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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`DAVID JOHANSEN, JOHN LYON, and
`PAUL COLLINS, individually and on behalf of all
`others similarly situated,
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`Plaintiffs,
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`- against -
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`SONY MUSIC ENTERTAIMENT INC.,
`and JOHN DOES 1–10,
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`Defendants.
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`Ramos, D.J.:
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`OPINION AND ORDER
`19 Civ. 1094 (ER)
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`
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`David Johansen (“Johansen”), John Lyon (“Lyon”) and Paul Collins (“Collins”, and with
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`Johansen and Lyon, “Plaintiffs”), bring this putative class action against Sony Music
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`Entertainment (“Sony”) for declaratory judgment and copyright infringement. Pending before
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`the Court is Sony’s motion to dismiss all claims. Doc. 43. For the reasons discussed below, the
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`motion is DENIED.
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`I.
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`BACKGROUND1
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`Johansen is an American singer, songwriter and actor, who began his career in the early
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`1970s. Compl. ¶ 6. Johansen entered into a recording agreement with Sony in or about 1978.
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`Id. ¶ 26. Pursuant to that agreement, Johansen released five albums, David Johansen, The David
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`Johansen Group Live, In Style, Here Comes the Night, and Live It Up. Id. ¶ 26.
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`1 The following facts are drawn from the Complaint, Doc. 5, “together with those ‘documents . . . incorporated in it
`by reference’ and ‘matters of which judicial notice may be taken.’” Wilson v. Merrill Lynch & Co., 671 F.3d 120,
`123 (2d Cir. 2011) (citation omitted); see also City of Brockton Ret. Sys. V. Avon Prods., Inc., No. 11 Civ.
`4665(PGG), 2014 WL 4832321, at * 12 (S.D.N.Y. Sept. 29, 2014) (Courts may also consider any document where
`the complaint “relies heavily upon its terms and effect, thereby rendering the document integral to the complaint.”)
`(internal quotation marks and citations omitted).
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`March 31, 2020
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`Case 1:19-cv-01094-ER Document 61 Filed 03/31/20 Page 2 of 16
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`On June 15, 2015, Johansen served a notice of termination on Sony:
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`See id. Ex. A at 2.
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`Additionally, a “Schedule A” as follows is attached to the notice:
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`2
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`Case 1:19-cv-01094-ER Document 61 Filed 03/31/20 Page 3 of 16
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`Id. Ex. A at 3. The Copyright Office duly recorded Johansen’s notice on July 28, 2015. Id.
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`On June 14, 2017, two years after Johansen’s termination notice was sent, Sony sent a
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`letter of refusal to Johansen. Id. ¶ 29; see also id. Ex. B. The letter cites, as reasons for its
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`refusal, that:
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`(a) “the Works are works made for hire,” and thus not subject to termination; (b) “the
`[n]otice does not adequately identify the specific grant David Johansen seeks to
`terminate, as the [n]otice broadly makes reference to all grants or transfers of copyright in
`and to certain sound recordings ‘including, without limitation to the grant dated in or
`about 1984 between the recording artist David Johansen and Blue Sky Records/CBS,
`Inc.’”; (c) Sony is unaware of any grant made in 1984, and “to the extent that any grant
`was made,” the grant was made before 1978 and thus 17 U.S.C. § 203 does not apply;
`and (d) to the extent there was a grant in 1984, termination could not be effected before
`2019. Id.
