LM6538_TRIAL BRIEF FINAL

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARKANSIPPI

)

DEVIN VASSAR, )

)

Plaintiff, )

) Case No. 16-CV-9013-ODW-JML

vs. )

)

MATT MCCARTER, CONRAD POLZ )

AND STAGE TWO RECORDS, LLC, )

)

Defendants. )

)

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendants McCarter, et al.

hereby move this Court to dismiss Plaintiff’s Complaint for failure to state a claim upon which relief may

be granted. Plaintiff’s complaint should be dismissed because none of the statements on which it relies in

its claims of violating the Copyright Act of 1976 (“Act”), 17 U.S.C. §§ 101-1332 (West 2010), are

actionable because Plaintiff does not have standing to bring suit under § 411(a) of the Act. Under the

requirements set forth in the Act, Plaintiff has not received notice of an affirmative action from the

Copyright Office regarding his application for registration, thus disallowing Plaintiff to bring a cause of

action for an alleged infringement by Defendants. In support of its motion, Defendants McCarter, et al.

file concurrently their Memorandum of Law in Support of its Motion to Dismiss.

STATEMENT OF FACTS

Defendants Matt McCarter and Conrad Polz are currently the frontmen for a Memphis-based

breakout musical act with the name of Avon Dale, performing alongside bandmates Andrew Allen and

Alec Heist. (Compl. ¶ 11.) Plaintiff is also currently an act in the regional music scene, performing with

his group Pedestrians On A Cliff (“Cliff”). (Compl. ¶ 13.)

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Over the years, Avon Dale and Cliff have toured extensively promoting themselves and their

music. (Compl. ¶ 11.) During this time, both bands only performed at the same venue on four distinct

occasions; firstly, at two concerts between November 2012 and February 2013 (Compl. ¶ 21.); secondly,

at a scouting show hosted by talent promoter Sarah Whitmer, in October 2012 (Compl. ¶¶ 19-20.); and

lastly, at a Memphis music festival in May 2013. (Compl. ¶ 24). As a result of this scouting show

performance, Avon Dale was quickly awarded a recording contract with co-Defendant Stage Two

Records, LLC (“STR”). (Compl. ¶ 20.) Plaintiff did not secure a recording contract as a result of this

performance; however, both Avon Dale and Plaintiff entered into management agreements with Redlight

Management, LLC contemporaneously. (Compl. ¶¶ 19-20.)

In keeping with the momentum generated by their new recording contract, Avon Dale released its

album, Dress It Up, on the STR label in January 2015. (Compl. ¶ 30.) Included on this album was the

song “Mila”, a composition Avon Dale had been performing at its live shows for two years prior to the

album’s release. (Id.) Due to the popularity of “Mila” with fans and the producers, it was chosen as the

first single to be released. (Id.)

The release of “Mila” saw Avon Dale’s popularity and presence reach a nation-wide audience.

(Compl. ¶¶ 23, 29-31.) Avon Dale has also garnered critical acclaim for its work with numerous industry

accolades and awards. (Compl. ¶ 31.) “Mila” has also peaked at number 50 on the Billboard charts, not

an insignificant feat for a first release. (Id.) Avon Dale has also been honored with a licensing agreement

with NBC TV for use of its recording in an upcoming show, Game of Silence. (Id.)

Plaintiffs filed a Complaint alleging copyright infringement with the United States District Court,

Sixteenth District, claiming that Avon Dale’s current hit single, “Mila”, infringes on Plaintiff’s alleged

copyright in Cliff’s song, “Rise and Shine” under 17 U.S.C. §§ 106 and 501. (Compl. ¶¶ 41-44.) This

Complaint has no standing before this Court under 17 U.S.C. § 411(a) as Plaintiff does not meet the

statutory requirements required of a party seeking relief for copyright infringement. Defendants therefore

file this brief in support of their Motion to Dismiss for Failure to State a Claim in accord with Federal

Rule of Civil Procedure 12(b)6.

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LEGAL ARGUMENT

The present case is one of first impression before this Court and at present, there is no controlling

authority from the Supreme Court regarding the exact requirements that must be met before a claimant

may bring a cause of action regarding alleged copyright infringement. Looking to the circuit courts

produces a split of opinion about those requirements.

