                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-9-1999

Raquel v Education Mgmt Corp
Precedential or Non-Precedential:

Docket 98-3321




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Filed November 9, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-3321

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

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

Argued: April 5, 1999

Before: SLOVITER, ALITO and ALARCON,* Circuit Judges

(Filed November 9, 1999)

       Kim M. Watterson (Argued)
       Richard M. Smith
       Matthew H. Meade
       Katarincic & Salmon
       Pittsburgh, PA 15222

        Attorneys for Appellant
_________________________________________________________________

* Hon. Arthur L. Alarcon, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
       Dennis J. Mulvihill
       Thomas J. Farnan (Argued)
       Robb, Leonard & Mulvihill
       Pittsburgh, PA 15219

        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 15222

        Attorneys for Appellees
        Geffen Records Inc. & Nirvana

       Thomas C. Wettach (Argued)
       Gerald J. Iwanejko, Jr.
       Titus & McConomy
       Pittsburgh, PA 15222

        Attorneys for Appellees
        Elias/Savion, Inc. &
        Philip Elias, Individually

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. S 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

                                 2
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. S 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
_________________________________________________________________

1. The complaint, which is not in the appendix, is quoted in the District
Court's first opinion. See Raquel, 955 F. Supp. at 439.

                                3
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.

                               4
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: "[N]o 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. S 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

                                5
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';" id. 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,
"[A]n 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 had a registered
copyright in the Song was not decided. We turn then to
that question, which is central to the District Court's
subject matter jurisdiction in this case.

B.

Although a failure properly to register a work does not
invalidate the copyright itself, it does preclude the
maintenance of an infringement action until such time as
the purported copyright holder obtains a valid registration.
See Arthur Rutenberg Homes, Inc. v. Drew Homes, Inc., 29

                               6
F.3d 1529, 1531-32 (11th Cir. 1994); 17 U.S.C. S 411(a);
Melville B. Nimmer & David Nimmer, 2 Nimmer on
Copyright SS 7.16[A][1], 7.16[B] (1997) [hereinafter Nimmer
& Nimmer].

Raquel contends that its initial registration -- in which it
characterized the nature of the copyrighted work as an
"Audiovisual Work" -- and its supplemental registration --
in which it added description of the nature of the
authorship -- are sufficient to invoke the subject matter
jurisdiction of the federal courts. Raquel presses this
contention on two fronts. First, it urges that its 1995
registration is sufficient, despite its imprecision, to support
an infringement action based upon its Song. Second,
Raquel argues that its performance of the Song is itself a
copyrightable interest, and that its initial and supplemental
registration forms together constitute a valid registration
that would support a lawsuit charging infringement of
Raquel's copyright in the performance of the Song. We
address these arguments in turn.

C.

Raquel contends that its designation of the nature of its
work as an "Audiovisual Work" in its copyright registration
should not bar it from bringing this infringement action for
infringement of the Song because the designation was
merely an inadvertent and immaterial error. In pressing
this argument, Raquel places considerable reliance on our
decision in Masquerade Novelty, Inc. v. Unique Industries,
Inc., 912 F.2d 663 (3d Cir. 1990). In that case, the plaintiff
Masquerade, a manufacturer of novelty masks, claimed
infringement of its copyright in its nose masks (specifically,
pig, elephant and parrot nose masks). The district court
granted summary judgment to the defendant, ruling, inter
alia, that Masquerade had omitted material facts from its
copyright registration. On appeal, the defendant, a
competing seller of nose masks, urged that Masquerade did
not hold valid copyrights because it failed to specify that
the masks were to be worn by humans. It contended that
the omitted information would have led the Copyright Office
to have declined to issue the registrations (apparently on
the assumption that the Register of Copyrights would have

                               7
found the masks to be costumes, which are not
copyrightable).

On appeal, we determined that the supposed omission
was immaterial because the applications identified the
articles as "nose masks." In doing so, we acknowledged that
"[i]t has been consistently held that a plaintiff's knowing
failure to advise the Copyright Office of [material] facts . . .
constitutes grounds for holding the registration invalid and
incapable of supporting an infringement action." Id. at 667.
However, because we concluded that the omission was not
a material one, we held it unnecessary to decide"whether
an inadvertent omission of material information from a
submission to the Copyright Office renders the copyright
unenforceable, deprives the copyright owner of itsS 410(c)
presumption [of validity], or has no legal effect." Id. at 668.
We nonetheless observed in a footnote that the "view that
an inadvertent omission from a registration application will
render a plaintiff's copyright incapable of supporting an
infringement action has not gained acceptance with the
courts," and also stated that "[i]t may be that the correct
approach in situations where there has been a material,
but inadvertent omission, is to deprive the plaintiff of the
benefits of S 410(c) [incontestability after five years] and to
require him to establish the copyrightability of the articles
he claims are being infringed." Id. at 668 n.5.