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`3
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`Case 1:19-cv-01094-ER Document 61 Filed 03/31/20 Page 4 of 16
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`Lyon, professionally known as Southside Johnny, is an American singer and songwriter
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`who first achieved prominence in the mid-1970s, and was signed by Sony’s predecessor, CBS
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`Records, Inc. (“CBS”), in or about 1976.” Id. ¶ 7. Pursuant to a recording agreement with Sony
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`in or about 1978, Lyon released two albums, Hearts Of Stone and Having A Party with Southside
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`Johnny. Id. ¶ 30. On June 1, 2015, Lyon served a notice of termination on Sony substantially
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`similar to Johansen’s termination notice. Id. Ex. C at 2. The attached “Schedule A,”
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`substantially similar in form to that in Johansen’s termination notice, indicated that the
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`“Publication Date[s]” are October 13, 1978 for Hearts Of Stone, and May 23, 1980 for Having A
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`Party With Southside Johnny. Id. Ex. C at 3. Two years later on June 1, 2017, Sony sent Lyon a
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`letter of refusal similar to the one that Johansen received. Id. Ex. D.
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`Collins, a musician and songwriter best known for his musical group Paul Collins’ Beat,
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`entered into a recording agreement in 1979 with CBS. Id. ¶ 8. Pursuant to that agreement,
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`Collins released two albums, The Beat and The Kids Are The Same. Id. ¶ 34. On July 15, 2015,
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`Collins sent a notice of termination that was substantially similar to Johansen and Lyon’s
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`termination notice, except that it identified “Grant Hereby Terminated” as “All grants or
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`transfers of copyright proprietor, including publication and recording rights, in and to the above
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`sound recordings including, without limitation to the grant dated in or about 1979 between the
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`recording artist Paul Collins d/b/a [t]he Beat/Paul Collins Beat and CBS, Inc.” Id. Ex. E. at 2.
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`The “Publication Date[s]” are September 21, 1979 for The Beat and January 29, 1982 for The
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`Kids Are The Same. Id. at 3. Collins’ termination notice also contained a schedule A:
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`4
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`Case 1:19-cv-01094-ER Document 61 Filed 03/31/20 Page 5 of 16
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`Id. Ex. F.
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`Plaintiffs commenced the instant action on February 5, 2019. Plaintiffs claim that as of
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`the effective dates of termination, they regained ownership of the sound recordings identified in
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`their respective termination notices, and the exclusive right to reproduce and distribute them. Id.
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`¶ 40. However, Sony allegedly continues to exploit those sound recordings throughout the
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`United States. Plaintiffs seek in the instant action declaratory relief and monetary damages
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`resulting from Sony’s infringement.
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`On June 11, 2019, Sony moved to dismiss the Complaint for failure to state a claim under
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`Federal Rule of Civil Procedure 12(b)(6), on the basis that the three termination notices are
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`invalid. Doc. 43.
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`II. LEGAL STANDARD
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`“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
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`accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
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`facially plausible “when the plaintiff pleads factual content that allows the court to draw the
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`5
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`Case 1:19-cv-01094-ER Document 61 Filed 03/31/20 Page 6 of 16
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`reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
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`Twombly, 550 U.S. at 556). The plaintiff must allege sufficient facts to show “more than a sheer
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`possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).
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`However, this “flexible ‘plausibility standard’” is not a heightened pleading standard, In re
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`Elevator Antitrust Litig., 502 F.3d 47, 50 n.3 (2d Cir. 2007) (quotation marks and citation
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`omitted), and “a complaint . . . does not need detailed factual allegations” to survive a motion to
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`dismiss, Twombly, 550 U.S. at 555.
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`The question on a motion to dismiss “is not whether a plaintiff will ultimately prevail but
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`whether the claimant is entitled to offer evidence to support the claims.” Sikhs for Justice v.
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`Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012) (quoting Villager Pond, Inc. v. Town of Darien,
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`56 F.3d 375, 378 (2d Cir. 1995)). “[T]he purpose of Federal Rule of Civil Procedure 12(b)(6) is
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`to test, in a streamlined fashion, the formal sufficiency of the plaintiff’s statement of a claim for
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`relief without resolving a contest regarding its substantive merits” or “weigh[ing] the evidence
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`that might be offered to support it.” Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (internal
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`quotation marks and citations omitted).