Both the Tenth and Eleventh Circuits have held that registration is not completed solely by

submitting a copyright application; the Copyright Office must examine and register or deny the work in

question. These sister Courts found the statute unambiguous and opaque, with the plain language of the

Act mandating the predetermination of whether a work is copyrightable or not prior to a plaintiff bringing

forth an infringement action in federal court. See, La Resolana Architects, PA v. Clay Realtors Angel

Fire, 416 F.3d 1195 (10th Cir. 2005); see also M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d

1486 (11th Cir. 1990).

Furthermore, "registration" was held to be effectuated with only the Register's approval and not

necessarily the issuance or possession of a certificate, although a certificate had evidentiary value in an

infringement case. 416 F.3d at 1207-08. In La Resolana, the Copyright Office had actually approved the

registration but had not yet issued a certificate when the suit was filed. In the present case, Plaintiff has

not received any notification from the Copyright Office regarding his application for copyright. He has

no certificate of registration nor any notice of approval.

These holdings are not without detractors. The Fifth Circuit has held that "[i]n order to bring

suit for copyright infringement, it is not necessary to prove possession of a registration certificate. One

need only prove payment of the required fee, deposit of the work in question, and receipt by the

Copyright Office of a registration application."); Lakedreams v. Taylor, 932 F.2d 1103, 1108 (5th Cir.

1991) citing Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 386-87 (5th Cir. 1984) . Additionally, the

Seventh Circuit seems to concur with this sentiment. See Chicago Bd. of Educ. v. Substance, Inc., 354

F.3d 624, 631 (7th Cir. 2003) ("[A]n application for registration must be filed before the copyright can be

4

sued upon."). This rejection of the plain language in 17 U.S.C. §§ 411(a)-(b) is puzzling due to the above

discussed registration definition which is handily discernable with a plain meaning reading of the text.

When ruling on a Rule 12(b)(6) motion to dismiss, the Court must take the facts alleged in the

complaint as true and draw all reasonable inferences in favor of the plaintiff. Mosley v. Klincar, 947 F.2d

1338, 1339 (7th Cir. 1991). Factual allegations in the complaint must be sufficient to raise the possibility

of relief above a speculative level assuming that all of the allegations in the complaint are true. Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007). Detailed factual allegations are not required, but the

plaintiff must allege facts that state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556

U.S. 662, 679 (2009).

In the present case, Plaintiff readily admits it has not received a notice of approval from the

Copyright Office nor has its application for copyright been refused. Plaintiff therefore has no standing to

bring suit for copyright infringement under the Act. See 17 U.S.C. § 411(a). Defendants therefore ask for

this Court to adopt the holdings of the Tenth and Eleventh Circuits and hold that a cause of action for

copyright infringement may only be brought by a claimant who has either preregistered a copyright (an

action not applicable in the instant case), attained a valid registered copyright (complete with certificate of

registration or even simple notice of approval from the Copyright Office), or been refused an attempt at

registration of his work.

Congressional legislation must be interpreted by the courts by viewing the whole of the relevant

statute. See John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 114 S. Ct. 517, 523 (1993);

see also Pavelic & Leflore v. Marvel Entertainment Group, 493 U.S. 120, 123-24 (1989). Sections and

subsections are not to be construed in isolation from one another; the entirety of the statute must be

analyzed to best determine its meaning. See Smith v. United States, 508 U.S. 223, 233 (1993); see also

United Sav. Ass'n v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988).

In this instance, 17 U.S.C. § 106(1) provides the basis for an alleged infringement by enumerating

the various works that are applicable for copyright protection. 17 U.S.C. § 501(b) provides that “The

legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of

5

section 411, to institute an action for any infringement of that particular right committed while he or she

is the owner of it.”

(a) 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. In any

case, however, where the deposit, application, and fee required for registration have been

delivered to the Copyright Office in proper form and registration has been refused, the

applicant is entitled to institute a civil action for infringement . . .

(b) (1) A certificate of registration satisfies the requirements of this section . . .

17 USCS § 411(a)-(b) (emphasis added).

In looking at the statue as it is written as a whole and culminating in above section, this Court

should find that a cause of action may only be brought when an affirmative action by Copyright Office

has happened regarding a claimant’s application. Only then may relief from an alleged infringement be

sought.

