383 at 5. In other words, the Copyright Office determined that the misrepresentation that a work is unpublished when it is actually published, that the date of creation was incorrect, and that there are no other copyright registrations for the same work, are material representations because she would have refused registration under 17 U.S.C. § 411(b)(1)(B). See, e.g., St. Luke’s Cataract, 573 F.3d at 1202 (applicant “acknowledged that the date on several pages of the deposit copy showed that they 2015 WL 547328, at *2 (quoting Kernel Records Oy, 694 F.3d at 1302 (quoting Nimmer § 7.

As noted above, Reed Elsevier arose in the Second Circuit, and the Supreme Court reversed the Second Circuit’s holding that Section 411(a) is jurisdictional. The issue whether filing an application constitutes “registration” being “made” under Section 411(a) has not been addressed by the Second Circuit post-Reed Elsevier . District Court decisions within the Second Circuit over the years have been inconsistent, some concluding that filing an application satisfies the requirements of Section 411(a), see, e.g., Well-Made Toy Mfg. Corp. v. Goffa Int’l Corp., 210 F. Supp. 2d 147, 157 (E.D.N.Y. 2002), aff’d, 354 F.3d 112 (2d Cir. 2003); Salerno v. City Univ. of New York, 191 F. Supp. 2d 352, 356 (S.D.N.Y. 2001), and some concluding that it does not, see, e.g., Corbis Corp. v. UGO Networks, Inc., 322 F. Supp. 2d 520, 521-22 (S.D.N.Y. 2004).

As in Zipes, the plaintiff in Muchnick sought to represent a class of unnamed plaintiffs, the majority of whom had not satisfied the non-jurisdictional precondition to suit. As in Zipes, the consequence of the Court’s characterization of the applicable precondition was clear and significant: By holding that the act of obtaining copyright registration from the Copyright Office is the procedural equivalent of filing a discrimination charge with the EEOC, Muchnick thereby confirmed that a plaintiff who obtains copyright registration under 17 U.S.C. § 411(a) can pursue claims on behalf of class members who have not themselves obtained registration. The Supreme Court’s decision in Muchnick reversed the Second Circuit’s decision in the case of In re Literary Works in Electronic Databases Litigation, 509 F.3d 116 (2d Cir. 2007).

Heinlein does indeed have a right that other class members do not have: the right to bring this action in his own name and to serve as a class representative. Under 17 U.S.C. § 411(a), no other class member would be able to serve as a class representative unless and until he or she obtained copyright registration. But this does not mean that Heinlein’s interests are “antagonistic” to the proposed class such that he would be an inadequate class representative.

The copyright registrations at Serial Nos. 24 through 45, therefore, do not satisfy the requirements of 17 U.S.C. § 411. Accordingly, this Complaint should be dismissed for failure to comply with the threshold pre-condition of registering the asserted copyrights prior to filing suit under 17 U.S.C. § 411. 9 Decisions holding that registration of a compilation of songs and stories would suffice to bring an infringement action of the individual songs or stories is applicable only to those cases where the owner of the compilation also owns the constituent elements of the compilation.

Bean v. Houghton Mifflin Harcourt Publishing Co., 2010 WL 3168624 (D.Ariz.); see also Russ Berrie & Co., Inc. v. Jerry Elsner Co., Inc., 482 F.Supp. 980 (S.D.N.Y.1980), 205 U.S.P.Q. 320 (holding that a copyright for stuffed toy gorilla would not be enforced where president of corporate copyright holder conceded knowledge of preexisting stuffed gorilla that it was in public domain at time application for copyright was filed and failed to disclose it). Case4:11-cv-06702-DMR Document73 Filed04/04/13 Page30 of 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION // Case No. 4:11-cv-06702-DMR D Y K E M A G O S S E T T L L P 3 3 3 S O U T H G R A N D A V E N U E ,S U IT E 21 00 L O S A N G E L E S ,C A L IF O R N IA 9 00 7 1 These omissions are not technical errors of the sort that can be cured by 17 U.S.C. §411(b); the issue is not whether the information is “inaccurate” but whether certain content is within its scope at all. The reasoning of these cases is consistent with the practical necessity that a copyright applicant provides the Copyright Office with all of the information that it needs to determine ownership, authorship, and duration of copyright.

20 registration a prerequisite, certainly not to the very types of works that are explicitly no longer subject to any such requirement under the Act (i.e., Non-U.S. Works).4 (1) The Requirement of Registration Applies Only to United States Works YouTube’s argument, that U.S. copyright law makes no distinction between “domestic” and “foreign” works in connection with registration, see Motion at 4 n.3, is plainly wrong. See 17 U.S.C. § 411(a). YouTube also argues that references to registration is other parts of the Act are somehow informative.

La Resolana Architects v. Clay Realtors Angel Fire, 416 F.3d 1195, 1208 (10th Cir. 2005); Diaz v Mandeville, 46 USPQ2d 1862 (E.D. Mich. 1997) (dismissing complaint where evidence of application to register copyright lacked proof of fee submission or receipt by copyright office). Plaintiff has provided no proper evidence to demonstrate that the jurisdictional requirement of 17 U.S.C. § 411(a) has been met. The conclusory, hearsay statement in the Declaration of Marco Heithaus that an application, deposit and fee were submitted to the Copyright Office is Case 3:07-cv-03983-JSW Document 25 Filed 10/10/2007 Page 8 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM1\1203594.

And although Section 411(a) allows the putative copyright owner to sue even if his registration application is denied, the statute clearly contemplates that the plaintiff will commence the suit only after the Copyright Office has acted on the application. See 17 U.S.C. 411(a) (providing that, where a properly submitted registration application 3 This brief was filed in connection with Reed Elsevier, Inc. v. Irvin Muchnick, 559 U.S. 154 (2010). When deciding that case, the Supreme Court held that registration was a statutory prerequisite to suit, not a jurisdictional requirement, but did not decide whether this prerequisite could be met by an application only, prior to registration.

. Moreover, in the case of a derivative work,2 the Second Circuit has held that “section 411(a) bar[s] the district court from considering whether th[e] copyright [in an unregistered derivative work] had been infringed . . . .” Well-Made Toy Mfg. Corp., v. Goffa Int’l Corp., 354 F.3d 112, 116 (2d Cir. 2003);