`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF SOUTH CAROLINA
`CHARLESTON DIVISION
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`No. 2:17-cv-03327-DNC
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`ORDER
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`PHOENIX ENTERTAINMENT
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`PARTNERS, LLC,
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`Plaintiff,
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`v.
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`DR FOFO, LLC d/b/a Planet
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`Follywood, and ELLIOT ASHLEY
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`KOHN d/b/a DJ E,
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`Defendants.
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`____________________________________)
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`This matter is before the court on defendant Elliot Ashley Kohn’s (“Kohn”)
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`motion to dismiss, ECF No. 9. For the reasons set forth below, the court grants the
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`motion to dismiss.
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`I. BACKGROUND
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`This matter arises from Kohn’s allegedly infringing use of four of Phoenix
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`Entertainment Partners, LLC’s (“Phoenix”) copyrighted works. Phoenix is a North
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`Carolina limited liability company. ECF No. 1 ¶ 6. Planet Follywood is an
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`establishment operated by DR FOFO, LLC (“FOFO”), a South Carolina limited liability
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`company in Folly Beach, South Carolina. Id. ¶ 7. Kohn is a DJ and entertainer who
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`provides karaoke-related services. Id. ¶ 8.
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`Phoenix owns the copyright to four karaoke accompaniment tracks (the “Tracks”)
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`by virtue of an assignment instrument from Piracy Recovery, LLC.1 Id. ¶ 27. These
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`1 The four tracks are “New York State of Mind” in the style of Billy Joel, “From the
`Window Up Above” in the style of Wanda Jackson, “Takin’ Care of Business” in the
`1
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`2:17-cv-03327-DCN Date Filed 09/27/18 Entry Number 19 Page 2 of 14
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`karaoke accompaniment tracks are audiovisual works that consist of re-recorded versions
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`of songs without lead vocals. Id. ¶ 11. The tracks also include visual components such
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`as lyric displays and cueing information. Id. Each of the Tracks is part of a compilation
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`of karaoke tracks that is registered as a sound recording with the United States Copyright
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`Office. Id. ¶ 29; ECF No. 10-1.2 Two of the Tracks are registered under the same
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`compilation, SR0000365175, and the other two Tracks are each registered under different
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`compilations, SR0000375893 and SR0000367547 respectively. ECF No. 10 at 2. The
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`compilations are sold on compact discs plus graphics (CD+Gs). Id. at 4.
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`
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`Phoenix alleges that FOFO contracted with Kohn to provide karaoke entertainment
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`services at Planet Follywood. ECF No. 1 ¶ 32. Phoenix then contends that Kohn copied
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`the Tracks and distributed the copies to FOFO’s patrons for karaoke performances
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`without Phoenix’s permission. Id. ¶¶ 35–38. In addition, Phoenix alleges that FOFO had
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`the right to control Kohn’s actions on its premises, knew about Kohn’s infringement of
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`the Tracks, and did nothing to stop Kohn, making FOFO secondarily liable for Kohn’s
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`infringement. Id. ¶¶ 60–61, 67–68.
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`
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`Phoenix filed the instant suit on December 8, 2017, bringing a cause of action for
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`copyright infringement under 17 U.S.C § 501. Id. ¶¶ 74–86. Kohn filed a motion to
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`dismiss on January 24, 2018, ECF No. 9, and Phoenix filed its response on February 7,
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`style of Bachman-Turner Overdrive, and “Blue Moon of Kentucky” in the style of Bill
`Monroe. ECF No. 1 at 14.
`2 If a compilation of work, such as karaoke tracks, is registered, the individual works
`will also be registered. See Section III.B.
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`2
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`2:17-cv-03327-DCN Date Filed 09/27/18 Entry Number 19 Page 3 of 14
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`2018, ECF No. 10. Phoenix subsequently filed a notice of additional non-binding
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`authority on April 11, 2018. ECF No 11.3 The motion is ripe for the court’s review.