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`Accordingly, when ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court
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`accepts all factual allegations in the complaint as true and draws all reasonable inferences in the
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`plaintiff’s favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014); see also Twombly, 550 U.S.
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`at 556 (“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual
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`proof of those facts is improbable . . . .”). “For purposes of this rule, the complaint is deemed to
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`include any written instrument attached to it as an exhibit or any statements or documents
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`incorporated in it by reference.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.
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`2002) (internal quotation marks and citations omitted).
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`6
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`Case 1:19-cv-01094-ER Document 61 Filed 03/31/20 Page 7 of 16
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`III. DISCUSSION
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`Sony contends that all three termination notices are invalid because they are untimely and
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`otherwise deficient. See Mem. of Law in Supp. of Sony’s Mot. to Dismiss (“Sony’s Mem.”),
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`Doc. 44. Specifically, Sony contends that Johansen and Lyon’s termination notices are untimely
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`because they sought terminate 1984 grants that are only terminable beginning in 2019, not 2017,
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`and that Collins’ notice is one month too late. Id. at 8–14. Sony further contends that the notices
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`are deficient because they do not reasonably identify the grants to which the termination notices
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`apply, and do not sufficiently identify the dates of execution of the grants. Id. at 14–19. Lastly,
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`Sony contends that these errors are not harmless. Id. at 19–24. For these reasons, Sony asserts
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`that they remain the lawful owners of the copyrights at issue.
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`A. Requirements for Termination Notices
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`The Copyright Act provides two separate termination regimes. Section 304 describes a
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`process for terminating grants of renewal rights that were executed prior to 1978 for works that
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`were copyrighted and created as of January 1, 1978. 17 U.S.C. § 304. Section 203 sets forth a
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`termination process for grants of rights that were executed in or after 1978, irrespective of when
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`the work in question was copyrighted. 17 U.S.C. § 203. All of the termination notices at issue in
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`this action were filed pursuant to § 203, and the parties’ arguments for the instant motion are all
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`based on § 203.
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`The Copyright Office has issued rules regarding the proper contents of a termination
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`notice under § 203. See 37 C.F.R. § 201.10(b)(2). They require, inter alia, that the notice
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`clearly identify, in the form of a complete and unambiguous statement of facts: (1) “[t]he date of
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`execution of the grant being terminated and, if the grant covered the right of publication of a
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`work, the date of publication of the work under the grant”; (2) “[a] brief statement reasonably
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`7
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`Case 1:19-cv-01094-ER Document 61 Filed 03/31/20 Page 8 of 16
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`identifying the grant to which the notice of termination applies”; and (3) “[t]he effective date of
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`termination.” Id. § 201.10(b)(2)(iii), (v), and (vi). To terminate grants under § 203, parties have
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`five years from “‘the end of thirty-five years from the date of execution of the grant,’ but if the
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`grant ‘covers the right of publication of the work,’ that five-year period begins the earlier of (1)
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`thirty-five years from the work’s publication or (2) forty years from the execution of the grant.”
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`Baldwin v. EMI Feist Catalog, Inc., 805 F.3d 18, 22 (2d Cir. 2015) (quoting 17 U.S.C. § 203).
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`In a separate section under the same regulation, the Copyright Office has provided a
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`general rule that would relieve terminating parties from “harmless errors in a [termination] notice
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`that do not materially affect the adequacy of the information required to serve the purposes of 17
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`U.S.C. [§] 203.” 37 C.F.R. § 201.10(e)(1). Section 201.10(e)(2) provides examples of instances
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`in which the error should be considered harmless. These examples are not meant to be exclusive.
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`Id. (explaining that the list applies “[w]ithout prejudice to the general rule provided by paragraph
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`(e)(1) of this section”).
