Case 1:06-cv-02770-DLI-RLM Document 18 Filed 07/11/07 Page 1 of 15 PageID #: 645
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`U2 HOME ENTERTAINMENT, INC.,
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` OPINION AND ORDER
` 06-CV-02770 (DLI) (RLM)
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`::
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`Plaintiff,
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`-against-
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`:
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`KYLIN TV, INC., NEULION, INC.,
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`FALCONSTAR, INC. and
`TRANSVIDEO INTERNATIONAL, LTD., :
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`Defendants.
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`DORA L. IRIZARRY, U.S. District Judge:
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`On June 2, 2006, plaintiff U2 Home Entertainment, Inc. (“U2") brought suit against
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`defendants Kylin TV, Inc. (“Kylin”), Neulion, Inc. (“Neulion”), Falconstar, Inc. (“Falconstar”), and
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`Transvideo International, Ltd. (“Transvideo”) (collectively, “defendants”), claiming that they had
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`infringed on plaintiff’s alleged exclusive right to publicly perform the twenty-five Asian language
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`films listed in the complaint. In lieu of an answer, defendants jointly filed a motion to dismiss the
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`complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) on July 31, 2006. On
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`November 28, 2006, plaintiff filed a letter motion seeking a premotion conference on its proposed
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`motion for a preliminary injunction. The court granted plaintiff’s request, and a pre-motion
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`conference was held on January 11, 2007. However, by letter dated February 22, 2007, plaintiff
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`withdrew its motion for a preliminary injunction. For the reasons set forth below, defendants’
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`motion to dismiss is denied.
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`1
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`Case 1:06-cv-02770-DLI-RLM Document 18 Filed 07/11/07 Page 2 of 15 PageID #: 646
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`Background
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`Plaintiff is a California corporation doing business as Century Home Entertainment, New
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`Image Audio & Video and Tai Seng Video Marketing. (Compl. ¶ 2.) U2 claims to have the
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`exclusive authority to publicly perform in the United States certain Chinese language (Cantonese and
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`Mandarin), as well as other Asian language, motion pictures and television programs originally
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`produced in Asia via television, cable television, satellite television and the Internet. (Id. at ¶¶ 2, 10.)
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`As an exhibit to the complaint, plaintiff attached a list of the twenty-five motion pictures at issue
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`herein, along with their registration numbers, if available. (Id. at Ex. A.)1
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`Defendant Kylin is a Delaware corporation with its principal place of business in Plainview,
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`New York, and defendants Neulion and Falconstar are New York corporations with their principal
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`places of business in Plainview, New York and Melville, New York, respectively. (Id. at ¶¶ 4-6.)
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`Defendant Transvideo is an “unknown entity that is an affiliate of Kylin TV, Inc.” (Id. at ¶ 7.) U2
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`alleges that all defendants “participate[d] in,” “authorize[d],” “contribute[d] to,” and are “vicariously
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`liable for” the “unauthorized public performance of plaintiff’s motion pictures.” (Id. at ¶¶ 8, 13.)
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`Throughout the complaint, plaintiff refers to all above-named defendants collectively as
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`“Kylin TV.” (Id. at ¶ 8.) In relevant part, plaintiff describes defendants’ allegedly infringing
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`activities as follows: “a member of the public can become a monthly subscriber by registering with
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`Kylin TV on the internet website . . . [and] pay[ing] a monthly subscription fee beginning at fifteen
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`The following titles represent the twenty-five works cited by plaintiff in Exhibit A: “2
`1
`Young,” “Addicted,” “Chinese Paladin [Eps. 1-2],” “Colour of Truth,” “Dream of a Warrior,”
`“Driving Miss Wealthy,” “Hansom Siblings, The [Eps 1-2],” “Honesty,” “House of Fury,”
`“Humanist,” “Inner Senses,” “Kung Fu Mahjong,” “Legend of Speed [Eps. 1-2],” “Lion Roars, The,”
`“Love for All Seasons,” “ Love is a Many Stupid Thing,” “Love on a Diet,” “Love on the Rocks,”
`“Love Undercover 2: Love Mission,” “Master Q: Incredible Pet Detective,” “Set to Kill,” “Shaolin
`Popery II: Messy Temple,” “Six Strong Guys” and “Three of a Kind.”
