Case 2:15-cv-01096-JLR Document 70 Filed 05/09/16 Page 1 of 14
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`The Honorable James L. Robart
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`VHT, INC., a Delaware Corporation,
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`Defendants.
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`PLAINTIFF’S OPP. TO MOTION FOR JUDGMENT ON THE PLEADINGS
`(2:15-cv-1096-JLR)
`DWT 29405730v2 0104728-000001
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`Davis Wright Tremaine LLP
`LAW OFFICES
`1201 Third Avenue, Suite 2200
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`
`No. 2:15-cv-1096-JLR
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`PLAINTIFF’S OPPOSITION TO
`ZILLOW’S MOTION FOR
`PARTIAL JUDGMENT ON THE
`PLEADINGS
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`NOTED ON MOTION
`CALENDAR:
`May 13, 2016
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`Plaintiff,
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`v.
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`ZILLOW GROUP, INC., a Washington
`corporation; and ZILLOW, INC., a Washington
`corporation,
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`Case 2:15-cv-01096-JLR Document 70 Filed 05/09/16 Page 2 of 14
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`I.
`Zillow’s motion suffers from false premises and telling omissions.
`First, Zillow claims that although VHT’s photographs are indisputably protected by
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`INTRODUCTION
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`copyright, VHT is not entitled to core remedies for infringement provided by the Copyright Act
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`– statutory damages and attorneys’ fees – unless the Copyright Office has approved the
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`formalities of the registration process before the infringement occurs. That is wrong on two
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`counts. The determination of registrability can be made either by the Copyright Office or by
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`the Court. And once registrability is established, the “effective date” of that registration (after
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`which a plaintiff is entitled to statutory damages for later occurring infringements and
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`attorneys’ fees) is the date the application to register was filed in the Copyright Office.
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`The plain language of the Copyright Act is flatly inconsistent with Zillow’s argument:
`• Under 17 U.S.C. § 412, the availability of statutory damages and attorneys’
`fees depends on “the effective date of registration,” rather than the date the
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`Copyright Office or a court determines registrability;
`• 17 U.S.C. § 410(d) provides that “[t]he effective date of a copyright
`registration is the day on which an application, deposit, and fee, which are
`later determined by the Register of Copyrights or by a court of competent
`jurisdiction to be acceptable for registration, have all been received in the
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`Copyright Office” (emphasis added); and
`• 17 U.S.C. § 411 provides the statutory mechanism under which a court
`makes that determination in an infringement action: “In any case … where
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`the deposit, application, and fee required for registration have been
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`delivered to the Copyright Office in proper form and registration has been
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`refused, the applicant is entitled to institute a civil action for infringement if
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`notice thereof, with a copy of the complaint, is served on the Register of
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`Copyrights. The Register may, at his or her option, become a party to the
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`action with respect to the issue of registrability of the copyright claim by
`PLAINTIFF’S OPP. TO MOTION FOR JUDGMENT ON THE PLEADINGS
`(2:15-cv-1096-JLR) - 1
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`Davis Wright Tremaine LLP
`LAW OFFICES
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`Seattle, WA 98101-3045
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`Case 2:15-cv-01096-JLR Document 70 Filed 05/09/16 Page 3 of 14
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`entering an appearance within sixty days after such service, but the
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`Register’s failure to become a party shall not deprive the court of
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`jurisdiction to determine that issue.”
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`On April 18, 2016, VHT served the Copyright Office with the requisite § 411 notice so that
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`VHT can put the issue of the registrability of its copyrights before this Court as soon as the
`Office decides whether to intervene. Two days later, Zillow filed this motion, never once so
`much as mentioning in its moving papers VHT’s § 411 Notice, the Court’s authority to
`decide registrability, or that the effective date is the date of filing regardless of by whom and
`when the registrability determination is made.
`Second, contrary to Zillow’s implication, the Copyright Office’s initial denials of some
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`(but not all) of VHT’s registrations were not based on the substance of VHT’s copyright
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`claim—neither the copyrightability of VHT’s photos, nor its ownership of them, were disputed
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`by the Copyright Office. To the contrary, the Office expressly acknowledged that VHT’s
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`photos were protected by copyright, but nonetheless refused to register them based on a narrow
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`technical issue related to the formalities of the application forms.