I. THE PLAIN LANGUAGE OF THE COPYRIGHT ACT STATES THAT AN INFRINGEMENT

ACTION MAY ONLY BE BROUGHT ONCE THE COPYRIGHT OFFICE HAS TAKEN AN

AFFIRMATIVE ACTION REGARDING THE WORK APPLYING FOR COPYRIGHT

PROTECTION.

When the subject matter of interpretation is a federal statute like The Copyright Act, courts have

an abundance of tools available to help construe a statute. The common law has established a definite

sequence by which judges are to utilize them. The Supreme Court unmistakably directs courts to first

approach statutory interpretation rather mechanically by simply examining the text of the statute. "We

begin with the familiar canon of statutory construction that the starting point for interpreting a statute is

the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that

language must ordinarily be regarded as conclusive." Consumer Product Safety Commission et al. v. GTE

Sylvania, Inc. et al., 447 U.S. 102, 108 (1980). This mandate is commonly referred to as the "plain

meaning" rule and can be described as follows: "The meaning of a statute must, in the first instance, be

sought in the language in which the act is framed, and if that is plain, . . . the sole function of the courts is

to enforce it according to its terms." Caminetti v. United States, 242 U.S. 470, 485 (1917); see also Lake

6

County v. Rollins, 130 U.S. 662, 670 (1889) ("If the words convey a definite meaning, which involves no

absurdity, nor any contradiction of other parts of the instrument, then that meaning, apparent on the face

of the instrument, must be accepted, and neither the courts nor the legislature have the right to add to it or

take from it.").

With regard to the Act, the plain language of the statute encourages this Court to adopt the

position that a claimant may only bring suit for infringement once registration has been effectuated or

denied. See, e.g., La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195 (10th Cir.

2005); see also M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486 (11th Cir. 1990) The issue

before this Court is defining the boundaries of the claimant who wishes to bring suit for infringement in

the interim period between application and the ultimate determination of the status of the work in

question. From an examination of the process of registration and the clear distinction made between

application and the process of registration, infringement may only be addressed upon affirmative action

by the Copyright Office. The mere act of application does not suffice.

A. The process of registration is delineated in the Act, with registration deemed complete upon

receipt of either approval of registration or notice of refusal from the Copyright Office.

The term “registration” is not defined in the Copyright Act as to what the action of registration

itself actually entails. “"Registration", for purposes of sections 205(c)(2), 405, 406, 410(d), 411, 412, and

506(e), means a registration of a claim in the original or the renewed and extended term of copyright.” 17

U.S.C. § 101. However, the plain language of the rest of the Act is telling. Registration of a copyright

occurs only after the Copyright Office first determines the validity of an application.

When, after examination, the Register of Copyrights determines that, in accordance with

the provisions of this title, the material deposited constitutes copyrightable subject matter

and that the other legal and formal requirements of this title have been met, the Register

shall register the claim and issue to the applicant a certificate of registration under the

seal of the Copyright Office.

17 USC § 410(a).

7

In this section, Congress demonstrated that registration is not completed solely by submitting a

copyright application; the Copyright Office must examine and register the work in question. Id.

Furthermore, the statute is unambiguous and opaque, with the plain language of the Act mandating the

predetermination of whether a work is copyrightable or not prior to a plaintiff bringing forth an

infringement action in federal court.

Two United States Courts of Appeal and several district courts support the above reading of the

Act - that copyright "registration" is effectuated when the Copyright Office has affirmatively approved

the applicant's copyright. See, e.g., La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d

1195 (10th Cir. 2005); see also M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486 (11th Cir.

1990); see also Mays & Assocs., Inc. v. Euler, 370 F. Supp. 2d 362 (D. Md. 2005); see also Strategy

Source, Inc. v. Lee, 233 F. Supp. 2d 1 (D.D.C. 2002); see also Int'l Trade Mgmt., Inc. v. United States,

553 F. Supp. 402, 403 (Ct. Cl. 1982) ("A suit for copyright infringement is conditioned on obtaining (or

being denied) a certificate of registration.").

