First Circuit Stays on the Fence Regarding Application Versus Registration Approach

McDermott Will & Emery

Alicea v. Machete Music

Once again failing to choose a side in the application versus registration approach, the U.S. Court of Appeals for the First Circuit upheld the district court’s finding that plaintiffs failed to meet the § 411 requirement that the relevant copyright interest had not been registered with the Copyright Office, notwithstanding that the copyright had been applied for but not yet accepted.  Alicea v. Machete Music, Case No. 12-1548 (1st Cir., Mar. 17, 2014) (Howard, J.).

The plaintiffs are Massachusetts-based producers of “reggaeton music,” a genre originating in Puerto Rico from diverse origins, including reggae, hip hop, salsa and meringue.  The lawsuit concerns songs released on an album distributed by the defendant that allegedly infringed the plaintiffs’ copyrights.  Two months after filing suit in the district court, the plaintiffs registered copyrights in the sound recordings of four songs, each of which had numerous composers and vocalists; seven months later the plaintiffs registered three additional songs.  Two years later, the Copyright Office still had yet to determine if the deposited recordings, while not the original recordings on which the plaintiffs had worked, were nevertheless acceptable for registration purposes.  The district court granted a motion for summary judgment finding that the plaintiffs had not satisfied the registration precondition of § 411(a), having “neither obtained registration certificates for the compilations nor even having shown that they had submitted all the necessary application materials for registration.”

The 1st Circuit acknowledged that courts are split on “whether the registration requirement is satisfied at the time the copyright holder’s application is received by the Copyright Office (the ‘application approach’) or at the time the office acts on the application and issues a certificate of registration (the ‘registration approach’).”  The court went on to dodge the question, finding that “[o]nce again, we need not decide whether the application approach or the registration approach should govern, as we conclude that the defendants were entitled to summary judgment under either approach.”  The court found that there was a lack of evidence as to whether the plaintiffs had met the requirements for an application and that there was no doubt the copyrights had not been registered.  Alicea appealed.

The court noted that “[o]ver a century ago, Mark Twain lamented ‘[o]nly one thing is impossible for God: to find any sense in any copyright law on the planet.’  We fear that Twain’s deity would fare little better with the tangled skein of copyright and contractual claims presented by plaintiffs in this case.”


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