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` “[A]n error’s ‘materiality,’ and hence its ‘harmlessness,’ [is] to be viewed through the
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`prism of the information needed to adequately advance the purpose sought by the statutory
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`termination provisions themselves.” Siegel v. Warner Bros. Entm’t Inc., 690 F. Supp. 2d 1048,
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`1052 (C.D. Cal. 2009) [hereinafter Siegel II] (citing 37 C.F.R. § 201.10(e)(1)); see also Horror
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`Inc. v. Miller, 335 F. Supp. 3d 273, 319 (D. Conn. 2018) (finding that putting incorrect addresses
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`in the termination notice did not invalidate it); Siegel v. Warner Bros. Entm’t Inc., 658 F. Supp.
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`2d 1036, 1091–95 (C.D. Cal. 2009) [hereinafter Siegel I] (finding that Plaintiff’s failure to
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`include information about two weeks’ worth of comics in the termination notice was harmless
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`error given the volume of information that Plaintiff had provided).
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`8
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`Case 1:19-cv-01094-ER Document 61 Filed 03/31/20 Page 9 of 16
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`The Copyright Office has unambiguously explained that the purpose behind § 203 is to
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`provide protections for authors of creative works. Analysis of Gap Grants under the Termination
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`Provisions of Title 17, at i. One motivation behind the Sections is to counterbalance the unequal
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`bargaining position of artists, resulting in part from the “impossibility of determining a work’s value
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`until it has been exploited.” H.R. Rep. No. 94-1476, at 124 (1976). A “competing objective” of the
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`sections is “for the existing assignee to receive reasonable notice of what rights of theirs are being
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`affected through the exercise of the [artist]’s . . . termination right.” Seigel II, 690 F. Supp. at 1055–
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`56; see also 42 Fed. Reg. 45916, 45918 (stating that the regulation “attempts to avoid the imposition
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`of costly or burdensome requirements while, at the same time, giving the grantee and the public a
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`reasonable opportunity to identify the affected grant and work from the information given in the
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`notice”).
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`B. Sufficiency of the Termination Notices
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`a. Timeliness
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`First, Sony contends that Johansen and Lyon’s termination notices in 2017 are untimely
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`because they only reference grants executed in 1984, which would only be terminable as early as
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`in 2019. Sony further contends that Collins’ notice with respect to the Beat is one month too
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`late. The Court disagrees.
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`Contrary to Sony’s assertion, Johansen and Lyon’s termination notices did not only seek
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`to terminate grants made in 1984. Instead, they sought to terminate “[a]ll grants . . . in and to the
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`above sound recordings [in Schedule A], including, without limitation to the grant dated in or
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`about 1984.” Doc. 5 Ex. A; Id. Ex. C. Additionally, the Complaint alleges that both Johansen
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`and Lyon entered into recording agreements with Sony “in or about 1978.” Compl. ¶¶ 26, 30.
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`The Complaint further alleges that pursuant to those agreements, Johansen and Lyon released the
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`sound recordings at issue in this case.
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`9
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`Case 1:19-cv-01094-ER Document 61 Filed 03/31/20 Page 10 of 16
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`In the case of Johansen, the notice of termination indicates that the dates of publication of
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`the albums spanned from April 1978 to May 1982. And in the case of Lyon, the notice of
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`termination indicates that both albums were published in 1978. It is entirely plausible, therefore,
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`that Johansen and Lyon granted their rights in those sound recordings to Sony in 1978. Taking
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`1978 as the date of execution of the grant to be terminated, the effective termination window
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`began, thirty-five years after 1978, in 2013 and ended five years later in 2018. As such,
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`Johansen and Lyon’s termination notices in 2017 would have been timely. In any event, more
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`information is needed to determine if this is the case, making this inquiry unsuitable for a Rule
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`12(b)(6) motion to dismiss.
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`Sony also contends that Collins’ termination notice was untimely with respect to The
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`Beat because it is one month too late. The effective date of termination for The Beat was listed
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`as June 16, 2017, only 23 months after the listed Termination Notice Date on July 15, 2015. A
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`termination notice may be served between two and ten years before the termination date.