`Finally, it is disingenuous for Zillow to argue that VHT somehow “obfuscated” the
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`denial of its applications. Dkt. No. 69, p. 4. The fact is, Zillow has known for months about
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`the status of those applications. When the complaint was filed, the applications were pending,
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`as the complaint (Dkt. No. 1) recites. When, thereafter, the denials were issued, VHT disclosed
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`that fact in its reply papers on its later-withdrawn motion to compel filed January 22, 2016
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`(Dkt. No. 59, ¶¶ 7-8), and shortly thereafter produced the relevant documents to Zillow in
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`discovery (Declaration of Jonathan M. Lloyd (“Lloyd Decl.”), ¶ 2).
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`This motion is but a shallow litigation tactic employed to try to narrow Zillow’s
`exposure and thereby avoid its discovery obligations.1 The Court’s clear statutory authority to
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`1 Even if, contrary to law, statutory damages were not available, VHT will be entitled to millions of dollars in
`actual damages and infringing profits, pursuant to 17 U.S.C. § 504(b). Based on VHT’s research of comparable
`photographic licensing offerings and the significant number of Zillow infringements now known, VHT calculates
`that its actual damages from lost licenses are in the tens of millions of dollars. (Dkt. No. 57, ¶5). In addition,
`PLAINTIFF’S OPP. TO MOTION FOR JUDGMENT ON THE PLEADINGS
`Davis Wright Tremaine LLP
`(2:15-cv-1096-JLR) - 2
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`Case 2:15-cv-01096-JLR Document 70 Filed 05/09/16 Page 4 of 14
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`decide these issues and VHT’s invocation of the statutory mechanisms for the Court to do so
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`are more than sufficient to establish that VHT has a plausible claim to relief including statutory
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`damages and attorneys’ fees—all that is required to withstand this Rule 12(c) motion.
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`II.
`FACTS
`Applications pending when lawsuit filed. When this action was commenced on July 8,
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`2015, VHT’s applications for registration of the photographs at issue had been submitted to the
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`Copyright Office but the Office had yet to make a determination. The Ninth Circuit has
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`expressly approved proceeding with a lawsuit during the pendency of an application for
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`registration. See Cosmetic Ideas, Inc. v. IAC/Interactive Corp., 606 F.3d 612, 621 (9th Cir.
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`2010).
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`Nature of Copyright Office’s initial rejection. On September 22, 2015, the Copyright
`Office denied a number of VHT’s applications.2 Those denials were not based on the substance
`of VHT’s copyright claim; the copyrightability of VHT’s photos and its ownership of those
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`photos were not disputed by the Copyright Office. The Office took issue only with the
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`particular form of registration VHT was using, namely registration of an automated database
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`and its updates pursuant to 37 C.F.R. § 202.3(b)(5) and Compendium of U.S. Copyright Office
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`Practices (3d ed. 2014) (“Compendium”), § 1117.
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`The Copyright Office refused to register VHT’s photos under this particular provision,
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`but expressly stated that “[t]he photographs can be registered” by other means. See Declaration
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`of Patrick C. Bageant (“Bageant Decl.”), Exs. A-C. The problem is that the alternate means of
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`registration offered by the Copyright Office (Compendium § 1116.1) is not feasible. The sheer
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`volume of individual works involved ˗ VHT’s copyrighted content is embodied in a
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`voluminous database of professional real-estate photography including millions of images,
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`VHT has suffered further damages due to lost licensing opportunities for other uses in an amount that is still
`unknown and that will be proven at trial. (Id.)
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` As of the date of the Request for Reconsideration, VHT had submitted ten applications, only eight of which had
`been rejected. Since all of VHT’s applications concern updates to the same database of photographs and have
`been filed pursuant to the same method of registration, resolution of the registrability issue with respect to the
`eight applications previously refused would resolve any issues as to the remaining applications, as well.