Hence, our opinion in Masquerade supports the general
proposition that an inadvertent and immaterial
misstatement will not invalidate a copyright registration, a
proposition on which there is broad consensus in the
federal courts. See, e.g., Data Gen. Corp. v. Grumman Sys.
Support Corp., 36 F.3d 1147, 1161 (1st Cir. 1994); Eckes v.
Card Prices Update, 736 F.2d 859, 861-62 (2d Cir. 1984).
Less clear, however, is the effect of a misstatement that is
material but inadvertent. See Data General, 36 F.3d at
1163 ("No court has suggested that a registration premised
in part on an unintentional material error would fail to
satisfy the jurisdictional requirement of Section 411(a).");
Masquerade, 912 F.2d at 668 & n.5. As our discussion
below will demonstrate, however, we need not decide that
question for the purposes of this appeal because, on the
undisputed record before the court, we cannot conclude

                               8
that the misstatement was immaterial and unknowingly
made.

Raquel readily concedes that the designation of the
nature of its work on its 1995 copyright registration form
was inaccurate. It urges, however, that the designation of
the nature of the work as an "Audiovisual Work" was
immaterial and that in any event it was inadvertent and
therefore should not bar jurisdiction over this lawsuit.

In determining the materiality of a misstatement in a
copyright registration, we examine whether the inaccuracy
might have influenced the Copyright Office's decision to
issue the registration. See Data General, 36 F.3d at 1161
("In general, an error is immaterial if its discovery is not
likely to have led the Copyright Office to refuse the
application"); Eckes, 736 F.2d at 861-62 (" `[K]nowing
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' " (quoting
Russ Berrie & Co., Inc. v. Jerry Elsner Co., Inc., 482 F.
Supp. 980, 988 (S.D.N.Y. 1980))).

In this case, the registration identifies the work as an
audiovisual work entitled "Pop Goes the Music," rather than
the kind of work on which the complaint is based-- a song
entitled "Pop Goes the Music." The Copyright Act defines
"Audiovisual works" as "works that consist of a series of
related images which are intrinsically intended to be shown
by the use of machines or devices such as projectors,
viewers, or electronic equipment, together with
accompanying sounds." 17 U.S.C. S 101. One need have no
special expertise in intellectual property law to apprehend
that an audiovisual work is facially very different from a
song, which would fall under the rubric of "musical works,
including any accompanying words," 17 U.S.C. S 102(a)(2).

We conclude that this mischaracterization is material.
Had the Register of Copyrights known that Raquel did not
author the audiovisual work identified in its registration, it

                                9
is likely that this rather fundamental misstatement would
have occasioned the rejection of Raquel's application.2

To be sure, there are numerous cases suggesting that
many kinds of inadvertent and immaterial errors in
copyright registration forms will be excused. Courts have
forgiven plaintiffs for having misidentified the author of a
work, see, e.g., Thomas Wilson & Co. v. Irving J. Dorfman
Co., 433 F.2d 409 (2d Cir. 1970) (listed president of
corporation instead of corporation); Testa v. Janssen, 492
F. Supp. 198 (W.D. Pa. 1980) (listed author's assignee), or
misidentified the owner of the copyright, see Wales Indus.
v. Hasbro Bradley, Inc., 612 F. Supp. 510 (S.D.N.Y. 1985)
(listing as copyright claimant the exclusive licensee). The
leading treatises support this view as well. See, e.g.,
Nimmer & Nimmer S 720[B] at 7-208 ("The courts generally
have been most lenient . . . with respect to any innocent
error contained in an application for a registration
certificate."); 1 Paul Goldstein, Copyright S 3.12.3, at 345
_________________________________________________________________

2. Raquel argues that the Register of Copyrights could not have been
misled by the registration form because a letter from the Copyright Office
dated May 14, 1997 shows the Copyright Office understood Raquel's
1995 registration stated a claim in the "music, lyrics, and arrangement"
of the Song. However, this letter to Raquel's counsel, sent in response to
telephone conversations between Raquel's counsel and the examiner who
signed the letter, was dated nearly two years after the registration was
filed and does not indicate what the Register of Copyrights would have
likely done if all of the relevant facts were presented at the time of the
registration. See App. at 226. In fact, the letter is ambivalent as to the
nature of Raquel's claim. In the letter, the examiner states, "If your
client
owned all rights in the production at the time the original Form PA
application was filed to register the song, you may . . . ," which
suggests
that the Copyright Office was not apprised of the salient fact that Raquel
had not authored the commercial or video. Moreover, this document is
not one that may be considered in a motion-to-dismiss setting. Although
the court may consider, on a motion to dismiss, certain documents that
are outside the pleadings, such as the registration form and
supplemental registration forms expressly relied on in the complaint, see
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 (3d Cir. 1997)
("document integral to or explicitly relied upon in the complaint" may be
considered when deciding motion to dismiss (quoting Shaw v. Digital
Equip. Corp., 82 F.3d 1194, 1220 (1st Cir. 1996)), this letter is not such
a document as it is wholly extraneous to the pleadings.