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`II. STANDARD
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`
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`A Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted
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`“challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186,
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`192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v. Martin, 980
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`F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) . . . does not
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`resolve contests surrounding the facts, the merits of a claim, or the applicability of
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`defenses.”). To be legally sufficient, a pleading must contain a “short and plain statement
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`of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
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`Rule 12(b)(6) motion should not be granted unless it appears certain that the plaintiff can
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`prove no set of facts that would support his claim and would entitle him to relief. Mylan
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`Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When considering a Rule
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`12(b)(6) motion, the court should accept all well-pleaded allegations as true and should
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`view the complaint in a light most favorable to the plaintiff. Ostrzenski v. Seigel, 177
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`F.3d 245, 251 (4th Cir.1999); Mylan Labs., Inc., 7 F.3d at 1134. “To survive a motion to
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`dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
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`3 This notice attached pleadings and a court order from a similar case filed by Phoenix
`in the United States District Court for the District of Colorado. The attachments include
`the defendants’ motion to dismiss, the defendants’ reply in support of their motion to
`dismiss, and the District of Colorado’s order denying the motion to dismiss as to the
`copyright infringement claim. ECF No. 11. Phoenix pointed to the copyright
`infringement issue in the Colorado case, which is the same issue in the instant case. Id. at
`1. The court acknowledges the District of Colorado’s opposite ruling in its motion but is
`unable to discern the reasoning underpinning the District of Colorado’s decision from its
`brief order denying the motion to dismiss as to the copyright infringement claim. Having
`extensively researched the issues raised in this motion to dismiss, this court respectfully
`reaches a different conclusion.
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`3
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`2:17-cv-03327-DCN Date Filed 09/27/18 Entry Number 19 Page 4 of 14
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`claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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`(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
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`plausibility when the plaintiff pleads factual content that allows the court to draw the
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`reasonable inference that the defendant is liable for the misconduct alleged.” Id.
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`III. DISCUSSION
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`
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`Kohn alleges that the copyrights for the Tracks were not properly registered, and
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`as a result, Phoenix may not bring a copyright infringement action for use of the Tracks.
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`Kohn first argues that the Tracks were improperly registered as only sound recordings
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`and not also audiovisual works. He then argues that single work registration does not
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`exempt Phoenix from separately registering the Tracks as audiovisual works, because
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`audiovisual work is not a class of work for which single work registration is available.
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`A. Registration Class
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`Kohn’s first argument is that the Tracks are only registered as sound recordings
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`when they should also be registered as audiovisual works. ECF No. 9-1 at 4–5. He
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`claims that the fact that there are no copyright registrations for the audiovisual elements
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`of the Tracks is fatal to Phoenix’s claim because valid copyright registration is required
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`to bring a copyright infringement claim, and without copyright registrations for the
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`audiovisual elements, Phoenix’s copyrights for the Tracks are invalid. Id. at 4. Phoenix
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`does not respond directly to this argument but instead argues that the registrations are
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`valid as single work registrations, ECF No. 10 at 3–7, which is discussed in greater detail
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`in Section III.B.
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`Copyright infringement consists of two elements: (1) the ownership of a valid
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`copyright; and (2) the copying of the original elements of the copyrighted work. Feist
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`4
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`2:17-cv-03327-DCN Date Filed 09/27/18 Entry Number 19 Page 5 of 14
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`Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). In order to institute an
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`action for infringement, the copyright must be registered with the United States
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`Copyright Office. 17 U.S.C. § 411(a). While this requirement is not jurisdictional, Reed
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`Elsevier, Inc. v. Muchnick, 559 U.S. 154, 169 (2010), “[r]egistration is a prerequisite for
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`a copyright infringement action,” Darden v. Peters, 488 F.3d 277, 285 n.3 (4th Cir. 2007).
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`As a result, “[f]or plaintiffs to state a claim for which relief can be granted,” the copyright
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`that was allegedly infringed must be properly registered. Jefferson Airplane v. Berkeley
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`Sys., Inc., 886 F. Supp. 713, 715 (N.D. Cal. 1994).