`PLAINTIFF’S OPP. TO MOTION FOR JUDGMENT ON THE PLEADINGS
`Davis Wright Tremaine LLP
`(2:15-cv-1096-JLR) - 3
`LAW OFFICES
`DWT 29405730v2 0104728-000001
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`Case 2:15-cv-01096-JLR Document 70 Filed 05/09/16 Page 5 of 14
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`updated at the rate of over 10,000 new images each month (Dkt. No. 59, ¶ 3) ˗ renders filing of
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`individual applications for each photo so burdensome as to be impossible. Likewise, the
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`alternative collective filing provision the Office cited would require VHT to file separate
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`applications for each of the dozens of photographers VHT retains each calendar year to take
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`photos of homes on a work-for-hire basis around the country, because although that provision
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`allows for registrations of multiple works under one application, they must all be by the same
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`author. That too is virtually impossible for VHT (and similarly situated photography studios,
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`stock houses and news agencies) as a practical matter.
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`VHT filed its applications under §1117 of the Compendium because the Office and the
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`courts have long recognized the propriety of that filing. The Copyright Office has granted
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`registrations of automated databases of photographs to stock photography companies pursuant
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`to that very section of the Compendium. Indeed, this Section was designed for this precise
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`purpose; as it states: “The group registration option for photographic databases is only
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`available for database owners, such as stock photography agencies or other copyright owners
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`that wish to register the authorship involved in creating the database, as well as the photographs
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`within the database that were authored by or transferred to the copyright claimant.”
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`Compendium Section 1117. See also id., Section 1117.2 (noting that database registration
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`method is appropriate for “text and photographs that appear in a database of real estate
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`listings”); 77 Fed. Reg. 40269 (under 37 C.F.R. 202.3(b)(5), “stock photography agencies have
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`registered all the photographs added to their databases within a three-month period when they
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`have obtained copyright assignments from the photographers.”). The Ninth Circuit has
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`expressly upheld the validity of the registrations of stock photography databases using this
`exact method, to protect both the overall database and the individual photos within it. See
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`Alaska Stock Photo LLC v. Houghton Mifflin Harcourt Pub. Co., 747 F.3d 673, 685 (9th Cir.
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`2014); see also, Metro. Reg’l Info. Sys. v. Amer. Home Realty Network, Inc., 722 F. 3d 591 (4th
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`Cir. 2013).
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`PLAINTIFF’S OPP. TO MOTION FOR JUDGMENT ON THE PLEADINGS
`(2:15-cv-1096-JLR) - 4
`DWT 29405730v2 0104728-000001
`
`Davis Wright Tremaine LLP
`LAW OFFICES
`1201 Third Avenue, Suite 2200
`Seattle, WA 98101-3045
`206.622.3150 main · 206.757.7700 fax
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`Case 2:15-cv-01096-JLR Document 70 Filed 05/09/16 Page 6 of 14
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`Contrary to its own prior practice and that appellate authority, the Copyright Office
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`denied VHT’s applications claiming that a database registration requires “compilation
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`authorship” and, in its view, VHT had not demonstrated that element (i.e., that there was
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`creative authorship in the selection and arrangement of the photos in the database, in addition to
`the authorship of the individual photos),3 providing no explanation whatsoever as to why it was
`now mandating this additional requirement. See Bageant Decl., Exs. A-C.
`Continuing Copyright Office reconsideration process. Zillow also neglects to mention
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`that under the Compendium, an initial Copyright Office denial is not the end of the
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`administrative process and does not constitute a final rejection. There are two sequential levels
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`for reconsideration within the Office and after that, review by the Courts. See Compendium
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`§§ 1703-1706, see also 37 C.F.R. 202.5(b)(4). VHT elected to seek first level reconsideration
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`on December 14, 2015, arguing both that the “compilation” requirement was a new rule that the
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`Copyright Office had never before applied to bar stock photography database registrations and
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`that, in any event, VHT’s database meets this requirement. See Bageant Decl., Ex. D.
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`Section 1703.2 of the Compendium states that “[t]he Office will respond to the first
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`request [for reconsideration] within four months after the date that the first request was
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`received.” Shortly before the April 15 deadline for that response, the Office advised VHT that
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`no determination would be forthcoming for at least several more months. See Lloyd Decl., Ex.
