                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-4268
                                      ___________

                                  DALE D. KUNKEL,
                                                 Appellant
                                         v.

          EUGENE S. JASIN; SAUCON VALLEY CUSTOM HOMES, INC.
                  ____________________________________

                     On Appeal from the United States District Court
               for the Eastern District of Eastern District of Pennsylvania
                          (D.C. Civil Action No. 09-cv-00371)
                     District Judge: Honorable J. William Ditter, Jr.
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  March 24, 2011
                Before: SLOVITER, FISHER and WEIS, Circuit Judges

                             (Opinion filed: March 29, 2011)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM.

              Dale D. Kunkel appeals an order of the United States District Court for the

Eastern District of Pennsylvania granting summary judgment in favor of the defendants

in this copyright infringement action. For the following reasons, we will affirm.
       Because the parties are familiar with the background, we will present it here only

in summary. Kunkel claims that he created certain architectural designs in the 1990s and

that the defendants, Saucon Valley Custom Homes, Inc., and its president, Eugene S.

Jasin (collectively “SVCH”), used those designs without permission in the construction

of homes. In November 2001, Kunkel filed for bankruptcy. See In re: Kunkel, No. 01-

25282 (Bankr. E.D. Pa.). He did not list the architectural designs on his Schedule B

personal property form. The bankruptcy proceeding was closed in 2006. Meanwhile,

Kunkel registered copyrights in the designs on February 13, 2003, May 18, 2007,

September 11, 2007, and October 16, 2007.

              In 2007, Kunkel filed an action against SVCH, attempting to assert claims

based on the registered copyrights. The District Court granted SVCH‟s motion for

summary judgment, holding that Kunkel‟s failure to include the designs on his Schedule

B meant that they remained part of the bankruptcy estate, that the bankruptcy trustee was

the real party in interest, and that Kunkel therefore lacked standing to recover for the

alleged infringement of his copyrights. See Kunkel v. Jasin, No. 07-1241, 2007 WL

2407293 (E.D. Pa. Aug. 21, 2007). Rather than appeal, Kunkel moved to reopen his

bankruptcy case. The Bankruptcy Court granted the motion and permitted Kunkel to

amend his Schedule B to include the designs. Ultimately, on January 24, 2008, the

Bankruptcy Court ordered that the designs be abandoned to Kunkel.

              Kunkel filed the present copyright infringement action in January 2009.

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SVCH filed a motion for summary judgment, alleging that Kunkel‟s registrations of the

architectural designs were invalid because, at the time of those registrations, the designs

were the property of the bankruptcy estate. The District Court agreed and granted the

motion for summary judgment. Kunkel filed a motion for reconsideration, which the

District Court denied. Kunkel filed a timely notice of appeal.

              We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review

over an order granting a motion for summary judgment. See Gallo v. City of

Philadelphia, 161 F.3d 217, 221 (3d Cir. 1998). A grant of summary judgment will be

affirmed if our review reveals that “there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)

(amended Dec. 1, 2010). We review the facts in the light most favorable to the party

against whom summary judgment was entered. See Coolspring Stone Supply, Inc. v.

American States Life Ins. Co., 10 F.3d 144, 146 (3d Cir. 1993).

              The Copyright Act provides that copyright ownership “vests initially in the

author or authors of the work.” 17 U.S.C. § 201(a). Copyright infringement is

established if the plaintiff proves that he owned the copyrighted work and that the

copyrighted work was copied by the defendant. See Masquerade Novelty, Inc. v. Unique

Industries, Inc., 912 F.2d 663, 667 (3d Cir. 1990). Pursuant to the Copyright Act, “no

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

                                             3
this title.” 17 U.S.C. § 411(a). In addition, only “the owner of copyright or of any

exclusive right in the work may obtain registration of the copyright claim . . . .”1 17

U.S.C. § 408(a); In re World Auxiliary Power Co., 303 F.3d 1120, 1126 (9th Cir. 2002);

Arthur Rutenberg Homes, Inc. v. Drew Homes, Inc., 29 F.3d 1529, 1532 (11th Cir.

