Opinion
No. 03 Civ. 4333 (RJH) (DF).
February 25, 2005
MEMORANDUM OPINION AND ORDER
Pro se plaintiff James Anthony Greene ("Greene") brought this action pursuant to 17 U.S.C. § 501 (the "Copyright Act"), alleging that defendant Columbia Records/Sony Music Entertainment Inc. ("Sony") unlawfully infringed a copyright on one of his musical compositions without his consent. Defendant now moves to dismiss plaintiff's Amended Complaint for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. In the alternative, defendant moves to strike certain allegations in the Amended Complaint, pursuant to Rule 12(f). For the reasons set forth below, the Court dismisses plaintiff's Amended Complaint in its entirety.
BACKGROUND
The following facts contained in Greene's Amended Complaint are accepted as true for the purpose of ruling upon defendant's 12(b)(1) motion. In 1998, defendant released an album entitled "Make It Reign," by artists Lord Tariq and Peter Gunz. (Pl.'s Am. Compl. at 2.) Plaintiff alleges that his original music composition appeared on the album as track 17, a segment entitled "Precipitation Interlude." (Pl.'s Am. Compl. at 2.) Plaintiff asserts that he did not authorize the use of his work on the album, nor did he receive compensation for its use. (Pl.'s Am. Compl. at 1-2.)
On June 13, 2003, plaintiff brought this action in the Southern District of New York alleging that defendant had unlawfully infringed a copyright on his composition without his consent. An affidavit of service on defendant was timely filed on July 10, 2003, but defendant did not answer or otherwise defend within the time prescribed by Rule 12(a) of the Federal Rules of Civil Procedure. As activity in the case appeared to lull, the Court issued an Order dated November 21, 2003, directing plaintiff to prosecute the action or else face dismissal.
Plaintiff subsequently submitted an application for default judgment to this Court against Sony in the amount of $150,000 plus costs. The request, which was accompanied by the Clerk of Court's entry of default dated December 19, 2003, complied in all respects with the formal requirements of Fed.R.Civ.P. 55(b)(2) and Local Civil Rule 55.2(b) of the Southern District of New York. This Court did not enter judgment, but by Order dated February 20, 2004, referred the matter to Magistrate Judge Debra Freeman for a damages inquest.
Magistrate Judge Freeman, by an unpublished order dated March 24, 2004, directed the parties to submit memoranda and supporting evidence regarding plaintiff's claimed damages and set a schedule for those submissions. Plaintiff failed to submit evidence, timely or otherwise, as required by Magistrate Judge Freeman's order. On May 26, 2004, the date by which its submission was due, defendant moved to vacate the entry of default and to dismiss the action for lack of subject matter jurisdiction. Alternatively, defendant sought to reopen the case for a decision on the merits.
In its motion to dismiss, defendant argued that plaintiff had not alleged in his complaint that he had registered a copyright for the allegedly infringed musical composition, a prerequisite to an action for federal copyright infringement. This Court, by Order dated June 7, 2004, granted defendant's motion to vacate the Clerk's entry of default judgment based on this lack of subject matter jurisdiction. However, the Court denied defendant's motion to dismiss without prejudice and granted plaintiff sixty days to file and serve an amended complaint that alleged the necessary elements of a federal cause of action. That Order specifically explained that this Court could not exercise subject matter jurisdiction over plaintiff's complaint absent allegations that he had received either an actual certificate of registration or denial from the Copyright Office.
On July 19, 2004, plaintiff filed and served a Summons and an Amended Complaint. The Amended Complaint asserts that plaintiff is "waiting for copyright registrations." (Pl.'s Am. Compl. at 5.) Attached to the Amended Complaint is a receipt, dated June 14, 2004, for plaintiff's attempted registration of two musical compositions entitled "Overdose" and "The Box." (Pl.'s Ex. 2.) In his affidavit submitted in opposition to defendant's motion to dismiss, plaintiff alleges that "Overdose" is the same musical work as "Precipitation Interlude," the composition allegedly infringed by defendant. (Pl.'s Aff. in Opp'n 2.) The receipt indicates that the Copyright Office has received plaintiff's performing arts application form, application fee, and one deposit copy of each of the compositions to be registered. (Pl.'s Ex. 2.)
DISCUSSION
1. The 12(b)(1) Motion to Dismiss StandardThe Court accepts as true all factual allegations contained in the Amended Complaint and draws all reasonable inferences in favor of the plaintiff, as it is bound to do when a complaint is challenged for lack of subject matter jurisdiction under Rule 12(b)(1). See Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003). Moreover, since Greene is proceeding pro se, the Court is obligated to construe his pleadings liberally and interpret them to raise the strongest arguments that they suggest. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, the plaintiff still has the burden of showing by a preponderance of the evidence that subject matter jurisdiction exists. See Lunney, 319 F.3d at 554.