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`A. Given that further delay and because Section 411 gives the Copyright Office 60 days after
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`being served with statutory notice to decide whether to intervene, VHT decided it could no
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`longer await the outcome of the administrative process. Therefore, on April 18, 2016, it
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`invoked 17 U.S.C. § 411 by serving a copy of the amended complaint along with a letter clearly
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`labeled (on both the letter and the box it was sent in) “Section 411(a) Notice to the Register of
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`Copyrights” on the Copyright Office, the U.S. Attorney General and the U.S. Attorney for the
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`Western District of Washington. 37 C.F.R. §205.13; see Lloyd Decl., ¶ 3 & Exs. A-D. That
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`3 Although other procedural issues were initially raised by the Examiner, VHT ultimately resolved those matters
`with the Copyright Office, and the “compilation” issue was the sole basis for the denial.
`PLAINTIFF’S OPP. TO MOTION FOR JUDGMENT ON THE PLEADINGS
`Davis Wright Tremaine LLP
`(2:15-cv-1096-JLR) - 5
`LAW OFFICES
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`Case 2:15-cv-01096-JLR Document 70 Filed 05/09/16 Page 7 of 14
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`same day, VHT served an electronic copy of the 411 notice on Zillow, pursuant to the parties’
`agreement on electronic service.4 See id., ¶ 4 & Ex. E. The Copyright Office now has 60 days
`from April 19 to decide whether it wishes to intervene in this action. See id., ¶ 3; 17 U.S.C.
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`§ 411 (2008).
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`A.
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`III. ARGUMENT
`The Copyright Act Empowers this Court to Determine that the Photos are
`Registrable
`The Copyright Act, 17 U.S.C. § 411, provides: “In any case … where the deposit,
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`application, and fee required for registration have been delivered to the Copyright Office in
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`proper form and registration has been refused, the applicant is entitled to institute a civil action
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`for infringement if notice thereof, with a copy of the complaint, is served on the Register of
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`Copyrights. The Register may, at his or her option, become a party to the action with respect to
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`the issue of registrability of the copyright claim by entering an appearance within sixty days
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`after such service, but the Register’s failure to become a party shall not deprive the court of
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`jurisdiction to determine that issue.”
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`As the Ninth Circuit has explained: “As is evident, a party may now sue for
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`infringement notwithstanding the refusal of the Register to register the claim to copyright. The
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`only precondition is that notice be served on the Register. Once that has occurred, the district
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`court can determine both the validity of the copyright, which in turn determines its
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`registrability, as well as whether an infringement has occurred.” Nova Stylings, Inc. v. Ladd,
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`695 F.2d 1179, 1181 (9th Cir. 1983).
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`4 VHT’s Section 411 Notice to the Copyright Office may be considered on this motion for the same reason that
`Zillow argues the Office’s denials may be considered: they are public records of which the Court may take
`judicial notice. See Dkt. No. 69 at 10-11; 17 U.S.C. 705 (“records of deposits, registrations, recordations, and
`other actions taken under this title… shall be open to public inspection”). In addition, if the denials may be
`considered by the Court because they are “integral” to VHT’s claims, as Zillow suggests, then there is no logical
`reason why VHT’s notice invoking Section 411, so that the Court may make its own determination under the
`Copyright Act, is not equally “integral”. See Dkt. No. 69 at 11.
`PLAINTIFF’S OPP. TO MOTION FOR JUDGMENT ON THE PLEADINGS
`(2:15-cv-1096-JLR) - 6
`DWT 29405730v2 0104728-000001
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`Davis Wright Tremaine LLP
`LAW OFFICES
`1201 Third Avenue, Suite 2200
`Seattle, WA 98101-3045
`206.622.3150 main · 206.757.7700 fax
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`Case 2:15-cv-01096-JLR Document 70 Filed 05/09/16 Page 8 of 14
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`B.
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`VHT is Entitled to Statutory Damages and Attorneys’ Fees Upon the
`Court’s Determination that the Photos are Registrable
`17 U.S.C. § 412 provides, in relevant part: “no award of statutory damages or of
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`attorney’s fees, as provided by sections 504 and 505, shall be made for… any infringement of
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`copyright commenced after first publication of the work and before the effective date of its
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`registration, unless such registration is made within three months after the first publication of
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`the work.” Contrary to Zillow’s claims (e.g., Dkt. No. 69 at 4:6-7; 8:11-16), the Copyright Act
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`does not require actual registration by the Copyright Office as an absolute prerequisite to
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`recovery of these types of remedies. The statute provides that these remedies are unavailable if
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`the infringement occurs more than three months before “the effective date of registration.” In
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`turn, 17 U.S.C. § 410(d) provides that: “The effective date of a copyright registration is the day
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`on which an application, deposit, and fee, which are later determined by the Register of
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`Copyrights or by a court of competent jurisdiction to be acceptable for registration, have all
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`been received in the Copyright Office.” This statute is echoed by the Compendium, Section
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`625.5, which provides “The date on which the U.S. Copyright Office receives an application
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`for registration will constitute the effective date of registration [] if… the Office refuses the
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`claim and a court of competent jurisdiction later determines that the work was registrable.”