                               10
(1989) ("Courts have excused innocent errors or omissions
affecting virtually every material aspect of a copyright
registration application.").

However, Raquel has not cited, nor have we found, a case
in which the misstatement to be excused is as fundamental
as the one in this case. Here, Raquel misidentified the
nature of the work in such a way as to suggest an
attempted registration in a work not authored by the
registrant, namely, the commercial advertisements
authored, as the parties agree, by Elias/Savion.3 In all of
the cases excusing immaterial errors the registrant had the
right to the work described in the registration form. Raquel,
however, does not have the right to the audiovisual work
described in the registration form.

Raquel points to Urantia Foundation v. Maaherra, 114
F.3d 955 (9th Cir. 1997), and Harris v. Emus Records Corp.,
734 F.2d 1329 (9th Cir. 1984), as instances where courts
have forgiven registrants for misidentifying a work. We find
both inapposite. Neither involves misidentification of a type
or degree that is equivalent to that presented in the case at
bar. In Urantia, the court considered the validity of a
copyright renewal form in which the applicant referred to
itself as "the proprietor of a work made for hire" rather
than, more accurately, "the proprietor of a composite work."
114 F.3d at 962. The court concluded that the
misidentification of "a particular type of proprietorship" did
not affect the validity of the copyright renewal. Id. at 962.
There was no question as to the fundamental nature of the
work itself, which was in that case a book believed to have
been "authored by celestial beings and transcribed,
complied and collected by mere mortals." Id. at 956. Hence,
the imprecision excused by the court in Urantia was not, as
in the present case, one that presented any likelihood of
confusion as to the work for which copyright protection was
sought.
_________________________________________________________________

3. Raquel relies heavily on the fact that the registration form identified
the "nature of the authorship" as "all music, lyrics, and arrangements"
but we find that this characterization of the nature of the authorship
adds only ambiguity rather than clarity to the registration form. We
cannot conclude that this ambiguity cures the misstatement as to the
nature of the work being registered.

                               11
Nor does the Ninth Circuit's decision in Harris offer
support for Raquel. In Harris, the court determined, as a
"subsidiary issue[ ]," that a registration form incorrectly
identifying singer Emmylou Harris as the author of a work
did not bar Harris's infringement suit where subsequent
transfers resulted in Harris's ownership of the copyright
before suit was instituted and the defendant showed no
prejudice from the misidentification of the author. 734 F.2d
at 1335. Thus, Harris, like Urantia, did not involve a
registration form that purported to register a copyright in a
work other than the one on which the infringement suit
was based.

Consequently, despite the generally accommodating
stance taken where the misstatement in the registration
form does not go to the nature of the work for which
protection is sought, we find in this case a serious
imprecision in identifying the work itself. A copyright
registration that misidentifies the nature of a copyrighted
work fails to give proper notice to the Register of Copyrights
regarding the nature of the intellectual property for which
protection is sought. As a result, it is not unreasonable to
demand some accuracy on this matter.

D.

We also cannot find on this record that the misstatement
in the registration form was an innocent error. Defendants
argue, and we agree, that there is no record evidence that
the misstatement was inadvertent. It would be difficult to
draw the inference of inadvertence from this record.
Counsel for Raquel (who is not counsel in this appeal)
executed the registration form on Raquel's behalf on July
18, 1995, denoting the nature of the work as an
"Audiovisual Work." The same attorney thenfiled the first
infringement action on October 11, 1995, identifying the
work forming the basis of Raquel's infringement claim as
the commercial and the video, both clearly audiovisual
works. See Raquel, 955 F. Supp. at 440. It is difficult to
conclude that an attorney who executed a registration form
for an "Audiovisual Work" and then proceeded to file a
complaint alleging that the defendants infringed Raquel's

                                12
copyright in audiovisual works intended the copyright to
cover the Song.

Furthermore, as the complaint alleges, the Song was
authored in 1990, although the video and commercials
were created in 1991. The registration form identifies the
year in which creation of the work was completed as 1991,
the year in which the video and commercials were
produced, which further suggests that the work for which
registration was sought in 1995 was the video and
commercials, as the registration form itself indicated, rather
than the Song itself. Nor did Raquel, after the dismissal of
its first suit, file a new copyright registration form that
correctly identified the nature of the work for which it
sought copyright as a musical work or song before
instituting an infringement action based upon the Song.

