As in Kodadek, Pringle’s reconstructed copies will not satisfy the deposit requirement of Section 408. Unless and until Pringle complies with 17 U.S.C. § 408(b) by depositing copies of the specific derivative work allegedly infringed by the Defendants, he is legally barred from pursuing this case. See Cosmetic Ideas Inc. v. IAC/Interactive Corp, 606 F.3d 612 (9th Cir. 2010) (filing a completed copyright application, including deposit copies, required for access to federal courts).

PROPERLY DEVELOPED AND IMPLEMENTED RULES FOR THE REGISTRATION OF LARGE NUMBERS OF PHOTOGRAPHS ALREADY EXIST With the passage of the 1976 Act, Congress explicitly granted the Copyright Office authority to establish procedures for the group registration of photographs by the same photographer. See 17 U.S.C. § 408. The provision empowering the Register to allow a number of related works to be registered together as a group represents a needed and important liberalization of the law now in effect.

The Complaint also fails to state a claim for relief because Plaintiff has improperly registered the vast majority of its works as part of “collections.” However, 17 U.S.C. § 408(c) and 37 C.F.R. § 202.3 preclude registration of Plaintiff’s works as collections because the works do not have the same author.

16[A][1] (“copyright automatically inheres in a work the moment it is ‘created’”). 45 17 U.S.C. § 408(a). 46 See Christopher Phelps & Associates, LLC v. Galloway, 492 F.3d 532, 538-39 (4th Cir. 2007) (“once fixation of an original work has taken place, the author has a copyright in the work, and registration with the Copyright Office serves only supporting roles.

As a non-exclusive licensee, Ozimals was not and is not the “owner” of the copyright in the code, and had no right to obtain a U.S. Copyright Registration. See 17 U.S.C. § 101 (“’Copyright owner’, with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right”); 17 U.S.C. § 408(a) (only the “owner” of the copyright or an exclusive licensee may obtain a registration); see also 37 C.F.R. § 37 (a copyright claimant is either the author of the work or a person or organization who has obtained ownership rights). Defendants knew that Ozimals was not the owner of any copyright in the bunnies at the time Ozimals applied for a U.S. Copyright Registration.

As discussed in Section III.A above, copyright protection for a Class Work is not conditioned on obtaining registration from the Copyright Office. 17 U.S.C. § 408(a). In fact, the registration of a work does not grant a registrant any substantive legal rights.

As a result, the U.S. Copyright Office does not issue copyrights, but instead, “registers claims to copyright. 17 U.S.C. § 408(a); Compendium § 502 (emphasis added). A copyright “claim” is an “assertion of copyright [ownership in]…the work.” Compendium § 502 citing Applications for Registration of Claim to Copyright Under Revised Copyright Act, 42 Fed. Reg. 48, 944 (Sept. 26, 1977).

Preregistration is a procedure designed to protect certain classes of unpublished works being prepared for commercial distribution that the Register of Copyrights has determined have a history of infringement prior to authorized commercial distribution. 17 U.S.C. § 408(f). Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 11 of 26 6 ( “plaintiff could not establish a prima facie case of [copyright] infringement because it did not hold a registered copyright”) (emphasis in original) (citing Dawes-Lloyd v. Publish Am., LLP, 441 Fed. Appx. 956, 957 (3d Cir. 2011).

The plaintiff does not allege preregistration, but even if he did preregistration is not a substitute for actual registration. See 17 U.S.C. § 408(f)(3) (requiring copyright owner to submit an application for registration within 3 months after the work is published); Id. § 408(f)(4) (if infringement of a preregistered work occurs within 2 months after the date of first publication, infringement suit must be dismissed unless the copyright owner applies for registration no later than one month after discovering the infringement, or within 3 months after publication, whichever is earlier).

Section 408 similarly provides that a copyright owner “may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section, together with the application and fee [.]” 17 U.S.C. § 408(a) (emphasis added). There is no requirement that the Register take any action for the copyright owner to “obtain registration” under this provision.