                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-19-2005

Gallup Inc v. Kenexa Corp
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4368




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                                                               NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                    No. 04-4368


                                 GALLUP, INC.,
                          d/b/a The Gallup Organization,

                                               Appellant

                                          v.

                            KENEXA CORPORATION


        ON APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                           District Court No. 00-cv-05523
              District Court Judge: The Honorable Lawrence F. Stengel


                    Submitted Under Third Circuit LAR 34.1(a)
                                 July 15, 2005

      Before: ALITO, VAN ANTWERPEN, and ALDISERT, Circuit Judges

                       (Opinion Filed: September 19, 2005)


                            OPINION OF THE COURT


PER CURIAM:

    Gallup, Inc. (“Gallup”) appeals from a final order of the District Court awarding
summary judgment to Kenexa Corporation (“Kenexa”) on Gallup’s claim for copyright

infringement. Gallup argues that the District Court erred in declaring its copyright

registration invalid and incapable of supporting an action for infringement. For the

reasons set forth below, we agree with Gallup, and we vacate the District Court’s order.

                                              I.

       An award of summary judgment receives plenary review. See In re Ikon Office

Solutions, Inc., 277 F.3d 658, 665 (3d Cir. 2002). A motion for summary judgment

should be granted “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). In applying this test, the Court must draw all reasonable

inferences from the evidence in favor of the nonmoving party and may not weigh the

evidence or assess credibility. See Country Floors, Inc. v. A P’ship Composed of Gepner

& Ford, 930 F.2d 1056, 1061-62 (3d Cir. 1991).

                                             II.

       The parties dispute which version of the survey Gallup intended to register, but

this issue is a red herring. Under 17 U.S.C. § 408(b)(2), “the material deposited for

registration shall include . . . two complete copies or phonorecords of the best edition.”

The words “material deposited for registration” indicate that the registration attaches to

the material deposited, provided of course that the remaining statutory requirements for



                                              2
registration are satisfied. The Copyright Act imposes no intent requirement, and we are

unaware of any authority that has read one into it. Such a requirement would be

inconsistent with the formalistic nature of the registration process and the forgiveness

courts have traditionally shown toward erroneous applications. See, e.g., Masquerade

Novelty, Inc. v. Unique Indus., Inc., 912 F.2d 663, 667-68 & n.5 (3d Cir. 1990); Nadel &

Sons Toy Corp. v. William Shaland Corp., 657 F. Supp. 133, 136 (S.D.N.Y. 1987); 2

Melville B. Nimmer & David Nimmer, Nimmer on Copyright §§ 7.20[B], 7.21[A]

(2005).

       Gallup clearly satisfied the deposit requirement under these standards. For

purposes of this appeal, it is undisputed that Gallup owned a valid copyright in the 1998

version of the survey. It is also undisputed that Gallup deposited two copies of the 1998

version as part of its application for registration. Under the plain language of 17 U.S.C.

§ 408(b)(2), Gallup satisfied the deposit requirement for any copyright it owned in that

version. The effectiveness of this deposit would not be vitiated even if Kenexa could

show that Gallup had intended to deposit some other work instead.

       Because Gallup is seeking to enforce a copyright in the same work that it

deposited, this case bears little resemblance to the authorities cited by Kenexa. See Coles

v. Wonder, 283 F.3d 798 (6th Cir. 2002); Geoscan, Inc. of Tex. v. Geotrace Techs., Inc.,

226 F.3d 387 (2d Cir. 2000); Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (9th Cir.

1998). In each of those cases, the plaintiff was trying to enforce a copyright in work X



                                             3
but had deposited a copy of work Y. Work Y was either a reconstruction of work X, see

Coles, 283 F.3d at 802; Kodadek, 152 F.3d at 1212, or a later version of work X, see

Geoscan, 226 F.3d at 393. The Court in each case held that the plaintiff’s registration

could not support an infringement action because the work deposited was not a “bona

fide” copy of the work in which the copyright was claimed. See, e.g., Kodadek, 152 F.3d

at 1211. These cases cannot guide our decision because Gallup, unlike the plaintiffs

there, deposited the same work that it now claims was infringed.