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`2
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`Case 1:06-cv-02770-DLI-RLM Document 18 Filed 07/11/07 Page 3 of 15 PageID #: 647
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`dollars . . . [which provides the subscriber with a] set top box . . . [which may then be connected] to
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`a television and to a cable or DSL broadband connection . . . . The subscriber is [then] able to view
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`feature length motion pictures and television programs. Kylin TV duplicates, distributes and uploads
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`these motion pictures onto a computer network accessible to members of the public.” (Id. at ¶¶ 13-
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`16.) In so doing, plaintiff claims that the Kylin TV website provides subscribers with the option to
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`view certain of plaintiff’s motion pictures including, but not limited to, the titles attached to the
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`complaint as Exhibit A, even though plaintiff has never authorized defendants to ”duplicate,
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`distribute or perform publicly any of plaintiff’s motion pictures.” (Id. at ¶¶ 17-19.)
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`Plaintiff’s counsel first notified Kylin of its claims of infringement by forwarding a copy of
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`a draft complaint to Kylin’s offices on April 24, 2006. (Kohlberger Decl. Ex. 1.) In the draft
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`complaint, plaintiff identifies the defendants as “John Does I Through X, doing business as ‘Kylin
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`TV, Inc.’” (Id.) On April 26, 2006, Kylin’s counsel sent a letter to plaintiff’s counsel, which stated
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`that it was investigating plaintiff’s claims. (Kohlberger Decl. Ex. 2.) On May 8, 2006, Kylin’s
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`counsel sent a letter to plaintiff’s counsel asking it to provide documentary evidence demonstrating
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`that U2 is the owner or exclusive licensee of each of the works listed in Exhibit A of the draft
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`complaint. (Kohlberger Decl. Ex. 3.) On May 9, 2006, plaintiff’s counsel responded by stating:
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`[Plaintiff’s] rights have been repeatedly sustained by federal courts, most recently in
`the reported decisions of U2 Home Entertainment, Inc. v. Lai Ying Music & Video
`Trading, Inc. and Wei Ping Yuan, 2005 WL 1231645 (S.D.N.Y. May 25, 2005) and
`U2 Home Entertainment v. Rolling Rock Music Corp. et al., 2004 WL 2609416
`(S.D.N.Y. Nov. 17, 2004). Although we have not compared the lists of works in
`these actions with those set forth in Exhibit A, the claims of title will surely be
`similar if not identical.
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`(Kohlberger Decl. Ex. 4.) On May 17, 2006, Kylin’s counsel again requested that plaintiff provide
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`evidence that it is the exclusive licensee of the works listed in plaintiff’s draft complaint.
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`3
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`Case 1:06-cv-02770-DLI-RLM Document 18 Filed 07/11/07 Page 4 of 15 PageID #: 648
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`(Kohlberger Decl. Ex. 5.) The May 17 letter also stated that “Kylin TV was granted a sublicense to
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`the relevant works by its affiliate, TransVideo International Ltd.” (Id.)
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`On June 2, 2006, U2 commenced the instant action for copyright infringement. In addition
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`to seeking the maximum statutory damages, attorneys fees and costs, plaintiff seeks to have
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`defendants enjoined preliminarily during the pendency of this action and permanently from: (1)
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`duplicating, distributing or uploading onto a computer network accessible by the public any of
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`plaintiff’s motion pictures; (2) transmitting, broadcasting or otherwise publicly performing any of
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`plaintiff’s motion pictures; and (3) infringing or contributing to or participating in the infringement
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`by others of any of the copyrights in plaintiff’s motion pictures, and from acting in concert with,
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`aiding or abetting others to infringe any of said copyrights in any way.
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`The time to answer was extended to July 31, 2006, on which date defendants moved to
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`dismiss the complaint pursuant to Rule 12(b)(6). In support of their motion to dismiss, defendants’
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`counsel submitted as exhibits the online records of the United States Copyright Office, as well as
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`copies of the results of a search conducted by Thomson of the assignment files of the United States
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`Copyright Office for the twenty-five motion pictures at issue herein. (See Kohlberger Decl. Exs. 6-
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`9.) Plaintiff filed its opposition brief on August 14, 2006, along with an affirmation by plaintiff’s
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`counsel, which allegedly includes documents relating to defendants Neulion, Falconstar and
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`Transvideo, and an affidavit from U2's General Counsel, Alan T. Huie, Esq., which allegedly
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`includes copies of copyright registrations or pending registrations, as well the corresponding “chain
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`of title” documents. (Shapiro Affirm. Exs. A-F; Huie Aff. Exs. 1-25.) Defendants filed their reply
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`on August 21, 2006.