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`The Court’s power under § 411 includes the power to decide that a work is “acceptable
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`for registration” for purposes of § 412 damages, since § 411 provides that the court has
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`jurisdiction to determine “registrability of the copyright claim[.]” See Nova, 695 F.2d at 1181
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`(“the district court can determine both the validity of the copyright, which in turn determines its
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`registrability, as well as whether an infringement has occurred”); Ward v. Nat. Geographic.
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`Soc’y, 208 F. Supp. 2d 429, 445 (S.D.N.Y. 2002) (“The plain meaning of the words ‘action for
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`infringement’ [in Section 411] indicates that all issues typically raised in an infringement suit,
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`including ownership and validity, are open in a Section 411(a) suit.”). See also id. at 446 (“The
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`case law implicitly supports the conclusion that a district court resolves the full panoply of
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`copyright infringement issues in a suit under Section 411(a), regardless of the propriety of a
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`denial of registration[.]”); Scentsy, Inc. v. B.R. Chase, LLC, 942 F. Supp. 2d 1045, 1051 (D.
`PLAINTIFF’S OPP. TO MOTION FOR JUDGMENT ON THE PLEADINGS
`(2:15-cv-1096-JLR) - 7
`DWT 29405730v2 0104728-000001
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`Davis Wright Tremaine LLP
`LAW OFFICES
`1201 Third Avenue, Suite 2200
`Seattle, WA 98101-3045
`206.622.3150 main · 206.757.7700 fax
`
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`Case 2:15-cv-01096-JLR Document 70 Filed 05/09/16 Page 9 of 14
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`Idaho 2013) (internal quote omitted), aff’d in relevant part, 585 Fed. Appx. 621 (9th Cir. 2014)
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`(“[T]he registration requirement does not limit the Court's authority to protect [plaintiff’s]
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`copyrights to their full extent. … [C]ourts engage in an independent evaluation of the full
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`panoply of copyright infringement issues in such a suit.”).
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`Zillow’s argument based on the continuing infringement doctrine (Dkt. No. 69 at 9) is
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`simply beside the point: of course it is the time of the first act of infringement in an ongoing
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`series of infringements that matters for purposes of determining whether that infringement
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`occurred before or after the effective date of the registration, but that says absolutely nothing
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`about how to determine the effective date. Under § 412, upon a determination that VHT’s
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`photos are registrable, the “effective date” of registration will be the date the application
`materials were originally received by the Copyright Office, not the date of the Court’s
`determination. The same would be true if the Copyright Office were to grant VHT’s pending
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`request for reconsideration; upon that grant, the “effective date of registration” would relate
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`back to the original date the Copyright Office received the application materials under
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`Section 412. VHT’s claims for statutory damages for each of the thousands of individual
`photos Zillow infringed thereafter5 and for attorneys’ fees are not premised upon Zillow’s
`“continuing violation,” but rather on Zillow’s original acts of infringement after VHT filed its
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`applications.
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`5 Despite Zillow’s prior suggestion that VHT is limited to a single award of statutory damages because VHT’s
`copyright covers both the individual photos and the compilation of them, (Dkt. No. 50, p. 5), the Ninth Circuit has
`adopted the independent economic value test, which permits separate statutory awards for each work within a
`compilation that can “live their own copyright life.” Columbia Pictures Television, Inc. v. Krypton Broad. of
`Birmingham, Inc., 259 F.3d 1186, 1193 (9th Cir. 2001) (internal quotations omitted). Under this framework, in
`Playboy Enterprises Inc. v. Sanfilippo, No. 97-0670-IEG (LSP), 1998 WL 207856, at *5 (S.D. Cal. Mar. 25,
`1998), plaintiff alleged that defendants had infringed thousands of copyrights by placing images from plaintiff’s
`magazine on defendants’ website; defendants argued that because each magazine issue was a compilation,
`“defendant should only be liable for a singular violation [per issue]…and not for separate violations of each
`image[.]”. Id. But the court held that “each image represents a singular and copyrightable effort” and granted
`nearly 7500 statutory damage awards totaling almost $4 million. Id. See also Arista Records LLC v. Lime Grp.