Based on the information on record, we cannot conclude
that the inaccuracy in Raquel's 1995 registration was either
immaterial or inadvertent. Raquel filed a registration form
suggesting authorship of an audiovisual work in which it
had no copyrightable interest. Although we need not go as
far as did the court in Whimsicality, Inc. v. Rubie's Costume
Co., 891 F.2d 452 (2d Cir. 1989), which labeled as "fraud
on the Copyright Office" a registration for what proved to be
plaintiff's Halloween costumes (which are not entitled to
copyright protection) which plaintiff had described on its
application as "soft sculptures" (which are entitled to
copyright protection),4 the fact remains that Raquel filed a
registration form suggesting authorship of an audiovisual
work in which it had no copyrightable interest. There is a
_________________________________________________________________

4. On a subsequent Rule 60(b)(3) motion, the District Court in
Whimsicality, Inc. v. Rubie's Costume Company, 836 F. Supp. 112
(E.D.N.Y. 1993), considered an affidavit by the section head of the
Copyright Office in which he stated that the "description of the works as
a soft sculpture did not and does not constitute a representation to the
Copyright Office that the works in question have no useful function [the
issue in that case]." Id. at 115. Based on that affidavit, the court
reversed its earlier position and held the Copyright Office had not been
misled. The letter from a copyright examiner submitted by Raquel in this
case as part of its objections to the magistrate judge's initial report
and
recommendation, see note 2 supra, is not comparable to the affidavit
submitted in Whimsicality.

                               13
fundamental difference between an audiovisual work and a
song. We conclude therefore that the 1995 copyright
registration could not serve as the jurisdictional basis for
this suit notwithstanding that this complaint, unlike the
first, sues for infringement of the Song.

E.

Raquel's second argument is that it has, by means of its
supplemental registration, a registered copyright in
Raquel's performance sufficient to invoke the court's
subject matter jurisdiction on a claim that the defendants
infringed its copyright in that performance.

There is no doubt that one can have a copyrightable
interest in a particular performance of a song. See, e.g.,
Woods v. Bourne Co., 60 F.3d 978, 983 (2d Cir. 1995)
("[P]erformances include television broadcasts of the Song
as captured in movies and television programs and radio
broadcasts of the Song as captured in sound recordings.");
Daboub v. Gibbons, 42 F.3d 285, 288 (5th Cir. 1995) ("The
distinction may be summed up as the difference between a
copyright in a Cole Porter song and a copyright in Frank
Sinatra's performance of that song. The former would be a
musical work copyright and the latter would be a sound
recording copyright, although both may be embodied in the
same phonorecord." (quoting 1 M. Nimmer, Copyright
S 4.06, p. 4-34 n.1)). However, once again Raquel founders
because it has not demonstrated that it has registered a
copyright in its performance so as to satisfy the
jurisdictional requirement of 17 U.S.C. S 411(a).

Raquel's interest in its performance was not decided in
the first action. The court did note that Raquel had not
applied for nor received a copyright of its performance of
the Song and stated that it would make no determination
regarding Raquel's right to copyright its performance.
Raquel, 955 F. Supp. at 440. Assuming that Raquel has a
copyrightable interest in the performance of the Song as
captured on the video, we must decide whether Raquel's
supplemental registration is sufficient to register a
copyright in the performance, when the initial registration
was for an "Audiovisual Work," and, if so, whether Raquel's

                                14
complaint has alleged an infringement of its performance of
its Song.

Raquel's attempt to use its supplemental registration as
a basis for asserting a claim that the defendants infringed
its copyright in its performance rests on an erroneous
understanding of the function of supplemental registration.
The applicable regulation governing supplementary
registration states:

       (2) Supplementary registration may be made either to
       correct or to amplify the information in a basic
       registration. For the purposes of this section:

       (i) A "correction" is appropriate if informa tion in the
       basic registration was incorrect at the time that basic
       registration was made, and the error is not one that
       the Copyright Office itself should have recognized;

       (ii) An amplification is appropriate:

        (A) To supplement or clarify the information t hat
       was required by the application for the basic
       registration and should have been provided, such
       as the identity of a co-author or co-claimant, but
       was omitted at the time the basic registration was
       made, or

        (B) To reflect changes in facts, other than those
       relating to transfer, license, or ownership of rights
       in the work, that have occurred since the basic
       registration was made.

       (iii) Supplementary registration is not appropriat e:

        (A) As an amplification, to reflect a chan ge in
       ownership that occurred on or after the effective
       date of the basic registration or to reflect the
       division, allocation, licensing or transfer of rights
       in a work; or

        (B) To correct errors in statements or notices on
       the copies of phonorecords of a work, or to reflect
       changes in the content of a work[.]