The Tenth Circuit held for this approach in La Resolana, 416 F.3d 1195, a case in which a group

of architects discovered that a competitor had sold homes that "looked strikingly similar" to those in

renderings previously produced by the architects. Id. at 1197. The group of architects applied for

copyright registration and sued for copyright infringement. Id. However, The District Court of the

District of New Mexico dismissed the action, because the firm had not yet received its registration

certificate. Id. at 1197-98. On appeal, the Tenth Circuit affirmed the dismissal. Id. at 1207. The court

held that registration of a copyright under § 411(a) occurs only when the Copyright Office approves the

application. Id. at 1203. In addition, mere notice of approval by the Copyright Office is sufficient to bring

a cause of action; actual delivery of the approval to the claimant of the registration is not required. Id. If a

party could file an infringement suit merely upon filing his application for registration, there would be no

need to include a provision stating that a suit can be maintained after the application is refused. A party

could simply file suit when he filed his application for registration and it would make no difference

whether the application was granted or refused in terms of satisfying the condition precedent.

8

The Eleventh Circuit addressed the issue in M.G.B. Homes, Inc. v. Ameron Homes, Inc. 903 F.2d

1486 (11th Cir. 1990). Plaintiff developer alleged that the defendant, a competitor, copied one of its floor

plans from one of the plaintiff's advertising brochures. 903 F2d at 1486. Although the plaintiff had filed

an application for copyright registration, the district court dismissed the initial case due to the plaintiff's

"failure to satisfy the condition precedent of having registered its copyright before initiating the

infringement action." Id. at 1488-89. The District Court for the Southern District of Florida allowed the

plaintiff to amend its complaint and proceed once the Copyright Office issued the certificate. Id. at 1489.

The Eleventh Circuit approved the district court's actions, noting that the registration requirement is a

prerequisite to an infringement suit, and generally equating "registration" with the issuance of a

certificate. Id. at 1488.

Both the Tenth and Eleventh Circuits looked to the text of the Act and found that application and

registration were two entirely distinct actions. Application was taken to be merely a step on the road to

registration and did not provide sufficient standing for a claimant to bring a cause of action for

infringement.

B. Read in its entirety, the Copyright Act makes a succinct distinction between application and

registration.

When considering the Copyright Act in its entirety, mere application for copyright does not

automatically confer registration upon the work. Pursuant to section 410(a) of the Act, “[w]hen, after

examination, the Register of Copyrights determines that . . . the material deposited constitutes

copyrightable subject . . . the Register shall register the claim and issue to the applicant a certificate of

registration under the seal of the Copyright Office.” 17 USC § 410(a).

Section 408(a) tells the US Copyright Office to first examine the application prior to issuing a

certificate of registration. Id. § 408(a). By implication, registration is not simply accomplished by the

preliminary submission application alone. See Cosmetic Ideas, Inc. v. IAC/InteractiveCorp, 606 F.3d 612

(9th Cir. 2010) (holding that Section 410(a) "places an active burden of examination and registration upon

the Register, suggesting that registration is not accomplished by application alone" (citing Loree Rodkin

9

Mgmt. v. Ross-Simmons, 315 F. Supp. 2d 1053, 1055 (C.D. Cal. 2004))). Moreover, section 410(b)

corroborates the distinction between application and registration.

In any case in which the Register of Copyrights determines that, in accordance with the

provisions of this title, the material deposited does not constitute copyrightable subject

matter or that the claim is invalid for any other reason, the Register shall refuse

registration and shall notify the applicant in writing of the reasons for such refusal.

17 USC § 410(b).

Both of these sections indicate a distinct difference between the acts of application and the subsequent

affirmative actions taken by the copyright office.

Furthermore, section 410(d) states

The effective date of a copyright registration is the day on which an application, deposit,

and fee, which are later determined by the Register of Copyrights or by a court of

competent jurisdiction to be acceptable for registration, have all been received . . . . "

17 U.S.C. § 410(d).

This section reads that "the effective date" is the date of receipt for the application. It follows that

registration occurs after the Register of Copyrights examines the application and subsequently "the

registration is backdated to the time the application was received." La Resolana, 416 F.3d at 1203. This

further bolsters the contention that application is not enough to allow for a claimant to pursue an

infringement action. Something more is needed. This something more is spoken of directly by Congress

in the background leading up to a crucial amending of the US Copyright Act in 1988, the Berne

Convention. See TreadmillDoctor.com, Inc. v. Johnson, 2011 U.S. Dist. LEXIS 34652, at *12.

