and A3S watermark. ¶12 alleges the photograph was registered by the Copyright

Office on April 9, 2010. ¶13 alleges the photograph was protected by copyright. Hence

the © on the bottom right corner. ¶14 alleges the A3S watermark is Stross’ signature.

Stross alleges at ¶15 that at all relevant times he was the owner of the copyright.

Tiny Timbers maintains that Stross did not have exclusive copyright rights for the

“Work” set forth in the Complaint at ¶11. There are several reasons why Stross cannot

establish subject-matter jurisdiction.

II. Lack of Subject-matter Jurisdiction.

A. Failure to Meet Jurisdictional requirements of Tilte 17.

The subject-matter of the district is determined by the Constitution and statute. Article I,

Section 1, grants the Congress powers to legislate certain powers. Article I, Section 8,

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Clause 8 grants Congress the power to legislate Patents and copyright. Article III, Section

2, Clause 1, give the courts judicial power over all cases arising under the Constitution

and the laws of the United States.

Subject-matter jurisdiction of the district courts is determined under 28 U.S.C.

§1331, “The district courts shall have original jurisdiction of all civil actions arising

under the Constitution, laws, or treaties of the United States.” In addition, 28 U.S.C.

§1338(a) states, “The district courts shall have original jurisdiction of any civil action

arising under any Act of Congress relating to patents, plant variety protection, copyrights

and trademarks.” Thus, Stross has the burden of showing that his case falls under the

Constitution or any law passed by Congress. Stross has not met this burden.

In his attempt to meet subject-matter jurisdiction Stross alleges at ¶1 that the

action arises under the Copyright Act, specifically 17 U.S.C. §§106 and 1202. Stross

further alleges that the action arises specifically §501.

Despite these allegations §501(b) states,

The legal or beneficial owner of an exclusive right under a copyright is

entitled, subject to the requirements of section 411 [17 USCS § 411], to
institute an action for any infringement of that particular right committed
while he or she is the owner of it.

§411(a) provides,

Except for an action brought for a violation of the rights of the author
under section 106A(a), and subject to the provisions of subsection (b), no
civil action for infringement of the copyright in any United States work
shall be instituted until preregistration or registration of the copyright
claim has been made in accordance with this title.

§411(a) is a jurisdictional requirement. In other words, unless a plaintiff set forth proof of

a preregistration or registration of the copyright work he claims was violated, the District

Court has no subject-matter jurisdiction. The United States Supreme Court has confirmed

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this jurisdictional requirement in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595

U.S. 178, 211 L.Ed.2d 586, 590 (2022) (§411 is “a prerequisite for bringing a ‘civil

action for infringement’ of the copyrighted work. 17 U. S. C. §411(a).”

The focus of Stross’s Complaint is a “Work,” which is a photograph entitled

“cv_240310_19.” Stross further claims he created the photograph and it is registered on

April 9, 2010 and assigned a registration number “VAu 1-103-498.” A search of the

Copyright Office website reveals that “VAu 1-103-498, covers a period of time from

December, 2008 to April 1010. See https://cocatalog.loc.gov/cgi-

bin/Pwebrecon.cgi?v1=55&ti=51,55&Search%5FArg=Stross%20Alexander%20Bayonne

&Search%5FCode=NALL&CNT=25&PID=2x1azndcq0J1_YKiGZB06Xhcx9VVU&SE

Q=20240119185906&SID=1.

Plaintiff has not provided any registration of the photograph entitled

“cv_240310_19” being included in this series. Thus, Stross has not shown subject matter

jurisdiction.

B. Photograph Copyrighted Prior to April 9, 2010.

The reason why Stross did not produce a registration is clear. Stross did not have a

registration for the photograph.

Normally, the court must accept the well-pleaded allegations from the complaint

as true and draw all reasonable inferences in the plaintiff’s favor. Estate of Eiteljorg ex

rel. Eiteljorg v. Eiteljorg, 813 F. Supp. 2d 1069, 1073-74 (S.D. Ind. 2011) (citing

Franzoni v. Hartmarx Corp., 300 F.3d 767, 771 (7th Cir. 2002), for Rule 12(b)(1)

standard). But it is also true that “[w]hen considering a motion to dismiss under Rule

12(b)(1), the district court may properly look beyond the jurisdictional allegations of the

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complaint and view whatever evidence has been submitted on the issue to determine

whether in fact subject matter jurisdiction exists.” See Eiteljorg, supra, 813 F. Supp. 2d

at 1074 (quoting Capitol Leasing Co., v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993)). In

other words, when determining whether subject-matter jurisdiction exists, the court may

consider evidence beyond the jurisdictional allegations of a complaint. See St. John’s

Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2006).