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`Federal regulations divide copyrightable works into different classes for the
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`purpose of registration, include “Class PA” for audiovisual works and “Class SR” for
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`sound recordings. 37 C.F.R. § 202.3(b)(ii), (iv). The Copyright Act defines “audiovisual
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`works” as “works that consist of a series of related images which are intrinsically
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`intended to be shown by the use of machines . . . together with accompanying sounds, if
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`any, regardless of the nature of the material objects, such as films or tapes, in which the
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`works are embodied.” 17 U.S.C. § 101. Courts have found karaoke devices to be
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`audiovisual works for the purpose of copyright registration. Leadsinger, Inc., v. BMG
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`Music Pub., 512 F.3d 522, 527–28 (9th Cir. 2008); ABKCO Music, Inc. v. Stellar
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`Records, Inc., 96 F.3d 60, 65 (2d Cir. 1996), abrogation on other grounds recognized by
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`Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010). The Ninth Circuit explained that “the
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`visual representation of successive portions of song lyrics that Leadsinger’s [karaoke]
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`device projects onto a television screen constitutes ‘a series of related images,’” and “its
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`images of successive portions of song lyrics are ‘intrinsically intended to be shown by the
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`use of machine . . . together with accompanying sounds.’” Leadsinger, Inc., 512 F.3d at
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`5
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`2:17-cv-03327-DCN Date Filed 09/27/18 Entry Number 19 Page 6 of 14
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`528. In addition, “CD+G’s constitute ‘audiovisual works,’ since they ‘consist of a series
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`of related images’—the lyrics—‘together with accompanying sounds’—the music.”
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`ABKCO Music, Inc., 96 F.3d at 65 (quoting 17 U.S.C. § 101).
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`Because not all work neatly fits into just one class of work, copyright regulations
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`provide:
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`In cases where a work contains elements of authorship in which copyright
`is claimed which fall into two or more classes, the application should be
`submitted in the class most appropriate to the predominant type of
`authorship in the work as a whole. However, in any case where registration
`is sought for a work consisting of or including a sound recording in which
`copyright is claimed, the application shall be submitted on Form SR.
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`37 C.F.R. § 202.3(b)(2)(ii)(C); see also 2 Nimmer on Copyright § 7.18 (2018) (“Given
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`the existence of multimedia forms of expression, the question arises as to registration of
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`works that span several categories. In such cases, the appropriate classification should be
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`chosen depending on which type of authorship predominates.”).
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`While 37 C.F.R. § 202.3(b)(2)(ii)(C) provides copyright registrants with some
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`flexibility in choosing the registration form for their multimedia works, courts have
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`indicated that when the United States Copyright Office provides additional guidance on
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`which form should be used, the registrant must follow the guidance. See Jefferson
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`Airplane, 886 F. Supp. at 716–17. Courts give deference to the Copyright Office’s
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`interpretation of the Copyright Act when courts find the interpretation to be persuasive.
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`EMI Christian Music Grp., Inc. v. MP3tunes, LLC, 844 F.3d 79, 97 (2d Cir. 2016); see
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`also Ala. Stock, LLC v. Houghton Mifflin Harcourt Pub. Co., 747 F.3d 673, 684–85 (9th
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`Cir. 2014) (“[W]here the Copyright Office has announced its interpretation primarily
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`through ‘internal agency manuals [and] opinion letters, we defer to the Copyright
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`Office’s views expressed in such materials only to the extent that those interpretations
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`6
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`have the power to persuade.’” (citation omitted)). This interpretation exists in agency
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`manuals, opinion letters, and copyright forms. Ala. Stock, LLC, 747 F.3d at 684–85 &
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`685 n.52.
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`In EMI Christian Music Grp., Inc., the Second Circuit found persuasive a circular
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`issued by the Copyright Office discussing the use of a Form SR to register both sound
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`recordings and their associated images. 844 F.3d at 97. The copyright regulations only
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`permitted the use of a Form SR to register literary, dramatic, and musical works
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`associated with sound recordings, yet the plaintiff registered a sound recording and
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`associated images using Form SR. Id. at 96. The court explained that it was “persuaded
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`by the Copyright Office’s apparent view that there is no logical distinction between
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`‘literary’ works and ‘visual’ works associated with a sound recording such that the
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`former is properly registered on a Form SR but the latter is not.” Id. at 97. As a result,
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`the court held that the plaintiff’s registration using a Form SR was valid. Id.