If a party could file an infringement suit merely upon filing his application for registration, there

would be no need to include a provision stating that a suit can be maintained after the application is

refused. A party could simply file suit when he filed his application for registration and it would make no

difference whether the application was granted or refused. In adopting the rule that a cause of action for

infringement may only be brought upon registration (either via notice or issuance of a certificate of

registration), this Court will follow the plain meaning of the statute as written by Congress. Although not

10

necessary to reach that conclusion, the case disallowing mere application to suffice in an infringement

action is bolstered by looking to Congress’ intent when creating the statute in the first place.

II. IT WAS THE INTENTION OF CONGRESS TO ONLY ALLOW FOR AN INFRINGEMENT

ACTION TO PROCEED ONLY ONCE A COPYRIGHT APPLICATION HAD BEEN

REGISTERED OR REFUSED.

In addition to the overwhelming support for the above approach regarding when a claimant may

bring a cause of action for infringement, the meaning of the Act may be derived from an examination of

Congressional intent. By looking to this intent, this Court will carry out the will of the legislature. See

e.g. Sinclair Ref. Co. v. Atkinson, 370 U.S. 195, 215 (1962) ("Where congressional intent is discernible . .

. . [the Court] must give effect to that intent."); see also Johnson v. Southern Pacific Co. 196 U.S. 1

(1904).

In determining legislative intent courts turn to a variety of sources: the language of the statute

itself; the legislative history of prior enactments on a similar subject; the proceedings surrounding the

passage of the law, including debates and committee reports; and, if they are available, interpretations of

the law by administrative officials. In this instance, an examination of Congressional and Senatorial

records regarding the Copyright Act and the actual language of the statute give this Court reason to hold

that registration of a copyright is only effectuated upon affirmative action by the US Copyright Office

subsequent to an application for copyright protection, thus allowing for a claimant to pursue a cause of

action for infringement. See 17 U.S.C. §§ 410(a) and 411(a).

A. The Congressional Record indicates that application for copyright protection is not sufficient

for a claimant to bring suit for infringement in their discussions leading up to the

implementation of the Berne Convention into the Copyright Act.

The Copyright Act of 1976 was amended in 1988 by enacting the Berne Convention

Implementation Act. Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat.

2853. To comply with the Berne Convention, the Act exempts "certain foreign works from the

registration requirement . . . . " La Resolana Architects, 416 F.3d at 1205. In response, the Senate

attempted to eliminate registration formalities by entirely removing the registration statute from the Act,

11

which failed. 132 CONG. REC. 27,686 (1986) (introduced by Sen. Mathias). Disagreeing with this

attempt by the Senate, Congress opined "[t]he House would have preferred to make no change in section

411." 134 CONG. REC. 30,100, 30,105 (1988) (statement of Rep. Kastenmeier). Congress, however,

compromised by creating an exception for foreign works while leaving untouched the copyright

registration requirement for United States derived works. See Berne Convention Implementation Act of

1988, Pub. L. No. 100-568, 102 Stat. 2853.

Congress justified upholding within the Act the registration requirement over United States works

by expressly stating that "registration should be attempted and granted or denied by the Copyright Office

before suit for copyright infringement can be maintained." 134 CONG. REC. 30,100, 30,105 (1988)

(statement of Rep. Kastenmeier). The Senate echoed this requirement. "The fact remains that . . . a

review by the Register of Copyrights of the validity of a [copyright] claim is a necessary precondition for

enforcement of copyright protection . . . . " S. REP. NO. 100-352, at 14 & n.2 (1988). Congress intended

for the Register of Copyrights to have an active role in the issuance of copyright registration. This active

role is nullified if mere application for copyright is sufficient under the act to bring suit for infringement.

H.R. Rep. No. 94-1476. Both houses of the US Congress concurred in their intentions in the deliberations

leading up to adopting the Berne Convention into law; registration is effectuated by affirmative action on

the part of the US Copyright Office regarding the receipt of an application for copyright protection.

Again, application is simply a step in this process and does not lead to the ability to file a claim for

infringement.

B. The intent of Congress is expressed in the language of the US Copyright Act itself in its

requirements to be an action for infringement.