¶25 of the Complaint alleges that Stross notified Tiny Timbers of the copyright

allegations. Stross did not attach the notifications/demand letters to the Complaint. Sherry

Chapo is the president of Homestead Properties, Inc. dba Tiny Timbers. In her

accompanying affidavit at ¶11 she labeled as Exhibit B the notifications/demand letters

asserted by Stross.

There are two aspects in the notifications/demand letters that stand out. First the

motivation sent to Tiny Timbers on October 15, 2021 does not contain the alleged

“Work” that is set forth in ¶11 of the Compliant. But what is contained in the

notification/demand letter is a copy of a photograph, which has neither © or the

watermark of A3S that is on the photograph at ¶11 of the Compliant.

Sherry Chapo asserts in her affidavit at ¶8 that she believes that the photograph

originated came from the blog https://micasaessusasa.tumblr.com/post/473098287/the-

city-view-residence-by-dick-clark-architecture (mi casa es su casa) showing a posted date

of March 25, 2010 (ton left column of page 2 of Exhibit A). Exhibit A has no copyright

indicators, but does have the identical photograph as the one in the notification/demand

letter (Exhibit B).

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What is most interesting is the photograph in the mi casa es su casa is underscored

with “The City View Residence by Dick Clark Architecture (via

cv_240310_19>>CONTEMPORIST). When the mouse is hovered over the underlined

section it reveals a link to the referring website for the photo,

http://www.comtemporist.com/2010/03/24the-city-view--residence-by-dick-clark-

architecture/cv_240310-19/.

This link shows a publish date of March 24, 2010 and credits Dick Clark

Architecture prior to April 9, 2010. The photograph was published on March 24, 2010 by

Contemporist and credit was given to Dick Clark Architecture. This address is now

defunct, but it show that there was a copyright for Dick Clark Architecture prior to April

9, 2010. This means that Stross’ claim of originality and having a copyright as of April 9,

2010 is belied by the previous existence of a copyright by Dick Clark Architecture. Thus,

Stross’ allegations in ¶¶13-15 are not supported by this publication.

C. Copyright Indicators Consistently Not Stross’s Copyright.

In addition to the photograph in mi casa es su casa (Exhibit B) Sherry Chapo has

uncovered numerous other photograph that show Dick Clark Architecture as having a

copyright. Sherry Chapo has listed these as:

Exhibit C at ¶15, from the website

https://karmatrendz.wordpress.com/2010/05/31/the-city-view-residence-by-dick-clark-

architecture/. The photograph appears at the bottom left of the second page of the Exhibit.

Credit is giver to Dick Clark Architecture and the date of publishing is May 5, 2010. Note

there is no © or A3S watermark on the photo.

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Exhibit D at ¶15, from the website

https://housevariety.blogspot.com/2010/12/city-view-residence-by-dick-clark-

architecture with a published date of December, 2010. Note there is no © or A3S

watermark on the photo.

Exhibit E at ¶17, from the Pinterist.com website. There does not appear to be a

date of publication. Also note there is no © or A3S watermark on the photo.

Exhibit F at ¶18, Stross published an article on February 22, 2017 on Linkedin.

The article is about the very photograph referenced in the lawsuit. In the article Stross

never claims he is the true copyright holder. He says “I recently found that a photograph

of mine was published on the cover of a book call IN GREEN!” He goes on to say:

“After doing extensive searches on the web I have discovered that 42 architects

willing participated in the creation of this book.” “Stross goes on to say:

“Interestingly, I was kind of given credit for my work. So was the architect.”

Exhibit G at ¶19, indicates that the book “in Green” was published on August 1,

2011.

All of these exhibits indicate that the photograph in the complaint was not one

that contained a © or an A3C watermark. None of them give any indication that Stross

was the owner of a copyright of the photograph in ¶11 of the Complaint. Most of them

credit Dick Clark Architecture for the photograph and many had a copyright for Dick

Clark Architecture indicated by a ©.

Perhaps the most damaging to Stross’ claim is the photograph in the mi casa es su

casa (Exhibit A). Stross claims at ¶11 of the Complaint that the “Work” he claims is

copyrighted was entitled “cv_240310_19” and copyrighted on April 9, 2010. But the mi

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casa es su casa exhibit indicates that “cv_240310_19” was published on March 24, 2010.

This is prior to the claim of a copyright on April 9, 2010. Stross has presented no

evidence that he is the owner of the copyright as opposed to Dick Clark Architecture.

All six of these publications clearly indicate that Stross was not the original owner

of the photograph, he did not have a copyright, and he had no A3S watermark on any of

the publications.

D. Photograph in Complaint Confirms No Infringement.

Stross alleged in his Complaint at ¶11 that the photograph is evidence of a copyright

owned by him. Yet this is the first time that © and an A3S watermark appear on his

alleged photograph. The fact that he notified Tiny Timbers with a photograph that

contained no © and no A3S watermark and then produced another photograph not

identical to the one in ¶11 makes it clear that Stross knew he was not the owner of a

copyright of the photo in ¶11.