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`Baldwin, 805 F.3d at 32 (quoting 17 U.S.C. § 203). Specifically, Sony argues that this is an
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`“error in timing” that cannot be excused under 17 U.S.C. § 203(a)(4)(A). Sony’s Mem. at 13. In
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`response, Plaintiffs argue that this was as a result of a “scrivener’s error,” that is excusable as a
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`harmless error. See Mem. of Law in Opp’n re Mot. to Dismiss (“Pls’ Mem.”), Doc. 47 at 13.
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`A close examination of the record shows that it is plausible that this was a “scrivener’s
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`error.” The listed dates of termination and termination notice dates for sound recordings in all
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`three notices, with the only exception of The Beat, are separated by exactly two years.
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`Furthermore, within the same termination notice, the listed Termination Notice Date for The
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`Kids Are The Same was also July 15, 2015, but the effective date of termination was listed as
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`July 16, 2017 instead. Lastly, both sound recordings were released pursuant to the same
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`10
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`Case 1:19-cv-01094-ER Document 61 Filed 03/31/20 Page 11 of 16
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`recording agreement. Drawing all reasonable inferences in favor of Plaintiffs, the Court finds
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`that it is possible that this was a “scrivener’s error” and that the harmless error rule may apply to
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`excuse it. See Siegel II, 690 F. Supp. at 1053. (“[t]he harmless error rule applies to . . . simple
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`clerical or typographical errors”).
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`b. Gap Works
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`Next, Sony contends that Lyon’s albums may be, what are known as gap works. Sony’s
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`Mem. at 18–19. That term refers to pre-1978 agreements that concern works that were not
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`created until 1978 or later. In December 2010, the Copyright Office stated that “[S]ection 203 is
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`the relevant provision for Gap Grants.” U.S. Copyright Office, Analysis of Gap Grants under
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`the Termination Provisions of Title 17, p. i (2010), http://www.copyright.gov/reports/gap-grant-
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`analysis.pdf. Additionally, the Copyright Office has clarified that when applied to gap works,
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`the phrase “the date of the execution of the grant being terminated” means “the date on which the
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`work was created.” Id. § 201.10(f)(1)(ii)(C).
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`Sound recordings are created for purposes of the Copyright Act on the date they are
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`“fixed,” or recorded. See Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 808 F. Supp. 2d
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`634, 637 (S.D.N.Y. 2011) (“A ‘sound recording’ is a ‘work that results from the fixation of a
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`series of musical, spoken, or other sounds . . . .’” (internal citations omitted)); see also United
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`States Copyright Office, Copyright Registration for Sound Recordings 6,
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`https://www.copyright.gov/circs/circ56.pdf (“A sound recording is considered created when it is
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`‘fixed’ in a phonorecord for the first time.”). Therefore, Sony argues that Lyon’s termination
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`notice, to the extent that it sought to terminate a grant made before 1978, failed to recite the dates
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`of creation of the relevant sound recordings.
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`11
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`Case 1:19-cv-01094-ER Document 61 Filed 03/31/20 Page 12 of 16
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`However, Sony makes that argument solely on the basis of a one-sentence allegation in
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`the Complaint that “Lyon signed to . . . CBS Records, Inc., in or about 1976.” Compl. ¶ 7.
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`However, the Complaint clearly alleges that the two albums at issue here were released pursuant
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`to a 1978 recording agreement with Sony. Id. ¶ 30. Because the Court accepts that as true for
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`purposes of this motion, dismissal is inappropriate on the basis that Lyon’s notice failed to
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`comply with the statutory requirements for gap works.
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`c. Identification of Grants Being Terminated
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`Sony further contends that the termination notices are phrased so broadly that they fail to
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`satisfy 37 C.F.R. § 201.10(b)(2)(v), which requires “a brief statement reasonably identifying the
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`grant to which the notice of termination applies.” The Court disagrees.
