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DNJ rules that issued registration not application is necessary for infringement action

 

by Barry Werbin

Fueling the growing split among district and circuit courts, on 1/4/2013, D.N.J. Judge William Martini ruled in North Jersey Media Group Inc. v. Sasson that actual registration of a copyright, not a pending application, is required under 17 USC 411(a) in order to institute an action for infringement.  Plaintiff NJMG, a news reporting company, sued Sasson (a former NJMG employee) for posting on his blog, which was critical of NJMG, certain articles written and photographs taken by NJMG journalist employees.  Sasson moved to dismiss “because NJMG has only applied for, but not yet received, certificates of copyright registration.”

The court held that under Section 411(a), a registration in hand is a necessary prerequisite to suit, but noted that “Courts are split over the interpretation of the pre-suit ‘registration’ requirement,” between the “application approach” and the “registration approach.”  Although the Third Circuit had touched on the issue in Dawes–Lloyd v. Publish Am., LLLP, 441 F. App’x 956, 957 (3d Cir. 2011) (per curiam), “it was in reference to a plaintiff who had apparently never attempted to register her copyright.”  Citing two other recent NJ district court cases and a Pa. case supporting the “registration approach,” along with one recent Pa. case finding that the “application approach is both permissible under the plain language of § 411(a) and preferable as a matter of public policy,” Judge Martini sided with the former NJ cases, anticipating how the Third Circuit would rule, and applied the registration approach to grant the dismissal motion without prejudice.  As a result, NJ district courts now seem aligned with the “registration approach.”