Congressional intent is no more apparent than their own words in the language of the statute

itself, which expressly requires the Copyright Office to first pass on the vitality of an application prior to

the initiation of an infringement action.

(a) 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

12

registration of the copyright claim has been made in accordance with this title. In any

case, however, where the deposit, application, and fee required for registration have been

delivered to the Copyright Office in proper form and registration has been refused, the

applicant is entitled to institute a civil action for infringement . . .

17 U.S.C. § 411(a)(emphasis added).

When implementing provisions of the Berne Convention, Congress did not remove the registration

requirement from the 1976 Copyright Act. Id. Congress left the registration requirement of section 411(a)

intact and, moreover, particularly amplified an expression of its intent behind section 410(a).

Congressional intent is blatantly on view; a claimant must have applied and then have his material

approved or rejected for copyright protection before any cause of action for infringement may be started.

III. MCCARTER, ET AL.’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

SHOULD BE GRANTED BY THE COURT BECAUSE THE REQUIREMENT FOR

SUCCESSFUL REGISTRATION EMBODIED IN THE COPYRIGHT ACT IS NOT MET,

THUS PRECLUDING PLAINTIFF FROM FILING SUIT FOR INFRINGEMENT.

This court should dismiss Plaintiff’s Complaint for failure to state a claim that is actionable under

the US Copyright Act as Plaintiff’s claim is not ripe. Plaintiff alleges that McCarter, Ponz, and Stage One

Records, LLC infringed on his copyright and prays to this Court for relief. (Compl. ¶¶ 41-44.) There is no

basis for their complaint. Plaintiff has not received notice of registration or notice of refusal from the

Register of Copyrights. (Compl. ¶ 41.) Additionally, this Court would subvert Congress’ intentions in

enacting the legislation within the Act.

A. The Copyright Office has not performed an affirmative action regarding Plaintiff’s attempt to

register his material for copyright.

The Act imposes an affirmative duty on the Register of Copyrights to first make a determination

and then "register the claim" or "refuse registration." See 17 U.S.C. § 410(a)-(b). This fact is the sine qua

non of registration because the capacity of "the Register's discretion to refuse copyright registration drives

an iron wedge between mere application and actual registration." La Resolana, 416 F. 3d at 1202 (quoting

Loree Rodkin Mgmt., 315 F. Supp. 2d at 1056). No implication exists in the plain language of the Act

reflecting that copyright registration occurs immediately upon the mere act of depositing an application

13

with the Copyright Office. Plaintiff only submitted application to the Register of Copyrights a full three

years after their composition was created, with no determination issued. (Compl. ¶¶ 15, 17.) The

Copyright Office must either approve the material submitted and subsequently register it, or deny

copyright in the material submitted. See Specific Software Sols., LLC v. Inst. Of WorkComp Advisors,

LLC, 615 F.Supp. 2d 708, 713 (M.D. Tenn. 2009) (“[I]f a party could file an infringement suit merely

upon filing his application for registration, there would be no need to include a provision [in the Act]

stating that suit could be maintained after the application is refused.”) The copyright office has not issued

any determination regarding Plaintiff’s application, therefore disallowing any cause of action for

infringement in the present case, following the lead of the Tenth and Eleventh Circuits’ holdings. See La

Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195 (10th Cir. 2005); see also M.G.B.

Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486 (11th Cir. 1990).

B. Holding for Plaintiff would send an unwelcome message to Congress regarding their

construction and intentions regarding the US Copyright Act.

Allowing for Plaintiff’s Complaint to proceed into litigation would give small credit to Congress's

drafting prowess. Had Congress intended an infringement action to be able to be instituted when the

Copyright Office received the appropriate application, fees, and deposit, it could have clearly written the

statute as such. Indeed, it did so when describing what to do when a registration was refused. See 17

U.S.C. 411(a) ("where the deposit, application, and fee required for registration have been delivered to the

Copyright Office in proper form and registration has been refused"). The process envisioned by Congress

seems clear: the Register will receive the materials, examine them, and then either register or refuse the

claim. Fewer definitional acrobatics are needed when § 411(a) is read under the approach Defendants

McCarter, et al. ask for this Court to apply to the instant case.