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`4
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`Case 1:06-cv-02770-DLI-RLM Document 18 Filed 07/11/07 Page 5 of 15 PageID #: 649
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`Discussion
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`I.
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`Documents That May Be Considered on a Motion to Dismiss
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`As a threshold matter, both parties to the instant action have submitted a number of exhibits
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`with their briefs. When material outside the complaint is presented to, and not excluded by the court,
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`“the motion shall be treated as one for summary judgment and disposed of as provided in [Federal
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`Rule of Civil Procedure] 56, and all parties shall be given reasonable opportunity to present all
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`material made pertinent to such a motion . . . .” Fed. R. Civ. P. 12(b). However, for purposes of this
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`rule, the complaint is deemed to include documents attached to the complaint, documents referenced
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`in the complaint, and documents integral to the complaint. See Chambers v. Time Warner, Inc., 282
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`F.3d 147, 152-53 (2d Cir. 2002); Fed. R. Civ. P. 10(c). A document is “integral” to the complaint
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`where “the complaint relies heavily upon its terms and effects.” Chambers, 282 F.3d at 153. “A
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`plaintiff’s reliance on the terms and effect of a document in drafting the complaint is a necessary
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`prerequisite to the court’s consideration of the document on a dismissal motion; mere notice or
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`possession is not enough.” Id. (emphasis in original).
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`Under these standards, while the court is permitted to consider the parties’ pre-filing
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`correspondence, it may not consider the exhibits attached to plaintiff’s counsel’s affidavit on this
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`motion. In Chambers, the Second Circuit noted that the harm from considering material outside the
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`complaint is the lack of notice that the material may be considered. Id. However, where there is
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`actual notice by the opposing party of all the information in the movant’s papers, such as where the
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`plaintiff has relied on the correspondence in question in framing the complaint, the necessity to
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`convert a motion to dismiss to one for summary judgment is dissipated. Id. Here, as the pre-filing
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`correspondence included letters to and from the parties’ counsel, plaintiff clearly had notice of such
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`5
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`Case 1:06-cv-02770-DLI-RLM Document 18 Filed 07/11/07 Page 6 of 15 PageID #: 650
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`documents. Moreover, the complaint states that “Transvideo International, Inc. is an unknown entity
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`that is an affiliate of Kylin TV, Inc.,” indicating that plaintiff relied on the May 17, 2006 letter from
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`Kylin’s counsel in drafting the complaint. (Compl. ¶ 7.) By contrast, the documents attached to
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`plaintiff’s counsel’s affidavit relating to defendants Neulion, Falconstar and Transvideo were neither
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`referenced in, nor were they integral to the complaint given that the complaint merely states where
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`defendants Neulion, Falconstar and Transvideo are incorporated and their principal places of
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`business. (See Compl. ¶¶ 5-7.)
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`Although plaintiff neither attached the relevant “chain of title” documents to its complaint
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`nor incorporated them by reference, it is clear that plaintiff relied on the terms and effects of such
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`documents in framing its complaint. For instance, the complaint states that plaintiff “was and is the
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`exclusive licensee in the United States for the public performance of certain Asian language motion
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`pictures . . . [t]hese works are licensed by plaintiff for public performance on television and cable
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`television systems, satellite television systems and over the Internet,” and that plaintiff “has complied
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`with all statutory formalities required by the Copyright Act, including renewals, where required, to
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`maintain the validity of the registered copyrights in [p]laintiff’s [m]otion [p]ictures.” (Compl. ¶¶
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`10-11.)