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`Courts have used guidance from the Copyright Office when determining if
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`copyright claimants have properly classified their work during copyright registration. In
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`Jefferson Airplane, the defendant argued that the plaintiff’s copyright registration using
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`the form for Class N4 for its musical album only covered the sound recording and not the
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`cover art, and as a result, the cover art was unregistered. 886 F. Supp. at 716. The court
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`examined “the language defining class n [sic] and subsequent pronouncements and
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`practices of the Copyright Office” and determined that a separate registration was
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`required for the artwork. Id. The court relied on the Copyright Office Examination
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`Practices, which at the time specified that “[r]egistration in Class N cannot extend
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`4 At the time, a sound recording was registered under Class N.
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`protection to copyrightable matter appearing on a jacket, liner notes, or container, etc.,
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`even though such items form a part of the deposit for registration in Class N.” Id. The
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`court also examined a circular from the Copyright Office that explained that a separate
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`registration must be made for sound recordings and copyrightable material on disc
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`jackets. Id. at 716-17. After considering these two pieces of evidence along with a
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`declaration from the Register of Copyrights, the court found that the Class N registration
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`did not cover the artwork, and as such, the artwork was not properly registered. Id. at
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`717.
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`In contrast, in South Beach Skin Care, Inc. v. Dermaset, Inc., 2014 WL 11958623
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`(S.D. Fla. Aug. 18, 2014), the defendant argued that the only material on the plaintiff’s
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`website with a registered copyright was the text because the copyright was registered in
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`the TX (textual work) classification. Id. at *4. The court held that there was “no reason
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`to preclude protection beyond the textual content” because 37 C.F.R. § 202.3(b)(2)(ii)(C)
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`allowed for claiming copyright in two or more classes, and the defendant did not provide
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`any authority to suggest that a limitation like the one in Jefferson Airplane existed for
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`textual works. Id. The court distinguished Jefferson Airplane because, at the time of
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`Jefferson Airplane, the Copyright Office Examination Practices provided an explicit rule
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`that registration in Class N does not protect copyrightable material on an album jacket, so
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`Class N registration did not cover an album’s cover art. Id. In contrast, there was no
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`such explicit rule in South Beach Skin Care, Inc. that stated Class TX registrations do not
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`include other copyrightable works contained within the textual work. Id. Thus, the court
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`in South Beach Skin Care, Inc. held that the copyright for the plaintiff’s website covered
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`all of the content on the plaintiff’s website, including the non-text content, and was valid.
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`8
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`2:17-cv-03327-DCN Date Filed 09/27/18 Entry Number 19 Page 9 of 14
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`Id. Therefore, while courts will generally allow for flexibility in class registration when a
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`work may fall into two or more classes, that flexibility will be tempered when there is
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`additional Copyright Office guidance on registering a particular class of work.
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`Here, the copyrights for the compilations containing the Tracks were registered as
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`sound recordings on March 4, 2005 by Tennessee Production Center, Inc., the original
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`copyright claimant.5 In its complaint, Phoenix characterizes the Tracks as audiovisual
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`works. ECF No. 1 ¶¶ 11, 27– 30, 35–39, 55–58, 63, 75, 84. Moreover, Phoenix
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`describes a karaoke accompaniment track as “a re-recorded version of a popular song
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`without the lead vocals synchronized to a graphical component containing a lyric display,
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`cueing information, and other information.” Id. ¶ 11. This description comports with the
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`description of audiovisual works provided in the Copyright Act as well as the description
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`of karaoke devices found to be audiovisual works. Leadsinger, Inc., 512 F.3d at 528;
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`ABKCO Music, Inc., 96 F.3d at 65. Moreover, the compilations containing the Tracks
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`are sold on CD+Gs, which are audiovisual works. ABKCO Music, Inc., 96 F.3d at 65.
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`As a result, both the compilations containing the Tracks and the Tracks individually are
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`properly classified as audiovisual works, and they should have been registered as such.
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`Even assuming that the compilations containing the Tracks were registered
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`pursuant to 37 C.F.R. § 202.3(b)(2)(ii)(C), the compilations were still improperly
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`registered. At the time Tennessee Production Center, Inc. applied for copyright
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`protection of the compilations, there was explicit guidance from the Copyright Office that
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`5 It appears that at some point, Tennessee Production Center, Inc. assigned its copyrights
`for the Tracks to Piracy Recovery, LLC, who then assigned the copyrights to Phoenix.