Congress has had multiple opportunities to amend the statute to eliminate or modify their

requirement for affirmative action by the Copyright Office, but has instead chosen to leave the substantive

language of § 411(a) intact.

14

If Congress found affirmative action by the Copyright Register prior to the institution of an

infringement suit to be a "needless formality," they could have eliminated it. Cosmetic Ideas, 606 F.3d at

620. To date, they have not. Instead, Congress has decided that in order for a U.S. copyright holder to

gain the benefit of copyright registration regarding a alleged cause of action for infringement, the holder

must observe defined formalities, one of which is the Register's approval or rejection of a registration

application. As Plaintiff has not received either, to allow for the present cause of action to proceed would

defeat this now long standing Congressional dictate.

CONCLUSION

For the foregoing reasons, this Court should grant Defendants’ Motion to Dismiss for Failure to

State a Claim.

________________________________

L.M. Student 6538

Attorney for Defendants

Levenson & Osario, LLC

1815 Gordon Street, Suite 614

Springcrest, AS 40538

915.867.2797

[email protected]

15

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been served upon opposing counsel by placing

same in the United States mail, postage prepaid, on April 24, 2016.

________________________________

L.M. Student 6538

Attorney for Defendants

Levenson & Osario, LLC

1815 Gordon Street, Suite 614

Springcrest, AS 40538

915.867.2797

[email protected]

16

TABLE OF AUTHORITIES

CASES

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................................................ 4

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) ............................................................................................... 4

Caminetti v. United States, 242 U.S. 470, 485 (1917) ............................................................................................... 5

Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al., 447 U.S. 102, 108 (1980) ...... 5

Cosmetic Ideas, Inc. v. IAC/InteractiveCorp, 606 F.3d 612 (9th Cir. 2010) ............................................. 8, 14

Int'l Trade Mgmt., Inc. v. United States, 553 F. Supp. 402, 403 (Ct. Cl. 1982) ................................................. 7

John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 114 S. Ct. 517, 523 (1993) .......................... 4

Johnson v. Southern Pacific Co. 196 U.S. 1 (1904) ................................................................................................... 10

La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195 (10th Cir. 2005)............... passim

Lake County v. Rollins, 130 U.S. 662, 670 (1889) ...................................................................................................... 5

Loree Rodkin Mgmt. v. Ross-Simmons, 315 F. Supp. 2d 1053, 1055 (C.D. Cal. 2004) ................................ 9

M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486 (11th Cir. 1990) .................................................. 7

Mays & Assocs., Inc. v. Euler, 370 F. Supp. 2d 362 (D. Md. 2005) ........................................................................ 7

Mosley v. Klincar, 947 F.2d 1338 (7th Cir. 1991) ...................................................................................................... 4

Pavelic & Leflore v. Marvel Entertainment Group, 493 U.S. 120, 123-24 (1989) ......................................... 4

Sinclair Ref. Co. v. Atkinson, 370 U.S. 195, 215 (1962) .......................................................................................... 10

Smith v. United States, 113 S. Ct. 2050, 2057 (1993) ............................................................................................... 4

Specific Software Sols., LLC v. Inst. Of WorkComp Advisors, LLC, 615 F.Supp. 2d 708, 713 (M.D.

Tenn. 2009) ......................................................................................................................................................................... 13

Strategy Source, Inc. v. Lee, 233 F. Supp. 2d 1 (D.D.C. 2002) ................................................................................ 7

TreadmillDoctor.com, Inc. v. Johnson, 2011 U.S. Dist. LEXIS 34652, at *12 .................................................... 9

United Sav. Ass'n v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988) ............................ 4

STATUTES

Berne Convention Implementation Act of 1988 ............................................................................................... 10, 11

Copyright Act of 1976, 17 U.S.C. §§ 101-1332 .................................................................................................. passim

OTHER AUTHORITIES

132 CONG. REC. 27,686 (1986) ....................................................................................................................................... 11

134 CONG. REC. 30,100, 30,105 (1988) ....................................................................................................................... 11

H.R. Rep. No. 94-1476 .......................................................................................................................................................... 11

S. REP. NO. 100-352, at 14 & n.2 (1988) ...................................................................................................................... 11

RULES

Fed.R.Civ.P. 12(b)6 .............................................................................................................................................................. 1, 2