II. Subject Matter Jurisdiction
A district court may exercise subject matter jurisdiction if the action "arises under" federal law. Bracey v. Bd. of Educ. of City of Bridgeport, 368 F.3d 108, 113 (2d Cir. 2004) (citing 28 U.S.C. § 1331). An action "arises under" federal law if "in order for the plaintiff to secure the relief sought he will be obliged to establish both the correctness and the applicability to his case of a proposition of federal law." Id. at 114 (citations omitted). In the absence of diversity jurisdiction — such as is the case here — the action must be dismissed if the action fails to implicate federal law. Clissuras v. City University of New York, 359 F.3d 79, 81 n. 3 (2d Cir. 2004) (citing Fed.R.Civ. 12(h) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter, the court shall dismiss the action.")).
The Court may exercise subject matter jurisdiction where complete diversity exists between the parties. Wisconsin Dept of Corr. v. Schact, 524 U.S. 381, 388 (1998). However, diversity jurisdiction does not exist here, since Sony is incorporated in New York and is therefore a citizen of New York, see Helmsley-Spear, Inc. v. Ramfis Realty Inc., No. 03 Civ. 8482 (NRB), 2003 WL 22801162, at *2 (S.D.N.Y. Nov. 25, 2002) (citing 28 U.S.C. § 1332(c)), and Greene is a resident of New York.
In his Amended Complaint, plaintiff invokes his "rights protected under the Federal Laws," and obliquely refers to the "Federal Copyright Laws." (Pl.'s Am. Compl. at 1.) In addition to copyright infringement, other claims alleged in the Amended Complaint include "unauthorized use of music," "unauthorized licensing of music," and "unauthorized manufacture and distribution of music own [sic] by plaintiff." (Pl.'s Am. Compl. at 5.) None of these claims explicitly or implicitly invokes a federal question apart from the copyright infringement claim. Thus, federal question jurisdiction exists only if plaintiff has stated a claim arising under the Copyright Act.
Section 411 of the Copyright Act provides, in relevant part, the jurisdictional prerequisites to a federal action for copyright infringement:
[N]o action for infringement of the copyright in any United States work shall be instituted until 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 an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights.17 U.S.C. § 411(a). Therefore, the issue before this Court is whether Greene has sufficiently alleged that he has complied with the requirements of Section 411, thereby establishing subject matter jurisdiction.
The plain language of Section 411(a) indicates that a federal district court lacks subject matter jurisdiction over a claim for federal copyright infringement until the Copyright Office has approved or refused the pending application for copyright registration. See U-Neek, Inc. v. Wal-Mart Stores, Inc., 147 F. Supp. 2d 158, 169 (S.D.N.Y. 2001) ("It is well settled that the court lacks subject matter jurisdiction unless the claimant has a registration or its registration has been denied."); Tuff-N-Rumble Management, Inc. v. Sugarhill Music Publishing Inc. 49 F. Supp. 2d 673, 677 (S.D.N.Y. 1999) ("[D]istrict courts are without subject matter jurisdiction to hear claims for federal copyright infringement unless a party asserts in his pleadings that he has received an actual certificate of registration or its denial from the Copyright Office."); Demetriades v. Kaufmann, 680 F. Supp. 658, 661 (S.D.N.Y. 1988) ("Receipt of an actual certificate of registration or denial of the same is a jurisdictional requirement, and this court cannot prejudge the determination to be made by the Copyright Office.").
Although a few courts in this Circuit have determined that a pending application for copyright registration is sufficient to give a district court jurisdiction over an infringement claim, see, e.g., Lennon v. Seaman, 63 F. Supp. 2d 428, 432 (S.D.N.Y. 1999), the Court finds those cases unpersuasive to the extent that they conflict with the plain language of Section 410 and Section 411. Specifically, Section 411(a) provides that jurisdiction is not conveyed "until registration of the copyright claim has been made in accordance with [the Copyright Act]." 17 U.S.C. § 411(a). Additionally, Section 410(a) indicates that a claim must be examined and approved by the Register of Copyrights before it is registered. 17 U.S.C. § 410(a). Only after the Register of Copyrights examines the material deposited and determines that the legal and formal requirements of the statute have been met does it register the claim and issue a certificate of registration. Id. Thus, the plain language of the statute confirms that although submission of a claim begins the registration process, a claim is not deemed registered until the Register of Copyrights approves it. See Corbis Corp. v. UGO Networks, Inc., 322 F. Supp. 2d 520, 521-22 (S.D.N.Y. 2004) (citing cases) ("The combination of sections 410 and 411 thus make[s] plain that the federal district courts do not have jurisdiction over a claim for federal copyright infringement until the Copyright Office has either approved or refused the pending application for registration."); Amazon.com, 2004 WL 3092244, at *20 ("A review of the plain language of the Copyright Act supports [the] conclusion" that a "district court does not have subject matter jurisdiction over an infringement claim until the Copyright Office grants the registration application and issues a certificate of registration."); Loree Rodkin Management Corp. v. Ross-Simons, Inc., 315 F. Supp. 2d 1053, 1055 (C.D. Cal. 2004) ("Because it indicates that the Copyright Office, not the applicant, registers a claim, and that examination is a prerequisite to registration," Section 410(a) "cuts against" the argument that "the word `registration' refers to the moment that the plaintiff delivers the fee, deposit, and application to the Copyright Office.").