37 C.F.R. S 201.5(b).

                               15
Raquel's effort to use its supplementary registration to
change the nature of the work as set forth in its original
registration does not neatly fit into the concepts of
"correction" or "amplification" as used in the regulation. By
filing the supplemental registration, Raquel did not seek to
cure "incorrect information" in the initial registration,
"supplement or clarify" omitted information, or "reflect
changes in facts." Rather, by means of the supplemental
registration, Raquel sought to change the nature of the
work for which a copyright is claimed. This attempt is more
akin to the prohibited use of supplemental registration set
forth in S 201.5(b)(2)(iii)(B), viz., "to reflect changes in the
content of a work."

What Raquel urges is essentially that the supplemental
registration should supersede the original registration. That
is, rather than the "audiovisual work" for which it had
registered a copyright, Raquel sought to copyright a
"performance" through its supplemental registration. That
such a use of the supplemental registration process is at
odds with the intent of the regulation is underscored by the
statutory provision enabling the regulation, 17 U.S.C.
S 408(d). That section permits the promulgation of
regulations allowing authors to use supplemental
registration "to correct an error in a copyright registration
or to amplify the information given in a registration" but
clearly states: "The information contained in a
supplementary registration augments but does not
supersede that contained in the earlier registration."

Moreover, even if we were to assume arguendo that
Raquel's supplemental registration is a sufficient ground for
jurisdiction in an action for infringement of its putative
copyright in the performance of the Song, Raquel's
argument is undone by the wording of its complaint.
Determination whether an action arises under federal
copyright law is made by reference to the statement of the
claim in the complaint. See Vestron, Inc. v. Home Box Office,
Inc., 839 F.2d 1380, 1381 (9th Cir. 1988). "Where there is
a fatal flaw on the face of a complaint that purports to
assert an infringement action, the suit should be dismissed
for lack of subject matter jurisdiction." Id. at 1382.

                               16
Raquel's complaint is barren of any allegation of an
infringement of a copyright in Raquel's performance of the
Song. To the contrary, the complaint alleges infringement of
the Song itself, in which, as we here hold, Raquel has not
registered a copyright. In paragraph 13 Raquel states that
it "created the music, lyrics and arrangements for an
original composition entitled `Pop Goes the Music'
(hereinafter `Plaintiff's Work')." App. at 14. In paragraph 44,
Raquel refers to the use of the "Plaintiff's Work" by EMC in
advertising after the end of the three year period of the
licensing agreement without permission from Raquel
thereby infringing upon its copyright. App. at 20. Raquel
states in Paragraph 53 that defendants, by virtue of
entering into a "Videoshow Agreement" with Geffen and
Nirvana, committed a further act of infringement of
"Plaintiff's Work." App. at 22.

In short, throughout the counts of the complaint, Raquel
alleges infringement of "Plaintiff's Work," which paragraph
13 defines as the music, lyrics, and arrangements of its
Song, not its performance. Although the complaint includes
among its factual allegations the averment that Raquel is
the sole proprietor of the Song "and Plaintiff's performance
of the song in an audiovisual work," App. at 18, no count
of the complaint alleges a violation of that interest. Hence,
even on a charitable reading of the complaint, it is not
possible to construe it as alleging an infringement of
Raquel's performance as distinct from its Song. Nor could
it amend to so allege, as it has failed to perfect a copyright
in its performance.

III.

We conclude that Raquel does not have a registered
copyright in either its Song or the performance of its Song
that would entitle it to bring suit. Accordingly, we will
affirm the District Court's dismissal of this action for lack
of subject matter jurisdiction.

                               17
ALITO, Circuit Judge, dissenting:

I believe that the majority's decision elevates form over
substance and works a forfeiture of a valid copyright
because of a misstatement that the trial court had already
labeled inadvertent. I dissent for two reasons. First, the
majority ignores the prior findings and holding of the
District Court regarding the validity of Raquel's copyright in
its song "Pop Goes the Music." These determinations were
clearly the law of the case and entitled to deference.
Second, as a matter of substantive law, Raquel's
registration should not be deemed invalid merely because of
an inadvertent mistake which caused no prejudice to the
defendants in this action. There is no evidence in the record
that compels a finding of fraudulent intent, and the
majority's resolution of factually ambiguous issues against
Raquel is inappropriate in the context of a motion to
dismiss on the pleadings.

I.

The District Court's initial determination that Raquel's
1995 registration was a valid registration of the song was
clearly the law of the case, and the District Court's failure,
without explanation, to adhere to its earlier determination
unfairly prejudiced Raquel and was in error. The majority
compounds this error by itself disregarding this preclusive
finding.