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`Despite this reliance, defendants assert that the “chain of title” documents are
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`“unauthenticated,” and as such, must be disregarded in their entirety. (Defs.’ Reply Br. at 6.) Case
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`law suggests that where a plaintiff relies on documents of disputed authenticity, as is the case here,
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`the court may not consider them on a motion to dismiss. See Philadelphia Parking Auth. v. Federal
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`Ins. Co., 385 F. Supp. 2d 280, 284-85 (S.D.N.Y. 2005) (where a “plaintiff relies upon a document
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`of undisputed authenticity,” a court may consider documents attached to the complaint or
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`6
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`Case 1:06-cv-02770-DLI-RLM Document 18 Filed 07/11/07 Page 7 of 15 PageID #: 651
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`incorporated in it by reference) (emphasis added). As the authenticity of the documents is disputed,
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`the court will not consider them on the motion to dismiss.
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`Finally, the court may take judicial notice of facts within the public domain and public
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`records if such facts and records are “capable of accurate and ready determination by resort to
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`sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). Accordingly,
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`the court is entitled to take judicial notice of the exhibits attached to the Kohlberger affidavit, which
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`include online records of the United States Copyright Office at <www.copyright.gov>, as well as
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`copies of the results of a search conducted by Thomson of the assignment files of the United States
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`Copyright Office for the twenty-five motion pictures at issue herein. Id.; see also Island Software
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`and Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 261 (2d Cir. 2005) (“[t]he district court
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`was entitled to take judicial notice of Microsoft’s federal copyright registrations, as published by the
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`Copyright Office’s registry.”). Similarly, the court takes judicial notice of the copyright registrations
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`attached as exhibits to Mr. Huie’s affidavit. Id.
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`II.
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`Defendants’ Motion to Dismiss
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`A.
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`Legal Standards
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`When considering a motion to dismiss pursuant to Rule 12(b)(6), the court must accept all
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`factual allegations as true and draw all reasonable inferences in the non-moving party’s favor.
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`Dangler v. New York City Off Track Betting Corp., 193 F. 3d 130, 138 (2d Cir. 1999). A motion to
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`dismiss pursuant to Rule 12(b)(6) must be read in conjunction with Rule 8(a) of the Federal Rules
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`of Civil Procedure. Rule 8(a) sets forth the requirements for pleading a claim in federal court and
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`directs that a pleading contain a “short and plain statement of the claim showing that the pleader is
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`entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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`7
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`Case 1:06-cv-02770-DLI-RLM Document 18 Filed 07/11/07 Page 8 of 15 PageID #: 652
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`The Supreme Court recently clarified the pleadings standards under Rule 8(a) and the
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`standard under which Rule 12(b)(6) motions are reviewed. In Bell Atlantic Corp. v. Twombly, 127
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`S. Ct. 1955 (2007), the Court rejected the “oft-quoted” standard set forth half a century ago in Conley
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`v. Gibson, 355 U.S. 41, 78 (1957), that a complaint should not be dismissed “unless it appears
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`beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle
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`him to relief.” Id. at 45-46. The Court “retire[d]” Conley’s “no set of facts” language in favor of
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`the requirement that plaintiff plead enough facts “to state a claim for relief that is plausible on its
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`face.” Bell Atlantic Corp., 127 S. Ct. at 1974.
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`The Second Circuit has not interpreted the foregoing language to require a “universal
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`standard of heightened fact pleading;” rather, it requires a “flexible ‘plausibility standard,’ which
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`obliges a pleader to amplify a claim with some factual allegations in those contexts where such
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`amplification is needed to render the claim plausible.” Iqbal v. Hasty, 2007 WL 1717803, at *11
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`(2d Cir. June 14, 2007) (emphasis in original). Indeed, shortly after its decision in Bell Atlantic, the
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`Court reiterated that the pleading of specific facts in support of a complaint is not necessary. Instead,
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`a complaint need only give the defendant “fair notice of what the . . . claim is and the grounds upon
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`which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007). Although a complaint attacked
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`by a Rule 12(b)(6) motion to dismiss “does not need detailed factual allegations, a plaintiff’s
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`obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
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`conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
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`Atlantic Corp., 127 S. Ct. at 1964-65. Plaintiff’s factual allegations must be sufficient to raise a right
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`to relief above the speculative level, assuming that all the allegations in the complaint are true, even
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`if doubtful in fact. Id. at 1965.