All of the indications make it clear that Stross had no copyright rights in the ¶11

photograph. Accordingly, Stross’ Complaint lacks subject-matter jurisdiction and must be

dismissed under Rule 12(b)(1).

III. Complaint Filed Outside of Statute of Limitations Per §507(b).

Plaintiff Stross, at ¶18 of the Complaint, claims “On or about February 10, 2021, Stross

discovered the unauthorized use of his Work on the Website as one of the images shown

on the “Southern Bald Cypress” information page.”

If the complaint falls outside the statute of limitations the court is denied

jurisdiction. 17 U.S.C. § 507(b): "No civil action shall be maintained under the provisions

of this title unless it is commenced within three years after the claim accrued.”

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The 7th circuit uses the discovery rule regarding the statute of limitations for

copyright infringement. The statute of limitations will usually start when someone

discovers the copyright infringement. But the clock will begin when the person should

have reasonably discovered the copyright infringement if he or she had been diligent. In

other words, when the Plaintiff had constructive notice. See Chicago Bldg. Design v.

Mongolian House, Inc., 770 F. 3d 610, 614 (7th Cir. 2014) citing Gaiman v. McFarlane,

360 F.3d 644, 653 (7th Cir.2004); and Taylor v. Meirick, 712 F.2d 1112, 1117 (7th

Cir.1983).

Tiny Timbers posted the photograph for educational purposes back in July of

2019. See Exhibit A. And Stross admits in his complaint at ¶¶ 4, 18, 20, 21, 22 and

exhibit 2 that the picture was used for educational purposes. ¶18 says, “shown on the

“Southern Bald Cypress” information page.” With that said, however, Stross had over a

year and a half to discover the picture on the Tiny Timbers’ website; from July of 2019 to

February 2021 being over 18 months.

Exhibit F, which is the Linked article penned by Stross was published on

February 22, 2017. From this it appears that Stross was concerned that some of his work,

especially the “Work” in the Complaint was being published without his consent.

In addition, public record shows that the Stross has filed at more than 100

lawsuits since 2018 to the present. Meaning the Stross spends an inordinate amount of

time scouring the internet for pictures he claims to have been infringed upon. Stross

claims he discovered the infringement just 3 months before the statute of limitation had

run.

But, while the date he actually discovered the alleged infringement may be true,

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“constructive” discovery mitigates his claim. “Constructive” discovery refers to the date

on which…a reasonably diligent plaintiff should have discovered that the defendants

were violating its rights.”’ See Chicago Bldg. Design 770 F. 3d at 615.

As discussed above, on 2/22/2017 the Plaintiff penned an article in Linkedin

about the very photograph referenced in this lawsuit. See Exhibit F. This admittance

clearly points to the Stross’ active scouring of the internet for this photograph; affording

the Stross an ample amount of time to discover the alleged infringement by the Tiny

Timbers.

Tiny Timbers posted the photograph in July of 2019, see ¶9 of affidavit. Stross

was actively searching the internet from at least February 22, 2017. The number of filings

since 2018 indicate that Stross was actively seeking alleged infringements on the internet.

Stross claims to have discovered the alleged infringement on February 10, 2021, ¶18 of

Complaint. To actively seek that many infringements and then to wait until almost 4 and

a half years indicates that Stross was sleeping on his copyright rights. Since Stross was

diligent in his search from 2018 on the “constructive discovery would place him outside

of the three-year statute of limitations. Accordingly, this suit should be dismissed with

prejudice.

IV. Conclusion.

Tiny Timbers has shown that there are serious questions as to whether Stross actually

holds a copyright on the photograph in ¶11. In any event Stross has not provided proof of

a registration of the photograph entitled “cv_240310_19.” Without such proof the District

Court has no subject-matter jurisdiction. In addition, due to the constructive discovery

doctrine, Stross’ Complaint is beyond the three-year statute of limitations.

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Accordingly, the Complaint must be dismissed under Rule 12(b)(1).

Dated February 1 , 2024 Respectfully submitted,

s/ Charles E. McFarland
Charles E. McFarland
Ohio Bar # 0031808
Attorney at Law
338 Jackson Rd.
New Castle, Kentucky 40050
mcfarlandc@bellsouth.net
(502) 232-5084

CERTIFICATE OF SERVICE

The undersigned does hereby state that I filed the above Memorandum with the Clerk of

Courts the Court’s MC/ECF electronic filing system on February 1, 2024 and will be

distributed to the following shortly after its filing to the following through his e-mail

address:

Attorney for the Plaintiff – J. Campbell Miller, Campbell.miller@sriplaw.com

s/ Charles E. McFarland

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