`See ECF No. 1 ¶ 27; ECF No. 10 at 6. However, Phoenix does not make the history of
`the copyrights’ ownership clear.
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`9
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`2:17-cv-03327-DCN Date Filed 09/27/18 Entry Number 19 Page 10 of 14
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`explained that the compilations containing the Tracks needed to be registered as
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`audiovisual works. The second edition of the Compendium of Copyright Office
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`Practices—the operative edition when Tennessee Production Center, Inc. applied for
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`copyright protection for the compilations—instructed that sound recordings should be
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`registered under the SR classification. 2 Compendium of Copyright Office Practices §
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`604 at 600-3 (1998). By contrast, the Compendium instructed that “other audiovisual
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`works” should be registered under the PA classification. Id. It further stated that “[t]he
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`audio portions of audiovisual works, such as a motion picture soundtrack or an audio
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`cassette accompanying a filmstrip, are considered an integral part of the audiovisual work
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`and are registrable in Class PA rather than Class SR.” Id. § 702.05 at 700-3. The
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`guidance also clearly stated that “[s]ounds accompanying audiovisual works, whether
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`physically integrated with the audiovisual work (such as a soundtrack on a motion
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`picture) or fixed on a separate tape, disk, or other such object, are not sound recordings
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`under the statute.” Id. § 492 at 400-33. The example the Compendium gave of work that
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`should be registered as an audiovisual work, not a sound recording, is a multimedia kit
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`containing a filmstrip and an accompanying cassette tape. Id.
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`Here, the sound recording portions of the Tracks are the sounds accompanying the
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`audiovisual components, so pursuant to the Copyright Act and the Copyright Office’s
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`interpretation of it, the compilations and the Tracks are audiovisual works, not sound
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`recordings. Moreover, the Compendium’s example of an audiovisual work is analogous
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`to the Tracks. The Tracks consist of visual display components, like a filmstrip, and
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`accompanying sounds, like an accompanying cassette tape. Given the explicit guidance
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`for registering work that contains both sound recordings and audiovisual works, it is clear
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`2:17-cv-03327-DCN Date Filed 09/27/18 Entry Number 19 Page 11 of 14
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`that the compilations containing the Tracks should have been registered as audiovisual
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`works.
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`B. Single Work Registration
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`Kohn alternatively argues that the Tracks could not have been registered as a
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`single work as permitted by 37 C.F.R. § 202.3(b)(4) because sound recordings and
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`audiovisual works are not eligible to be registered together under a single registration.
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`ECF No. 9-1 at 5. Section 202.3(b)(4) allows all of the copyrightable elements of a
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`single published work to be registered on a single copyright application when the
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`elements of the work are (1) recognizable as self-contained works; (2) included in a
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`single unit of publication; and (3) claimed by the same copyright claimant. 37 C.F.R. §
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`202.3(b)(4)(i)(A); see also Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 205 (3d
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`Cir. 2005) (explaining when single work registration applies). In other words, single
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`work registration may be used when a claimant wants to register a group of self-
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`contained works under one copyright registration as long as the group is published in a
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`single unit and each work is claimed by the same claimant. While the copyright
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`regulations permit this type of registration, they provide no further guidance on how it
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`applies in conjunction with the classification of works. As such, Kohn interprets the
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`regulations to mean that, per the regulation providing instructions about registering sound
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`recordings, a single sound recording copyright may also apply only to “literary, dramatic,
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`and musical works embodied in phonorecords,” and as such, “[a]udiovisual works are
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`effectively excluded” from being registered with sound recordings as a single work. Id.
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`(citing 37 C.F.R. § 202.3(b)(iv)). Phoenix responds that this is a misinterpretation of the
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`regulations because classifications of work were created solely for administrative
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`11
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`2:17-cv-03327-DCN Date Filed 09/27/18 Entry Number 19 Page 12 of 14
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`registration purposes and “do[] not dictate whether multiple copyrightable elements
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`contained within a single work may be considered registered” as a single work. ECF No.
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`10 at 6. Moreover, Phoenix argues that under single work registration, each Track is
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`individually registered because the karaoke compilations as a whole were registered. Id.
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`at 4. Then Phoenix separately argues that because the compilations containing the Tracks
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`are published on CD+G discs and contain multiple copyrightable elements, namely
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`audiovisual works and sound recordings, both the audiovisual works and sound
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`recordings within the compilation containing the Tracks are properly registered as a
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`single work. Id. at 6–7.
