This is a basic principal that has, time and again, been reiterated in the 2nd Circuit and by its various District Courts: In order to bring a claim for copyright infringement, the complaint must allege that the infringed work was either registered with the Copyright Office or was otherwise denied registration prior to filing the Complaint. Obodai v. Youtube, LLC, 11-cv-4343 (S.D.N.Y., December 29, 2011).
I only bring this case up because I still see instances of plaintiffs bringing copyright infringement cases without properly pre-registering their works (and I equally often see unwary defendants settling lawsuits for fear of statutory damages because they failed to make a simple motion to dismiss).
In Obodai, the District Court gave plaintiff time to amend its complaint in order to allege registration. The plaintiff failed to amend, and the case was dismissed. The relevant caselaw is as follows:
Under 17 U.S.C. § 411(a), “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.” Accordingly, barring some applicable exception, the absence of a valid copyright registration divests the Court of subject matter jurisdiction over an action for copyright infringement. See Morris v. Business Concepts, Inc., 259 F.3d 65, 68 (2d Cir. 2001); accord Well-Made Toy Mfg. Corp. v. Goffa Int’l Corp., 354 F.3d 112, 114, 115 (2d Cir. 2003) (affirming dismissal for lack of “subject matter jurisdiction” because section 411(a)’s “registration requirement is jurisdictional”); see also DO Denim, LLC v. Fried Denim, Inc., 634 F. Supp. 2d 403, 406 (S.D.N.Y. 2009) (dismissing the copyright infringement claim and holding that not even the application for copyright registration would satisfy the Section 411[a] precondition for bringing a copyright infringement action without a prior rejection or final registration of the application).
The 2nd Circuit has shown itself time and again to follow the Copyright Act § 411(a) registration requirement.
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