1994). We have 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. Indeed, the

“knowing failure to advise the Copyright Office of facts which might have occasioned a

rejection of the application constitute[s] reason for holding the registration invalid and

thus incapable of supporting an infringement action.” Eckes v. Card Prices Update, 736

F.2d 859, 861-62 (2d Cir. 1984) (quoting Russ Berrie & Co. v. Jerry Elsner Co., 482 F.

Supp. 980, 988 (S.D.N.Y.1980)).

              On the copyright registration forms, Kunkel indicated that he owned the

architectural designs. Kunkel submitted each of the registration forms between the filing

of his bankruptcy petition in November 2001 and the Bankruptcy Court‟s January 2008

order directing that the designs be abandoned to Kunkel. During that period, the designs

1
 Under the applicable regulation, “[a]n application for copyright registration may be
submitted by any author or other copyright claimant of a work, or the owner of any
exclusive right in a work, or the duly authorized agent of any such author, other claimant,
or owner.” 37 C.F.R. § 202.3(c)(1).
                                              4
were the property of the bankruptcy estate. This is because, “[a]s a general matter, upon

the filing of a petition for bankruptcy, „all legal or equitable interests of the debtor in

property‟ become the property of the bankruptcy estate and will be distributed to the

debtor‟s creditors.” Rousey v. Jacoway, 544 U.S. 320, 325 (2005) (quoting 11 U.S.C.

§ 541(a)(1). The bankruptcy estate includes assets that a debtor fails to schedule. See

Hutchins v. IRS, 67 F.3d 40, 43 (3d Cir. 1995). Furthermore, the bankruptcy estate can

encompass the debtor‟s intellectual property, such as interests in copyrights. See United

States v. Inslaw, Inc., 932 F.2d 1467, 1471 (D.C. Cir. 1991).

               Because the bankruptcy estate, not Kunkel, owned the designs at the time

that Kunkel registered them with the Copyright Office, those registrations are invalid.

Cf. Raquel, 196 F.3d at 177 (“Had the Register of Copyrights known that Raquel did not

author the audiovisual work identified in its registration, it is likely that this rather

fundamental misstatement would have occasioned the rejection of Raquel‟s

application.”). Without valid registrations, Kunkel cannot maintain a copyright

infringement action against SVCH. Apparently conceding that he did not own the

copyrights, Kunkel asserts that he “was legally entitled to register the copyrights as the

author[,] which had no effect on the ownership rights of the bankruptcy estate.” In

support of this argument, Kunkel notes that he checked a box on the registration form

indicating that he was the “author” of the work, rather than the box designated for use by

the “owner of exclusive right[s].” For purposes of this case, however, the distinction

                                                5
between an “author” and an “owner” is not relevant. What is critical is that Kunkel did

not have the right to register the copyrights at the time the registrations were submitted to

the Copyright Office.

              Kunkel also relies on the theory that, upon abandonment of an asset that

was part of a bankruptcy estate, the property revests in the debtor, who is treated as

having possessed the property continuously. See In re Gravure Paper & Board Corp.,

234 F.2d 928, 930-31 (3d Cir. 1956). Thus, according to Kunkel, because his “interest in

the copyrights and architectural plans revert[ed] back to [him] as if the bankruptcy had

never been filed and [he] is to be treated as if they had remained with him at all times,”

the “copyright registrations are and have been in full force and effect since the time they

were obtained . . . .” We agree with the District Court‟s refusal to apply the doctrine of

“relation back” here, however. Kunkel failed to include the copyrights on the appropriate

bankruptcy schedule, certified to the Copyright Office that he owned the copyrights when

in fact they belonged to the bankruptcy estate, and belatedly regained possession of the

copyrights only by seeking reopening of his bankruptcy case. See Wallace v. Lawrence

Warehouse Co., 338 F.2d 392, 394 n.1 (9th Cir. 1964) (“[Relation back] is a fiction, and

a fiction is but a convenient device, invented by courts to aid them in achieving a just

result. It is not a categorical imperative, to be blindly followed to a result that is

unjust.”). Under these circumstances, we believe that the District Court properly granted

summary judgment in favor of SVCH.

                                               6
For the foregoing reasons, we will affirm the judgment of the District Court.




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