       The facts of this case more closely resemble those of Dynamic Solutions, Inc. v.

Planning & Control, Inc., 646 F. Supp. 1329 (S.D.N.Y. 1986). The plaintiff there had

deposited the 1986 versions of two software programs, but its application averred that

they were created and published in 1983 and 1984. The Court found this discrepancy

irrelevant to whether the deposit requirement was satisfied. See id. at 1341. According to

the Court, the relevant fact was that the plaintiffs had deposited “the versions of the

programs which defendants were ‘caught’ using in 1986 and which it asserts were

infringed.” Id. at 1342. In other words, the deposit could support the action for

infringement because the plaintiff had deposited the very work on which the litigation

was based.

       Because Gallup deposited two copies of the 1998 version of the survey with the

Copyright Office, it satisfied the deposit requirement for a registered copyright in that

version. It does not follow, however, that Gallup’s registration was valid. Under 17



                                              4
U.S.C. § 408(a), the registrant must furnish an application and a fee along with the

deposit. Kenexa argues that misrepresentations in Gallup’s application invalidate the

registration and afford an alternative ground for affirmance.

       This Court has held that an otherwise valid registration is not jeopardized by

inadvertent, immaterial errors in an application. See Raquel v. Educ. Mgmt. Corp., 196

F.3d 171, 177 (3d Cir. 1999), cert. granted and judgment vacated on other grounds, 531

U.S. 952 (2000). A misstatement is material if it “might have influenced the Copyright

Office’s decision to issue the registration.” Raquel, 196 F.3d at 177. Significantly, the

Register reviews applications only to determine whether “the material deposited

constitutes copyrightable subject matter and [whether] the other legal and formal

requirements . . . have been met.” 17 U.S.C. § 410(a); see also 2 Nimmer & Nimmer,

supra, § 7.21[A]. In practice, therefore, a misrepresentation is likely to affect the

Register’s decision only if it concerns the copyrightability of the work. E.g.,

Whimsicality, Inc. v. Rubie’s Costume Co., 891 F.2d 452, 456 (2d Cir. 1989).

       The misrepresentations in Gallup’s application were plainly immaterial under these

standards. The survey would have been copyrightable regardless of when it was created

and published, and a certificate of registration would have issued in either case. Indeed, a

certificate did issue after Gallup filed an application for supplementary registration

correcting its initial application. Kenexa’s insinuation that the supplementary registration

might have been denied had the Register examined the application more closely, see



                                              5
Kenexa’s Br. at 37-38, is baseless.

       Although we are troubled by the possibility that Gallup’s misrepresentations may

have been intentional, it is not clear that even knowing misrepresentations can void a

copyright registration where the Register has not relied on them. Kenexa concedes that

“[t]he standard for invalidating a copyright registration in this Circuit is the ‘knowing

failure to advise the Copyright Office of facts which might have led to the rejection of a

registration application.’” Kenexa’s Br. at 25 (quoting Masquerade Novelty, 912 F.2d at

667) (our emphasis); see also Eckes v. Card Prices Update, 736 F.2d 859, 861-62 (2d Cir.

1984) (indicating that the registrant must have omitted “facts which might have

occasioned a rejection of the application” (internal quotation marks omitted)). For the

reasons given above, the Register undoubtedly would have issued the certificate whether

or not Gallup had misrepresented the dates of creation and publication. Gallup’s

misrepresentations thus could not have voided its registration even if they were

knowingly made.

                                             III.

       After careful consideration of the parties’ submissions, we conclude that Gallup

satisfied the deposit requirement for a registered copyright in the 1998 version of the

survey when it deposited a copy of that version with the Copyright Office. We further

conclude that Gallup’s misrepresentations in its application did not invalidate its

registration. The order of the District Court awarding summary judgment to Kenexa is



                                              6
vacated, and this matter is remanded to the District Court for further proceedings.