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`As Plaintiffs correctly point out, courts in this district have found even more generic
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`descriptions sufficient. Pls’ Mem. at 11. In Music Sales Corp. v. Morris, the Court found that
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`the following description of the grant was adequate: “‘Grant or transfer of copyright and the
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`rights of copyright proprietor, including publication and recording rights.’” 73 F. Supp. 2d 364,
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`378 (S.D.N.Y. 1999). In reaching that finding, the court considered the custom of the industry
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`and the Register of Copyrights and noted that the Register customarily accepted boilerplate
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`language in termination notices. Id. Here, the termination notices included more than just
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`boilerplate language, specifically identifying grants of rights in sound recordings set forth in the
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`schedules attached to the notices. Accordingly, dismissal on this basis is also inappropriate.
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`Although the Court in Music Sales made that finding with respect to a § 304 termination
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`notice, the relevant regulations for both § 203 and § 304 notices similarly require “a brief
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`statement reasonably identifying the grant to which the notice of termination applies.” 37 C.F.R.
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`§ 201.10(b)(1)(iv); see also 37 C.F.R. § 201.10(b)(2)(v). Accordingly, they should be accorded
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`12
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`Case 1:19-cv-01094-ER Document 61 Filed 03/31/20 Page 13 of 16
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`the same meaning. See Nat’l Credit Union Admin v. First Nat’l Bank and Trust Co., 522 U.S.
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`479, 501 (1998) (highlighting the “established canon of construction that similar language
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`contained within the same section of a statute must be accorded a consistent meaning”).
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`d. Dates of Execution of Grants Being Terminated
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`Johansen and Lyon’s termination notices identified the grants being terminated as:
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`All grants or transfers or transfers of copyright and all rights of copyright
`proprietor, including publication and recording rights, in and to the
`above sound recordings, including without limitation to the grant dated
`in or about 1984 between the recording artist [ ] and [CBS, Inc.]
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`See Doc. 5 Ex. A; Id. Ex. C. The relevant section in Collins’ termination notice is
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`substantially similar with the only difference being that it referenced a grant “dated
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`in or about 1979.” Id. Ex. E.
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`Sony contends that this language does not contain a clear identification of the specific
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`dates of execution of the grants sought to be terminated. Sony further argues that these errors
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`cannot be harmless. Sony’s Mem. at 21–24. In response, Plaintiffs contend that the schedules
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`attached to the termination notices make clear that the notices sought to terminate grants
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`conferring the rights in sound recordings with publication dates between 1978 and 1982. Pls’
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`Mem. at 4. Plaintiffs further argue that any error should be harmless because the information
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`contained in their termination notices with respect to each individual sound recording adequately
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`advances the “competing objective” of “reasonable notice” to Sony of “what rights of theirs are
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`being affected,” and that there was no intent to deceive or mislead Sony, or to conceal
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`information. Id.
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`Courts have held that complete omissions in a termination notice, without any other
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`information touching upon the subject matter of the error, cannot be harmless error. Siegel II,
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`690 F. Supp. 2d at 1056. This is consistent with the objective underlying § 203 to provide the
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`13
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`Case 1:19-cv-01094-ER Document 61 Filed 03/31/20 Page 14 of 16
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`recipients of the termination notices sufficient information to understand what rights of theirs are
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`at stake. The Copyright Office has also explained that the purpose of 37 C.F.R. § 201.10 is to
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`“avoid the imposition of costly or burdensome requirements, while, at the same time, provide the
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`recipients with a reasonable opportunity to identify the affected grant and work from the information
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`given in the notice.” See 42 Fed. Reg. 45916, 45918; see also 42. Fed. Reg. 50300, 50300 (making
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`the same observation as the purpose of the proposed new § 201.10).