The District Court, in its 1996 judgment, made clear and
specific findings and concluded that Raquel had validly
registered its copyright in the music and lyrics of the song.
Because Raquel identified the title of the work as"Pop Goes
the Music" and the nature of authorship as "[a]ll music &
lyrics & arrangement," the District Court found that "it is
sufficiently clear that Raquel intended to obtain a copyright
in its song, `Pop Goes the Music.' " Raquel v. Education
Mgmt. Corp., 955 F. Supp. 433, 439 (W.D. Pa. 1996).
Although the Registration incorrectly described the nature
of the work as an "Audiovisual Work," the court explicitly
held that "the term `Audiovisual Work' was inadvertently
included in the copyright application and, as a
consequence, it did not invalidate the copyright of the music

                               18
and lyrics to the song, `Pop Goes the Music.' " Id. (emphasis
added). The District Court went on to hold that"because
Raquel had a copyrightable interest in the song`Pop Goes
the Music' it did not knowingly fail to advise the copyright
office of facts which might have led to the rejection of the
registration application." Id. at 440. Although the District
Court proceeded to dismiss the case for lack of jurisdiction,
this was simply because Raquel's complaint referred only to
the full-length music video (in which it held no copyright),
and not to the song itself (in which it clearly did). See id.
Indeed, as the District Court noted in its Order of January
20, 1998:

       [t]he previous dismissal . . . [was] not based upon a
       finding that plaintiff's Certificate of Copyright
       Registration was invalid; to the contrary, Magistrate
       Judge Caiazza, as approved by this Court, found that
       certificate to be valid, despite some inadvertent errors
       in plaintiff's application. The dismissal was, rather,
       based upon plaintiff's failure to allege in the complaint
       any infringement of the copyrighted song, as opposed
       to the audiovisual material containing the song which
       plaintiff had not copyrighted."

App. 230 (emphasis in original). The District Court thus
made three important rulings in the 1996 action, which
became the law of the case: (1) that Raquel had intended to
register its copyright in the song and not in the video; (2)
that the inclusion of the term "Audiovisual Work" in the
registration was merely inadvertent; and (3) that therefore,
the registration was valid as to the music and lyrics of the
song, if not to the video itself.

The majority attempts to brush aside these clear and
binding determinations by characterizing them as"at most
dictum." However, the District Court's findings in regard to
the copyrights of the music and lyrics were essential to an
important part of its judgment on the merits -- its denial of
Elias/Savon's motion for attorney's fees. Elias/Savon had
claimed that "an award of attorney's fees is appropriate . . .
since the Plaintiff and its counsel had full knowledge of the
falsity of the statement made to the copyright office at the
time the copyright registration was filed." Raquel, 955 F.
Supp. at 437. The Court was thus required to make a

                               19
concrete finding on the inadvertence issue -- with which
the issue of the copyright's validity was inextricably
intertwined -- as a predicate to resolving the attorney's fees
question. Significantly, the defendants never appealed the
Court's denial of attorney's fees, or its predicatefindings on
inadvertence and validity.

The law of the case doctrine " `expresses the practice of
courts generally to refuse to reopen what has been
decided.' " Williams v. Runyon, 130 F.3d 568, 573 (3d Cir.
1997) (quoting Messenger v. Anderson, 225 U.S. 436, 444
(1912)). Law of the case restrictions apply to "subsequent
rulings by the same judge in the same case or a closely
related one." Casey v. Planned Parenthood of Southeastern
Pennsylvania, 14 F.3d 848, 856 n.11 (3d Cir. 1994).
Although a trial judge has the power to reconsider an
earlier decision, its authority to do so is limited by two
prudential considerations: "First, the court must explain on
the record the reasoning behind its decision to reconsider
the prior ruling. Second, the court must take appropriate
steps so that the parties are not prejudiced by reliance on
the prior ruling." Williams, 130 F.3d at 573.

In the present case, neither the District Court's Order nor
the Magistrate Judge's report presents any explanation of
the decision to ignore the District Court's earlierfinding
that the registration was valid. Moreover, Raquel was
clearly prejudiced by the court's abrupt and unanticipated
about-face on this question. After the District Court
dismissed the first action without prejudice, Raquel read
the Court's decision as any reasonable plaintiff would --
that although its complaint had been defective, it
nevertheless had a valid registered copyright in the song.1
In reliance on the District Court's holding, itfiled a new
complaint which cured the pleading defects identified by
the Court, but failed to reexamine the certificate of
registration, which the Court had already determined was
_________________________________________________________________

1. Even the majority concedes that "[t]here 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.' "

                               20
capable of supporting an infringement claim based on the
song. It was not until the District Court's reconsideration of
the defendant's motion to dismiss in the second action that
Raquel had any indication that the Court's earlier ruling
was not what it seemed to be. However, by this point, the
District Court had dismissed Racquel's claims with
prejudice.