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`A review of the relatively sparse case law discussing single work registration
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`suggests that this type of registration is only applicable when the copyrightable elements
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`within a single work all fall within the same type of work; for example, when all of the
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`elements within a single work are sound recordings. See United Fabrics Intern., Inc. v.
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`C&J Wear, Inc., 630 F.3d 1255, 1295 (9th Cir. 2011) (allowing registration of a group of
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`fabric designs as single registration); Kay Berry, Inc., 421 F.3d at 206 (allowing single
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`work registration for garden accent rocks published in the same catalog); Yurman Studio,
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`Inc. v. Castaneda, 591 F. Supp. 2d 471, 492 (S.D.N.Y. 2008) (holding that single work
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`registration of a jewelry collection results in each piece of jewelry also being registered);
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`Ocasio v. Alfano, 592 F. Supp. 2d 242, 244–45 (D.P.R. 2008) (holding that in a
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`collection of songs registered as a single work, each song within the collection was also
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`validly registered); Idearc Media Corp. v. Nw. Directories, Inc., 623 F. Supp. 2d 1223,
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`1230–31 (D. Or. 2008) (holding that because a directory with individual display ads was
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`properly registered, each ad was also registered).
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`2:17-cv-03327-DCN Date Filed 09/27/18 Entry Number 19 Page 13 of 14
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`Phoenix first argues that registering each karaoke track compilation as a single
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`work also registers each individual track within the compilations, including the Tracks.
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`ECF No. 10 at 4. The court agrees with this interpretation of single work registration.
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`The compilations include multiple self-contained works, which are the individual karaoke
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`tracks; each compilation is sold as a unit; and the copyright claimant, Tennessee
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`Production Center, Inc., is the same for each karaoke track. However, as discussed in
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`Section III.A, karaoke tracks are audiovisual works, regardless of whether they are
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`registered individually or as a compilation. Here, the compilations were registered as
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`sound recordings. As such, the compilations were not properly registered, meaning the
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`individual karaoke tracks, including the Tracks, were not properly registered.
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`Next, Phoenix asserts another interpretation of single work registration. Phoenix
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`argues that registering the sound recording elements of the compilations also registered
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`the audiovisual elements of the compilations. ECF No. 10 at 6. This argument is
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`incompatible with the case law interpreting single work registration. As discussed above,
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`single work registration is permissible when a copyright claimant wishes to register a
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`group of the same type of work, e.g., audiovisual work, to avoid individually registering
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`each work. For example, if a CD consisting of several sound recordings is registered as a
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`sound recording, copyright protection will exist for both the CD and the individual sound
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`recordings contained within the CD. Or in the instant case, if the karaoke track
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`compilations were properly registered as audiovisual works, each individual karaoke
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`track would also be registered as an audiovisual work using single work registration. By
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`contrast, Phoenix incorrectly claims that by registering its compilations as sound
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`recordings, single work registration protects both the sound recordings and the
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`2:17-cv-03327-DCN Date Filed 09/27/18 Entry Number 19 Page 14 of 14
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`audiovisual works within the compilations. This does not comport with the court’s
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`understanding of single work registration. Furthermore, the parties point to no case law
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`to suggest that single work registration applies when a single work has multiple
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`copyrightable elements that belong in different classes of work, such as sound recording
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`and audiovisual work, as is the case in the Tracks.
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`Phoenix cannot rely on single work registration to avoid the fact that the Tracks
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`were incorrectly registered as only sound recordings, even though they contain both
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`audiovisual and sound recording elements and should have been registered as audiovisual
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`works. Therefore, the audiovisual components and sound recording components of the
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`Tracks are not properly registered together as a single work. Without valid copyright
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`registration of the Tracks, Phoenix may not bring an action alleging infringement of the
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`Tracks’ copyright.
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`IV. CONCLUSION
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`For the foregoing reasons the court GRANTS Kohn’s motion to dismiss.
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`AND IT IS SO ORDERED.
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`September 27, 2018
`Charleston, South Carolina
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`DAVID C. NORTON
`UNITED STATES DISTRICT JUDGE
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