Raquel v. Edu. Mgmt. Corporation, 98-3321

Decision Date05 April 1999
Docket NumberNo. 98-3321,98-3321
Citation196 F.3d 171
Parties(3rd Cir. 1999) RAQUEL, A PARTNERSHIP V. EDUCATION MANAGEMENT CORPORATION; ART INSTITUTES INTERNATIONAL, INC.; GEFFEN RECORDS INC.; NIRVANA, A PARTNERSHIP; ELIAS/SAVION, INC.; PHILIP ELIAS, INDIVIDUALLY RAQUEL, APPELLANT Argued:
CourtU.S. Court of Appeals — Third Circuit

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civ. No. 96-cv-02349) District Judge: Hon. Donald J. Lee

Kim M. Watterson (Argued), Richard M. Smith, Matthew H. Meade, Katarincic & Salmon, Pittsburgh, PA, Attorneys for Appellant.

Dennis J. Mulvihill, Thomas J. Farnan (Argued), Robb, Leonard & Mulvihill, Pittsburgh, PA, Attorneys for Appellees Education Management Corp. and Art Institutes International, Inc.

Elizabeth L. Rabenold, Michael J. Kline, Stuart C. Gaul, Jr., Thorp, Reed & Armstrong, Pittsburgh, PA, Attorneys for Appellees Geffen Records Inc. & Nirvana.

Thomas C. Wettach (Argued), Gerald J. Iwanejko, Jr., Titus & McConomy, Pittsburgh, PA, Attorneys for Appellees Elias/Savion, Inc. & Philip Elias, Individually.

Before: SLOVITER, ALITO and ALARCON,* Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Before us is an appeal from the order of the District Court dismissing for lack of subject matter jurisdiction this copyright infringement action filed by appellant Raquel. The court based its decision on Raquel's failure to show registration of its copyright claim in accordance with the Copyright Act, which is a prerequisite for the filing of an action for infringement. 17 U.S.C. 411(a).

I.

Raquel is a partnership comprising musicians and songwriters who authored the music, lyrics, and arrangement for an original song entitled "Pop Goes the Music" ("the Song"). Raquel granted defendants Elias/Savion Advertising Agency, Inc. ("Elias/Savion") and Education Management Corporation ("EMC"), a license to use the Song and Raquel's performance for three years in a television commercial produced by Elias/Savion that advertised the educational programs offered by Art Institutes International (an entity operated by EMC). As compensation for its license of the Song and its performance, Raquel received a separate, full-length music video of some four minutes' duration. Like the commercial, the video was produced by Elias/Savion.

In July 1995, Raquel, through counsel, filed a federal copyright registration form with the Register of Copyrights. It identified the nature of the work for which copyright registration was sought as an "Audiovisual Work," the title of the work as "Pop Goes the Music," and the nature of authorship as "All music and lyrics and arrangement." App. at 48. Raquel deposited with the application a videotape apparently containing both the commercial and the full-length music video.

In October 1995, Raquel filed a copyright infringement action under the Copyright Act, 17 U.S.C. 101, in the United States District Court for the Western District of Pennsylvania against EMC, Geffen Records, and the music group Nirvana. Raquel alleged in its complaint that EMC violated the licensing agreement by continuing to run the commercial beyond the three-year period provided for in the agreement and that EMC, acting through Art Institutes International, infringed its copyright by entering into an agreement with defendants Geffen and Nirvana for the use of a portion of the commercial containing the Song "Pop Goes the Music" in a music video for Nirvana. EMC then filed a third-party complaint against Elias/Savion seeking indemnification and/or contribution for any liability it may have had toward Raquel.

On motion of Elias/Savion, the District Court dismissed the complaint against all defendants for lack of subject matter jurisdiction. Raquel v. Education Mgmt. Corp., 955 F. Supp. 433 (W.D. Pa. 1996).1 The court noted that in the complaint Raquel alleged that the "musical video and TV commercial (hereinafter referred to as the 'Subject Work'), upon being fixed in the tangible medium of a videotape, was published by [Raquel] with a notice of copyright on February 20, 1991" and that the work "contains material wholly original in [Raquel] that is copyrightable subject matter." Id. at 439. The court then noted that Raquel had registered the copyright as an "audiovisual work" entitled "Pop Goes the Music," whereas Mr. Elias of Elias/Savion, not Raquel, was the acknowledged author of the commercial and music video. Id. at 438. Raquel therefore did not have a copyrightable interest in the work that formed the basis of its lawsuit because it was undisputed that Elias/Savion was the sole author of the audiovisual. Id. at 439. The court concluded that because the complaint based the infringement claim upon the commercial (in which Raquel had no interest) and not upon the musical work, it had no subject matter jurisdiction and would grant the motion to dismiss. Id. at 440.