Absent the District Court's assurances on the matter,
Raquel could have filed a supplementary registration under
17 U.S.C. S 408(d) in order to perfect its registered
copyright in the song. Because the District Court, by its
earlier ruling and expression, did not alert Raquel to its
concern about the validity of the copyright in the song,
Raquel was undeniably prejudiced. See Williams, 130 F.3d
at 573. The District Court was thus foreclosed from
revisiting its earlier, unambiguous ruling that Raquel had
validly registered its copyright in the song's music and
lyrics.

Collateral estoppel principles would also support this
conclusion. The collateral estoppel doctrine prevents the
relitigation of issues that have been decided in a previous
action. Under the law of this Circuit, four factors must be
met before the application of collateral estoppel is
appropriate: (1) the previous determination was necessary
to the decision; (2) the identical issue was previously
litigated; (3) the issue was actually decided in a decision
that was final, valid, and on the merits; and (4) the party
being precluded from relitigating the issue was adequately
represented in the previous action. See Hawksbill Sea
Turtle v. Federal Emergency Mgmt. Agency, 126 F.3d 461,
475 (3d Cir. 1997). In the present case, the District Court
made explicit findings as to inadvertence and validity in its
decision dismissing the earlier action and refusing
Elias/Savon's motion for attorney's fees. Defendants are
thus precluded from relitigating these issues, and the
majority has erred in holding otherwise.

II.

Even if the validity of the registration had not been
foreclosed by the District Court's earlier ruling, Raquel's

                                21
registration was clearly sufficient, as a substantive matter,
to perfect its copyright interest in the music and lyrics of
the song.

"The case law is overwhelming that inadvertent mistakes
on registration certificates do not . . . bar infringement
actions, unless the alleged infringer has relied to its
detriment on the mistake, or the claimant intended to
defraud the Copyright Office by making the misstatement."
Urantia Found. v. Maaherra, 114 F.3d 955, 963 (9th Cir.
1997).2 See also Masquerade Novelty v. Unique Indus., Inc.,
912 F.2d 662, 668 n.5 (3d Cir. 1990) ("Unique's view that
an inadvertent omission from a registration application will
render a plaintiff's copyright incapable of supporting an
infringement action has not gained acceptance with the
courts."); Data Gen. Corp. v. Grumman Sys. Support Corp.,
36 F.3d 1147, 1161-62 (1st Cir. 1994) ("It is well
established that immaterial, inadvertent, errors in an
application for copyright registration do not jeopardize the
validity of the registration."); Eckes v. Card Prices Update,
736 F.2d 859, 861-62 (2d Cir. 1984) ("Only 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' ") (quoting Russ
Berrie & Co., Inc. v. Jerry Elsner Co., Inc., 482 F. Supp.
980, 988 (S.D.N.Y. 1980)); 2 Melville B. Nimmer & David
Nimmer, Nimmer on Copyright S 7.20[B] at 7-208 ("a
misstatement . . . in the registration certificate, if
unaccompanied by fraud, should neither invalidate the
copyright nor render the registration certificate incapable of
supporting an infringement action").

The majority attempts to distinguish this long line of
cases by pointing to the fact that Raquel's registration
misidentified the nature of the work in question. This
argument mischaracterizes the case law. No court of
appeals has ever suggested that an inadvertent error in a
registration statement -- even an error as to the nature of
the work -- can bar an infringement action where the work
_________________________________________________________________

2. Although the majority attempts to distinguish Urantia on its facts, the
rule announced in Urantia -- and seemingly not disputed by the majority
-- clearly covers the facts of the case at bar.

                               22
would have been copyrightable had the registration
statement contained a correct statement of facts. See
Masquerade Novelty, 912 F.2d at 668 n.5.3 See also 2
Nimmer & Nimmer S 7.20[B] at 7-208 n.19 (collecting
cases). Indeed, in Baron v. Leo Feist, Inc., 173 F.2d 288 (2d
Cir. 1949), the Second Circuit dealt with precisely the issue
of misidentification of the nature of a copyrighted work in
its registration. In Feist, the plaintiff's registration
certificate referred only to the arrangement of the subject
song. Nevertheless, the Second Circuit held that the
registration was sufficient to maintain an action based on
infringement of the song's melody because there was no
contention that the defendants were "misled by the
certificate of registration." Id. at 290.

In the present case, there is no dispute that Raquel's
interest in the music and lyrics to the song were
copyrightable, or that the registration would have been
valid had it correctly stated the nature of the subject work.
Nor is there any intimation that the defendants were at all
prejudiced by the error in the registration. Clearly, the
defendants in this suit, like those in Feist, were not misled
by the registration as to the scope of the protected work. In
light of these considerations, Raquel's inadvertent error
cannot be grounds for dismissing its suit for lack of subject
matter jurisdiction.