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`On the other hand, omission of some or parts of the information required may still be
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`considered harmless so long as there are other pieces of information sufficient to satisfy the
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`relevant regulatory requirement. As the Court in Siegel II acutely explained by way of an
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`example, even if a termination notice fails to include the title for a particular sound recording, the
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`author’s name for that sound recording, and the date when copyright in that sound recording was
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`secured, that termination notice would nevertheless afford the recipients a reasonable opportunity
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`to identify the work if it provides a valid registration number of that particular sound recording.
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`Siegel II, 690 F. Supp. 2d at 1057.
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`Contrary to Sony’s argument, this is not a case where the termination notices were
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`completely devoid of any information regarding the grants in question. The relevant regulatory
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`requirement here, 37 C.F.R. § 201.10(b)(2)(iii), requires a clear identification of “the date of
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`execution of the grant being terminated and, if the grant covered the right of publication of a
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`work, the date of publication of the work under the grant.” While the termination notices
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`admittedly omitted the specific date of execution of the grant being terminated, all three of the
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`notices clearly identified the publication dates of the sound recordings at issue, as well as their
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`authors, their titles, their copyright registration numbers and their effective dates of termination.
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`Furthermore, the complaint alleges that all the sound recordings were released pursuant to
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`recording agreements between Plaintiffs and Sony. Looking at these facts in the light most
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`14
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`Case 1:19-cv-01094-ER Document 61 Filed 03/31/20 Page 15 of 16
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`favorable to Plaintiffs, the notices provide Sony with ample information to identify the grants
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`that cover the specific sound recordings identified.
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`Furthermore, Sony’s citation to Burroughs v. Goldwyn-Mayer, Inc., 683 F.2d 610, 622
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`(2d Cir. 1982) is inapposite. This Court previously found that “the Court in Burroughs did not
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`consider whether the harmless error provision of the rules applied.” See Mtume v. Sony Music
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`Entertainment, No. 18 Civ. 6037(ER), 2019 WL 4805925, at *4 (S.D.N.Y. Sept. 30, 2019).
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`Sony’s remaining arguments are unpersuasive. Specifically, Sony contends 37 C.F.R. §
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`201.10(e)(2) only excuses some imprecision in giving the dates of execution but not outright
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`omission thereof, and that the omission was not in good faith. Sony’s Mem. at 22; Doc. 48 at 8.
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`However, assuming arguendo that Sony is right, 37 C.F.R. § 201.10 (e)(2) states that the list of
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`errors contained therein is “without prejudice” to the general rule provided by 37 C.F.R. §
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`201.10(e)(1). Indeed, the Copyright Office made clear that the examples recited in §
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`201.10(e)(2) were not meant to define or otherwise set strict parameters on the circumstances
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`where the general harmless error rule in § 201.10(e)(1) is applicable.
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`Instead, it expressly stated that the only reason for the inclusion of the specific examples
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`in (e)(2) was so that “disputes” would be avoided that those errors could ever be considered
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`harmful. See 42 Fed. Reg. 45916, 45919. Moreover, courts have recognized that the “reach of
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`the harmless error safety valve is broader than the specified class of examples in (e)(2).” Pls’
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`Mem. at 15 (citing Siegel II). Accordingly, because the Court finds that the termination notices
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`contained sufficient information to afford Sony a reasonable opportunity to identify the grants at
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`issue, such that the general harmless error rule may apply, Sony’s arguments on the basis of 37
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`C.F.R. § 201.10(e)(2) cannot invalidate the notices.
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`Case 1:19-cv-01094-ER Document 61 Filed 03/31/20 Page 16 of 16
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`IV. CONCLUSION
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`For the reasons set forth above, Sony’s motion to dismiss is DENIED. The Parties are
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`directed to appear for a telephonic conference on April 22 at 2:00 P.M. The parties are directed
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`to call (877) 411-9748 using the access code 3029857. The Clerk of Court is respectfully
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`directed to terminate the motion, Doc. 43.
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` SO ORDERED.
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`Dated: March 31, 2020
`New York, New York
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`_______________________
`Edgardo Ramos, U.S.D.J.
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