The Lennon decision cites 2 Melville B. Nimmer David Nimmer, NIMMER ON COPYRIGHT § 7.16[B][1][a] in support of its conclusion that Section 411(a)'s requirement can be met by filing an application for registration. Lennon, 63 F. Supp. 2d at 432. NIMMER notes that "[b]y virtue of [the language in Section 411(a)] a party who seeks to register may proceed to litigate the claim, regardless of whether the Copyright Office ultimately issues the certificate, or by contrast denies it. . . ." 2 NIMMER ON COPYRIGHT § 7.16[B][1][a], at 7-155. Therefore, NIMMER concludes, "if suit is filed during the interval after the copyright owner has duly submitted all the necessary ingredients to the Copyright Office, but before that Office has issued the certificate or denied its issuance," the preferred approach is to allow the suit to proceed, "given that the claimant at that juncture has done all that it can do, and will ultimately be allowed to proceed regardless of how the Copyright Office treats the application." 2 NIMMER ON COPYRIGHT § 7.16[B][1][a], at 7-155 to 7-156. In Corbis Corp. v. Amazon.com, Inc., No. CV03-1415L, 2004 WL 3092244, at *20 (W.D. Wash. Dec. 21, 2004), Judge Robert S. Lasnik criticized this analysis as an overly broad reading of Section 411(a), reasoning that "[a]dopting this approach requires inserting language into § 411(a) that simply is not there." Amazon.com, 2004 WL 3092244, at *20. Specifically, Judge Lasnik persuasively determined that "Section 411(a) indicates who may invoke this Court's jurisdiction for violation of the Copyright Act (those who have received a final determination on their application to register their copyright) and, by implication, excludes everyone else (those who have either not registered or whose applications for registration are pending)." Id. To the extent that Judge Lasnik's interpretation is consistent with this Opinion, the Court agrees with the assessment that the NIMMER approach contradicts the plain language of Section 411(a).
The section provides that:
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 U.S.C. § 410(a).
The mere allegation that plaintiff has initiated the appropriate steps for processing his application for a copyright — e.g., filing the deposit, application and fee — is therefore insufficient to establish copyright registration even at the motion to dismiss stage. Corbis Corp., 322 F. Supp. 2d at 522. Thus, plaintiff's Amended Complaint again suffers from serious jurisdictional defects. The most generous reading of plaintiff's Amended Complaint enables the Court to conclude only that, at the time the Amended Complaint was filed, plaintiff had applied for registration with the Copyright Office, but had not yet received approval or denial of that application. Under these facts, this Court has no subject matter jurisdiction over plaintiff's complaint.
Even more significantly, plaintiff was afforded a second opportunity to cure these defects in his Amended Complaint. Despite the Court's instructions in its June 7, 2004 Order, explaining that it could not exercise subject matter jurisdiction over plaintiff's copyright infringement claim unless his complaint alleged possession of an actual certificate of registration or its denial from the Copyright Office, plaintiff's Amended Complaint still does not provide a foundation for the assertion of federal jurisdiction. Although several months have passed since plaintiff filed his Amended Complaint and defendant filed its motion to dismiss, plaintiff has not indicated to the Court whether he has since received an acceptance or denial of his application from the Copyright Office. Accordingly, the Court dismisses plaintiff's complaint in its entirety without prejudice for lack of subject matter jurisdiction. See UGO Networks, 322 F. Supp. 2d at 522 (dismissing copyright infringement claims for lack of subject matter jurisdiction because registrations for the works in question were pending but not yet approved or disapproved by the Copyright Office); Archie Comic Publications, Inc. v. DeCarlo, No. 00 Civ. 5686, 2001 WL 831250, at *1 (S.D.N.Y. July 23, 2001) (dismissing copyright infringement claims for lack of subject matter jurisdiction because the claims did not allege that plaintiff had obtained certificates of registration); Secunda v. Time Warner Cable of New York City, No. 95 Civ. 0671, 1995 WL 675464, at *2 (S.D.N.Y. Nov. 14, 1995) (dismissing plaintiff's copyright infringement claim without prejudice because plaintiff did not allege registration of the copyright).
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss plaintiff's Amended Complaint [15] is GRANTED without prejudice. Defendant's motion to strike [15] is DENIED as moot. The Clerk of the Court is directed to close the case.
SO ORDERED.