III.

The majority attempts to bolster its holding by making its
own factual finding that Raquel committed a fraud on the
Copyright Office. It grounds this argument in its assertion
that "[i]t is difficult to conclude that an attorney who
executed a registration form for an `Audiovisual Work' and
_________________________________________________________________

3. In dictum, the Masquerade Novelty Court did suggest that "[i]t may be
that the correct approach in situations where there has been a material,
but inadvertent omission, is to deprive the plaintiff of the benefits of
S 410(c) and to require him to establish the copyrightability of the
articles he claims are being infringed." 912 F.2d at 688 n.5. Even under
this somewhat more stringent standard, Raquel would be entitled to
reversal of the District Court's dismissal and an opportunity to prove
copyrightability before that court.

                               23
then proceeded to file a complaint alleging that the
defendants infringed Raquel's copyright in audiovisual
works intended the copyright to cover the song." 4

I believe that the majority, in focusing singularly on the
use of the term "Audiovisual Work," has ignored the array
of evidence in the record that supports a finding of
inadvertence. In its 1995 copyright application, Raquel
properly identified the title of the work as "Pop Goes The
Music" -- not as "Before the Crowd Roars," the title of the
commercial. App. 48. In the same application, Raquel
identified the nature of its authorship as "[a]ll music &
lyrics & arrangements" -- a clear indication of its intent to
register the song and not the video. App. 48, 50. Moreover,
Raquel's copyright counsel, Edward C. Terreri, stated under
oath that the copyright application was filed in good faith
"with no intent to seek any greater rights for RAQUEL than
those to which RAQUEL is entitled," Raquel, 955 F. Supp.
433, 439 n.1 (quoting Terreri Declaration), and that he "had
no intent to defraud the Copyright Office . . . or anyone else
in connection with attempts to obtain copyright protection
for Raquel." App. 186. These facts led the District Court
itself to hold (in my opinion correctly) that the inclusion of
the term "Audiovisual Work" was merely an inadvertent
error. See Part I, supra.

The fragments of evidence that the majority does
assemble do not support, much less compel, a finding of
advertence or fraudulent intent.5 The mere inclusion of the
term "audiovisual work" in the registration and original
_________________________________________________________________

4. The majority's reference to Whimsicality, Inc. v. Rubie's Costume Co.,
891 F.2d 452 (2d Cir. 1989) is inapposite. First, Whimsicality concerned
a motion for summary judgement, not a motion to dismiss. A factual
finding of fraudulent intent is simply inappropriate at the pleadings
stage. Moreover, the judgment of the Whimsicality court was later
vacated in light of an affidavit from the Copyright Office stating that it
had not, in fact, been misled by Whimsicality's registration statement.
See Whimsicality, Inc. v. Rubie's Costume Co., Inc., 836 F. Supp. 112
(E.D.N.Y. 1993). Indeed, the facts of the Whimsicality case should serve
to caution this Court against making hasty findings of bad faith before
the record below has been fully established.

5. The majority claims that it need not go so far as to find "fraud on the
Copyright Office" in order to nullify Raquel's copyright. This is a
distinction without a difference: the majority's findings of advertence
and
materiality are, in substance, a finding of fraud. See Whimsicality, Inc.
v.
Rubie's Costume Co., Inc., 836 F. Supp. 112, 118 (E.D.N.Y. 1993) ("two
elements are required to find [copyright fraud]: an intent to mislead and
behavior which would be objectively likely to mislead").

                               24
complaint may simply indicate a confusion on the part of
counsel arising from the fact that the song Raquel intended
to copyright was fixed on the soundtrack of a videotape.6
Raquel's failure to amend the registration as to the nature
of the work similarly evinces no fraudulent intent, but
merely a reasonable reliance on the District Court's 1996
holding that it had already validly registered its copyright in
the music and lyrics of the song. In any event, the
majority's resolution of the factually ambiguous question of
advertence against Raquel at the pleading stage violates the
basic principle that, for purposes of a motion to dismiss,
the complaint must be viewed in the light most favorable to
the plaintiff, and all well-pleaded factual allegations taken
as true. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

IV.

For these reasons, I would conclude that Raquel does
have a registered copyright in the song "Pop Goes the
Music" that entitles it to bring suit, and I respectfully
dissent.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

6. Raquel's copyright counsel Edward C. Terreri stated under oath that
"I described the media on which Raquel performed the Song as
`audiovisual' because that seemed logical and also that decision was
concurred in by a specialist in the Copyright Office with whom I
communicated." App. 187-88 (emphasis added).

                               25