The District Court nonetheless denied attorneys fees to Elias/Savion. The court, which had previously stated that "the term 'Audiovisual Work' was inadvertently included," id. at 439, stated that Raquel has a "copyrightable interest" in the Song, and "did not knowingly fail to advise the copyright office of facts which might have led to the rejection of its registration application." Id. at 440.

On December 2, 1996, after the dismissal of its first complaint, Raquel's counsel filed a supplemental registration form with the Copyright Office. This document added "performance of song Pop Goes the Music" to the description of the nature of the authorship in the earlier registration, but made no other changes. App. at 67. On December 20, 1996, Raquel, again through counsel, filed yet another supplemental registration form. In this form, Raquel sought to "amplify" line one of the registration form, that describing the "nature of the work," by filing two copies of the video of Raquel performing the Song. By way of explanation, Raquel stated on the form: "Original filing was made with videocassette which contained 'Video' of RAQUEL performing song, 'Pop Goes the Music', and also contained other items as to which claimant does not assert copyright." App. at 55.

The following week, Raquel filed a second copyright infringement action against the same defendants who were named in the first complaint. The second complaint made essentially the same factual allegations, but asserted that the copyright that was the subject of the infringement was Raquel's copyright in the Song. The defendants moved to dismiss for lack of subject matter jurisdiction, asserting, inter alia, that Raquel's copyright registration was insufficient to support jurisdiction for an action alleging infringement of its copyright in the Song.

The District Court initially denied the defendants' motion. On the defendants' motion for reconsideration, the court, approving and adopting a report and recommendation from the Magistrate Judge, granted the motion and dismissed the case. The District Court's dismissal was based on its conclusion that neither Raquel's copyright registration nor its supplemental registration was sufficient to confer jurisdiction in an action for infringement of the Song. Raquel timely appealed.

II.

The Copyright Act provides: "No action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made in accordance with this title." 17 U.S.C. 411(a). Thus, the issue is whether Raquel has met the jurisdictional prerequisite for maintaining a copyright infringement action, namely a valid registration in the work that has allegedly been subject to an infringing use. Our review of the District Court's dismissal for lack of subject matter jurisdiction is plenary. See Singh v. Daimler-Benz AG, 9 F.3d 303, 305 (3d Cir. 1993).

A.

We first confront Raquel's argument that the District Court erred in failing to adhere to its determination in the first lawsuit "that the 1995 Registration was a valid registration of the Song." Appellant's Br. at 25. There is language in the District Court's 1996 opinion which, standing alone, might lead one to conclude that the District Court opined that Raquel did have a registered copyright in its Song despite its description of the work as an "Audiovisual work." At one point in its opinion, the court stated that the inclusion of the term "Audiovisual Work" in the application "did not invalidate the copyright of the music and lyrics to the song 'Pop Goes the Music';" 955 F. Supp. at 439, and at another point stated that Raquel "had a copyrightable interest in the [Song];" id. at 440 (emphasis added). The District Court stated that the characterization as an audiovisual work was inadvertent, and then stated, "An innocent omission or inclusion in a registration will not invalidate the copyright or render it incapable of supporting an infringement action." Id. at 439. However, because the District Court dismissed the case for want of jurisdiction on the ground that Raquel had only pleaded a copyright interest in the commercial and the video, in which Raquel had no copyrightable interest, and the case before it raised the issue of the validity of the registration of the audiovisual work, its statement suggesting that the registration was valid vis-a-vis the Song was not necessary to the decision and is at most dictum. It did not, therefore, bind the District Court in this case, which is a new lawsuit with a separate civil action number. Of course, as the first dismissal was never appealed to this court, any statement or inference raised by the District Court could not bind us.

We note parenthetically that both the magistrate judge and the district court judge in this case are, respectively, the judges who recommended dismissal and who dismissed the first complaint. Consequently, although we appreciate why Raquel might have drawn the opposite conclusion, we conclude that the issue whether Raquel...

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