22) Defendants failed to present probative evidence that rebuts Plaintiffs presumption and satisfies their burden of proof. B. PLAINTIFF'S REGISTERED COPYRIGHT IS PRIMA FACIE EVIDENCE OF A VALID COPYRIGHT Pursuant to 17 U.S.C. § 410(c): In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.

For registrations not made within five years of first publication, “[t]he evidentiary weight to be accorded the certificate of registration . . . shall be within the discretion of the court.” See 17 U.S.C. § 410(c); see also Religious Tech. Ctr.

See Estate of Burne Hogarth v. Edgar Rice Burroughs, Inc., 342 F.3d 149, 165 (2d Cir. 2003). The Fania registration certificates for the six pre-1978 BMI/Fania Works satisfy the requirements of 17 U.S.C. § 209 and the Fania registration certificate for the only post-1978 BMI/Fania Work at issue satisfies the requirements of 17 U.S.C. § 410(c).14 SF at ¶¶ 10, 19, 23, 35, 42. Therefore, the Fania registration certificates create a statutory presumption that the works are part of the Fania Catalogue and written by the authors listed on the Fania Registration Certificates.

No cases were cited to us, and we are not aware of any authority, stating that the presumption of validity of a copyright does not apply when standing is at issue. Indeed, such cases do not exist because this rule would render 17 U.S.C. § 410(c)'s presumption of copyright validity meaningless. United Fabrics Int'l, Inc., 630 F.3d at 1258 LCI also cites to the District Court’s decision in L.A. Printex v. Aeropostale.

Furthermore, that approach has never been adopted in the Ninth Circuit. Instead, “inadvertent mistakes on registration certificates do not invalidate a copyright and thus do not bar infringement actions, unless . . . the claimant intended to defraud the Copyright Office by making the misstatement,” 11 17 U.S.C. §410(b) provides (emphasis added): “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.” Case 2:09-cv-04514-ODW-VBK Document 187 Filed 10/18/10 Page 19 of 36 Page ID #:4236 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 -12- PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES CV09-4514 (ODW)(VBKx) which was not alleged here.

Of course, a copyright registration is not the same as a copyright application—upon receipt of an application, “the Registrar of Copyrights must examine and approve a copyright claim before it is ‘registered’ under the Act.” Berry v. Penguin Group, Inc., 448 F. Supp. 2d 1202, 1202-03 (W.D. Wash. 2006) (citing 17 U.S.C. § 410(a)); see also Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 1090, 1112 (W.D. Wash. 2004) (“Although submission of a claim begins the registration process, a claim is not registered until it is approved by the Register of Copyrights. Under the plain meaning of the language, the Register’s approval triggers this Court’s jurisdiction.”)

Leaning on Nimmer, this court found that plaintiff’s inclusion of thirteen previously published designs – including the one that was the basis for the lawsuit – in a collection of purportedly unpublished designs was a material error that rebutted the 17 U.S.C. §410(c) presumption of validity and did not satisfy the plaintiff’s “valid registration” prerequisite Case 1:16-cv-03081-KBF Document 18 Filed 06/27/16 Page 20 of 23 18 for a copyright infringement action. Family Dollar, 896 F. Supp. 2d at 234; see also 17 U.S.C. §410(c). This court is not alone in invalidating “unpublished collection” copyright registrations with respect to previously published works claimed therein.

These courts denied copyright protection to sue upon a work that infringed upon the derivative use rights of a copyright owner when when the copyright owner was not involved, as here. In such situations, 17 U.S.C. §410(c) states that even though a registration provides a presumption of the validity of the copyright, the Court alone has the “discretion” on what “evidentiary weight” to give the certificate of registration.10 Here, Your Honor is requested to give EVOX’s registration no weight at all as a matter of law. Each of EVOX’s photographs infringe upon the copyright-protected rights belonging to others, namely the owners of the auto designs and trademark logos that appear in the 149 PHOTOGRAPHS.

TO MOTION TO CONTINUE TRIAL Under the Copyright Act, the CR “constitutes prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” 17 U.S.C. § 410(c) (emphasis added); Eisenman Chemical Co. v. NL Industries, Inc., 595 F.Supp. 141, 145 (D.C. Nev. 1984) (citing Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1092 n. 1 (2nd Cir. 1977). Here, the very person now disputing “the facts stated in the certificate” – Plaintiff Cummings – is the same person who provided them, and did so under the threat of criminal penalties.

All the registrations identify Plaintiffs as the copyright owners. Defendant argues that the registrations were in error, and that the prima facie presumption, 17 U.S.C. § 410(c), disappears. This argument fails for two reasons.