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`8
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`Case 1:06-cv-02770-DLI-RLM Document 18 Filed 07/11/07 Page 9 of 15 PageID #: 653
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`The elements of a copyright infringement claim are: (1) ownership of a valid copyright, and
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`(2) copying of constituent elements of the work that are original. See Fiest Publ’ns, Inc. v. Rural
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`Tel. Serv. Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 113 L. Ed 2d 358 (1991). Under the case law of
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`this Circuit, to plead these elements sufficiently for purposes of Rule 8, a complaint must allege: (1)
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`which specific original works are the subject of the copyright claim; (2) that plaintiff owns the
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`copyrights in those works; (3) that the copyrights have been registered in accordance with the statute;
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`and (4) a description of the specific acts, including time frame, allegedly committed by the defendant
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`that infringed on the copyright. See Kelly v. L.L. Cool J., 145 F.R.D. 32, 36 (S.D.N.Y. 1992), aff’d.,
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`23 F.3d 398 (2d Cir. 1994), cert. denied, 513 U.S. 950, 115 S. Ct. 365, 130 L. Ed. 2d 318 (1994).
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`B.
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`Sufficiency of the Pleadings
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`In the instant motion, defendants first challenge the sufficiency of the complaint insofar as
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`it alleges acts by defendants Neulion, Falconstar and Transvideo that infringed plaintiff’s copyrights.
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`Specifically, defendants argue that the complaint does not satisfy the notice pleading requirements
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`set forth in Rule 8 because it merely states the places of incorporation and principal places of
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`business for each defendant, alleges that each defendant is liable for “participat[ing] in,”
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`“authoriz[ing]” and “contribut[ing] to” the infringing activities, and describes the infringing
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`activities of the defendants collectively. (See Compl. ¶¶ 5-18.) Paragraph 8 of the complaint states,
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`“[d]efendants may herein be referred to as ‘Kylin TV’.” (Id. at ¶ 8.) Although the complaint is not
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`a model of clarity, it meets, for the most part, the standards set forth above.
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`At this stage of the litigation, plaintiff is not required to specify exactly what acts each
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`individual defendant performed in order to put defendants on fair notice of the claims against them.
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`See Carell v. Shubert Org., Inc., 104 F. Supp. 2d 236, 251 (S.D.N.Y. 2000) (complaint sufficient
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`9
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`Case 1:06-cv-02770-DLI-RLM Document 18 Filed 07/11/07 Page 10 of 15 PageID #: 654
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`under Rule 8, “despite the fact that each individual infringement was not specified,” where plaintiff
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`alleged the publication of certain designs in national and international stage products and videos in
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`1997 and 1998 and their use in certain commercial products”); see also Plunket v. Doyle, No. 99 Civ.
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`11006, 2001 WL 175252, at *6 (S.D.N.Y. Feb. 22, 2001) (“plaintiff need not specify each infringing
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`act with respect to each original work; the [c]ourt recognizes that discovery is likely to provide many
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`of the details of the allegedly infringing acts and much of this information may be exclusively in
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`defendants’ control.”). Moreover, Rule 8 does not prohibit plaintiff from choosing to make
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`allegations against defendants collectively. See Clayton v. City of Middletown, 237 F.R.D. 538, 540
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`(D. Conn. 2006) (“plaintiff apparently chose to make its allegations against the defendants
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`collectively, and Rule 8 does not prohibit such allegations against multiple defendants.”).
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`Referring to defendants Kylin, Neulion, Falconstar and Transvido collectively as “Kylin TV,”
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`plaintiff alleges that defendants infringed on its exclusive right to publicly perform the twenty-five
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`Asian language films at issue herein as follows: “a member of the public can become a monthly
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`subscriber by registering with Kylin TV on the internet website . . . [and] pay[ing] a monthly
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`subscription fee beginning at fifteen dollars . . . [which provides the subscriber with a] set top box
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`. . . [which may then be connected] to a television and to a cable or DSL broadband connection . .
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`. . The subscriber is [then] able to view feature length motion pictures and television programs.
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`Kylin TV duplicates, distributes and uploads these motion pictures onto a computer network
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`accessible to members of the public.” (Compl. ¶¶ 13-16.) Plaintiff asserts that such acts render
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`defendants Neulion, Falconstar and Transvideo directly, contributorily and vicariously responsible
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`for the infringement. (Id. at ¶¶ 8.) Therefore, defendants cannot really argue that they do not have
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`notice of the claims against them because “the complaint is so confused, ambiguous, vague or
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`10
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`otherwise unintelligible that its true substance, if any, is well disguised.” Salahuddin, 861 F.2d at
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`42.
