The opinion of the court was delivered by: William J. Martini, U.S.D.J.:
This matter comes before the Court on Defendant Victor E. Sasson's motion to dismiss Counts Two, Three, and Four of Plaintiff's Complaint under Federal Rule of Civil Procedure 12(b)(6). Plaintiff North Jersey Media Group Inc. opposes the motion. For the reasons set forth below, Defendant's motion is GRANTED.
I.FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff North Jersey Media Group Inc. ("NJMG") is a news reporting company which contributes substantial original reporting and photographs to the content it publishes. (Compl. ¶¶ 5-6.) As example, recently, NJMG employed a reporter to write a news article on the trial of Hackensack Chief of Police Ken Zisa and his former girlfriend Kathleen Tiernan (the "Zisa Article"). In connection with that trial, NJMG also employed photographers who took photographs of Zisa (the "Zisa Photograph") and Tiernan (the "Tiernan Photograph"). NJMG has applied for -- but has not yet received -- certificates of copyright registration in the Zisa Article, the Zisa Photograph, and the Tiernan Photograph (collectively, the "Zisa Works"). (Compl. ¶¶ 23, 28, 35.)
Defendant Victor E. Sasson is a former employee of NJMG who now operates his own Internet blog. (Compl. ¶ 5.) NJMG claims that in May 2012, Sasson posted entries on his blog which used the Zisa Works without NJMG's permission. NJMG also claims that in October 2009, Sasson -- again without NJMG's authorization -- published an iconic September 11 photograph, for which NJMS owns a certificate of copyright registration.
On June 13, 2012, NJMG commenced suit against Defendant. In the four-count Complaint, NJMG asserts claims against Defendant for copyright infringement of the September 11 photograph (Count One), the Zisa Article (Count Two), the Zisa Photograph (Count Three), and the Tiernan Photograph (Count Four). In response, Defendant filed the present motion to dismiss Counts Two, Three, and Four pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that because NJMG has only applied for, but not yet received, certificates of copyright registration in the Zisa Works, NJMG has failed to state a prima facie claim of copyright infringement of those works.
A.Failure to State a Claim
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in the light most favorable to the plaintiff. Warth v. Seldin, 422 U.S. 490, 501 (1975). See also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). When considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263 (3d Cir. 2007).
B.Copyright Infringement and 17 U.S.C. § 411(a)
The Copyright Act specifically provides, in part, that "no civil
action for infringement of the copyright in any United States works
shall be instituted until preregistration or registration of the
copyright claim has been made." 17 U.S.C. § 411(a).*fn1
See also Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237,
1241 (2010) (Section 411(a)'s registration requirement is a
precondition to filing a copyright infringement claim).
Courts are split over the interpretation of the pre-suit "registration" requirement set forth in § 411(a). Patrick Collins, Inc. v. Doe, 843 F. Supp. 2d 565, 568 (E.D. Pa. 2011). Some courts have taken an "application approach," under which a pending copyright registration application is sufficient to satisfy § 411(a); others have taken a "registration approach," under which a certificate of registration issued by the Copyright Office is a prerequisite to suit. See Cosmetic Ideas, Inc. v. IAC/Interactivecorp., 606 F.3d 612, 615--16 (9th Cir. 2010) (collecting cases).
Although the Third Circuit recently stated that "[a]n action for infringement of a copyright may not be brought until the copyright is registered," it was in reference to a plaintiff who had apparently never attempted to register her copyright. Dawes--Lloyd v. Publish Am., LLLP, 441 F. App'x 956, 957 (3d Cir. 2011) (per curiam). Thus, the Third Circuit has not squarely addressed whether a pending copyright application satisfies § 411(a)'s pre-suit "registration" requirement. But see Patrick ...