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`Accordingly, plaintiff’s allegations against defendants Neulion, Falconstar and Transvideo
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`more than satisfy the Rule 8 requirements.
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`B.
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`Failure to State a Claim
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`Defendants next move to dismiss the complaint for failure to state a claim upon which relief
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`can be granted, pursuant to Rule 12(b)(6).
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`1.
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`Ownership by Plaintiff
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`Defendants first argue that plaintiff cannot establish ownership of valid copyrights as a matter
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`of law because it failed to attach to its complaint copies of the certificates of registration for the
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`works at issue, or evidence as to how it obtained ownership interest in the works. Defendants claim
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`that plaintiff “has the burden of proving [its] chain of title” because the Registration and Assignment
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`Records of the Copyright Office indicate that with respect to at least twenty-two out of the twenty-
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`four registered works identified in the complaint, plaintiff is not the owner. Kenbrook Fabrics, Inc.
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`v. Soho Fashions, Inc., 13 U.S.P.Q. 2d 1472, 1476 (S.D.N.Y. 1989) (quoting 3 NIMMER ON
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`COPYRIGHT, § 12.11[C] at 12-81-12-82 (1989)). Moreover, even assuming that plaintiff has
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`obtained a limited license to the works at issue for a specific purpose, defendants claim that plaintiff
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`has not obtained an exclusive license of all the statutory rights granted as a copyright owner under
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`17 U.S.C. § 106 for each work at issue. See Random House, Inc. v. Rosetta Books LLC, 150 F. Supp.
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`2d 613, 617 (S.D.N.Y. 2001) (“an exclusive licensee may not sue for infringement of rights as to
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`which he is not licensed, even if the subject matter of the infringement is the work as to which he
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`is a licensee.”).
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`11
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`Case 1:06-cv-02770-DLI-RLM Document 18 Filed 07/11/07 Page 12 of 15 PageID #: 656
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`On a motion to dismiss, the court must refrain from engaging in fact-finding, and plaintiffs
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`must be given a fair chance to contest defendants’ evidentiary assertions. See Amaker v. Weiner, 179
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`F.3d 48, 50 (2d Cir. 1999). Moreover, “[c]omplaints [for copyright infringement] simply alleging
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`present ownership by plaintiff, registration in compliance with the applicable statute, and
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`infringement by defendant, have been held to be sufficient under the rules.“ Mid America Title Co.
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`v. Kirk, 991 F.2d 417, 421 n. 8 (7th Cir. 1993) (quoting 5 CHARLES A. WRIGHT & ARTHUR A.
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`MILLER, FEDERAL PRACTICE AND PROCEDURE, § 1237, at 283 (1990)). Here, Exhibit A contains a
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`list of the twenty-five Asian language motion pictures at issue herein, along with the copyright
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`registration numbers for all but one of the works. Plaintiff claims to be the “exclusive licensee in
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`the United States for the public performance” of such motion pictures, and has allegedly “complied
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`with all statutory formalities required by the Copyright Act, including renewals, where required, to
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`maintain the validity of the registered copyrights in [its] motion pictures.” (Id. at ¶¶ 10, 11, Ex. A.)
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`Moreover, as set forth above, plaintiff alleges in sufficient detail the manner in which defendants
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`infringed on plaintiff’s alleged exclusive right to publicly perform the twenty-five Asian language
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`films. As such, the complaint sufficiently alleges ownership by plaintiff of the copyrights at issue
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`and infringement by defendants.
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`To the extent defendants argue that plaintiff failed to allege an unbroken chain of title to the
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`rights at issue, it is unnecessary for the complaint to include such detailed factual recitation. At a
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`later stage in this litigation, plaintiff will bear the burden of proving either its ownership interest, or
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`that it is an exclusive licensee of all the statutory rights granted in a copyright owner for each work
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`at issue herein. It is a burden plaintiff may yet fail to carry. However, defendants fail to make the
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`necessary showing to justify dismissal of the complaint at this stage of the litigation because such
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`12
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`Case 1:06-cv-02770-DLI-RLM Document 18 Filed 07/11/07 Page 13 of 15 PageID #: 657
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`particularity in pleadings is not required.
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`2.
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`Registration
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`Defendants further argue that the court does not have jurisdiction over plaintiff’s claim to the
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`works, “Love Undercover 2: Love Mission” and “Set to Kill,” because (1) plaintiff has not yet
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`received a certificate of registration or a denial from the Copyright Office for “Love Undercover 2:
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`Love Mission,” and (2) no relevant record can be located in the United States Copyright Office for
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`“Set to Kill” under either the title provided or the registration number provided in Exhibit A.
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`Ordinarily, “no action for infringement of the copyright of any work shall be instituted until
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`registration of the copyright claim has been made in accordance with this title.” 17 U.S.C. § 411(a);
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`see also Tuff-n-Rumble Management, Inc. v. Sugarhill Music Publ’g Inc., 49 F. Supp. 2d 673, 677
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`(S.D.N.Y. 1999) (“district courts are without subject matter jurisdiction to hear claims for federal
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`copyright infringement unless a party asserts in its pleadings that he has received an actual certificate
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`of registration or its denial from the Copyright Office.”). However, proof of registration is not
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`necessary if the work, as here, originated in a country outside the United States that is a signatory
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`to the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”).
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`See La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1201 n. 5, 1205-06
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`(10th Cir. 2005); see also 17 U.S.C. § 411(a) (“no action for infringement of the copyright in any
`
`United States work shall be instituted until preregistration or registration of the copyright claim has
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`been made in accordance with this title.”). 2
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`Section 101 of Title 17 states:
`or purposes of section 411, a work is a “United States work” only if – (1) in the case of a
`published work, the work is first published (A) in the United States; (B) simultaneously in
`the United States and another treaty party or parties, whose law grants a term of copyright
`protection that is the same as or longer than the term provided in the United States; (C)
`
`2 F
`
`13
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`

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`Case 1:06-cv-02770-DLI-RLM Document 18 Filed 07/11/07 Page 14 of 15 PageID #: 658
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`Here, viewing the facts in a light most favorable to the non-moving party, the court assumes
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`that plaintiff’s works are subject to the Berne Convention because they were first published in China,
`
`a signatory to the Berne Convention. See United States Copyright Office, Circular 38a, International
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`Copyright Relations of
`
`the United States
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`(Mar. 1, 2003), available at
`
`http://www.copyright.gov/circs/circ38a.pdf; see also Swierkiewicz v. Sorema N.A., 534 U.S. 506,
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`508, n. 1, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002) (“[W]e must accept as true all of the factual
`
`allegations contained in the complaint.”); Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827,
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`104 L. Ed. 2d 338 (1989) (“Rule 12(b)(6) does not countenance . . . dismissals based on a judge’s
`
`disbelief of a complaint’s factual allegations.”). Accordingly, the court retains jurisdiction over
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`plaintiff’s claim to the works, “Love Undercover 2: Love Mission” and “Set to Kill.”
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`3.
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`Acts of Infringement
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`Finally, defendants appear to rehash their arguments pursuant to Rule 8, namely plaintiff’s
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`supposed failure to sufficiently allege the acts by which the defendants had infringed plaintiff’s
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`exclusive copyrights. The court addressed this argument earlier, and the same analysis applies here.
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`simultaneously in the United States and a foreign nation that is not a treaty party; or (D) in
`a foreign nation that is not a treaty party, and all of the authors of the work are nationals,
`domiciliaries, or habitual residents of, or in the case of an audiovisual work legal entities
`with headquarters in, the United States; (2) in the case of an unpublished work, all the
`authors of the work are nationals, domiciliaries, or habitual residents of the United States,
`or, in the case of an unpublished audiovisual work, all the authors are legal entities with
`headquarters in the United States; or (3) in the case of pictorial, graphic, or sculptural work
`incorporated in a building or structure, the building or structure is located in the United
`States. 17 U.S.C. § 101.
`
`14
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`

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`Case 1:06-cv-02770-DLI-RLM Document 18 Filed 07/11/07 Page 15 of 15 PageID #: 659
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`For the foregoing reasons, defendants’ motion to dismiss for failure to state a claim pursuant
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`Conclusion
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`to Fed. R. Civ. P. 12(b)(6) is denied.
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`SO ORDERED.
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`DATED:
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`Brooklyn, New York
`July 10, 2007
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`______________/s/___________________
` DORA L. IRIZARRY
` United States District Judge
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`15