`LLC, 2011 WL 1311771, *4 n.6 (S.D.N.Y. April 4, 2011) (although box set of Rolling Stones albums “is
`technically a compilation of all of the works contained therein,” court rejected argument that plaintiff “is entitled
`to only one statutory damage award for all 25 songs, simply because those 25 songs have also been issued as part
`of one compilation”).
`PLAINTIFF’S OPP. TO MOTION FOR JUDGMENT ON THE PLEADINGS
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`The cases Zillow cites (Dkt. No. 69 at 9) are not to the contrary because in each one,
`plaintiff had not even begun the registration process when the infringement commenced. See
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`Choyce v. SF Bay Area Indep.Media Ctr., 2013 WL 6234628, *3 (N.D. Cal. Dec. 2, 2013) (“the
`Complaint fails to allege that Plaintiff has registered his alleged copyright or even submitted a
`complete application”) (emphasis added); Dos Santos v. Telemundo Commc’ns Grp., LLC
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`2012 WL 9503003, *7 (C.D. Cal. Dec. 19, 2012) (“because Plaintiffs registered the songs in
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`mid–2012, they cannot seek statutory damages and attorneys’ fees for infringement that
`allegedly began in 2009”). 6
`At core, Zillow’s argument that VHT must have a registration certificate in hand prior
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`to the infringement in order to be entitled to statutory damages is totally irreconcilable with
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`Ninth Circuit’s adoption of the “application approach” to registration formalities in Cosmetic
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`Ideas, 606 F.3d at 620-21, and the entire rationale therefor. In that case, the Court declined to
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`impose a strict prior-registration requirement on copyright plaintiffs, recognizing that “[o]nly
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`the application approach fully protects litigants from any disadvantage caused by [registration]
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`timelag” and “to ensure that an applicant did not suffer the consequences of a delay by the
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`Register” in issuing a registration.” Id. at 620-621. The delays VHT has experienced with its
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`applications perfectly illustrate this point: it began filing in early January 2014, and did not
`receive the initial rejections in September 2015 – a year and nine months later. See Bageant
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`Decl., Exs. A-D. Requiring VHT to have received a registration rather than to have filed its
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`application before the infringement in order to obtain statutory damages would bring about
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`6Two district courts in this Circuit have cursorily cited in dicta to a passage in Nimmer for the proposition that
`“issuance of a registration certificate is a condition to statutory damages.” Corbis Corp. v. Amazon.com, 351 F.
`Supp. 2d 1090, 1112 (W.D. Wash. 2004), quoting 2 Nimmer on Copyright § 7.16[B][1][a], at 7-155; see also
`Breakdown Servs., Ltd. v. My Entm’t World, Inc., 2009 U.S. Dist. LEXIS 92054, at *7 (C.D. Cal. Sept. 18, 2009).
`Neither of these cases ultimately dealt with the statutory damages issue present here, and most importantly, both of
`those cases applied the “registration rule” that was squarely rejected by the Ninth Circuit in Cosmetic Ideas.
`Notably, the Ninth Circuit discussed copyright holders’ ability to bring suit after filing an application under
`Section 410, and their ability to recover statutory damages and attorneys’ fees under Section 412 using identical
`“registration” terminology (while recognizing that prima facie validity under Section 410(c) is based on whether
`the copyright holder “secures a registration certificate”), and specifically noted that Section 412’s limitation on
`statutory damages and attorneys’ fees applies to “infringement occurring prior to the effective date of
`registration”. Cosmetic Ideas, 606 F.3d at 619 & n.11 (emphasis added).
`PLAINTIFF’S OPP. TO MOTION FOR JUDGMENT ON THE PLEADINGS
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`Case 2:15-cv-01096-JLR Document 70 Filed 05/09/16 Page 11 of 14
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`precisely the harm Cosmetic Ideas warned against – namely it would elevate “the type of
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`needless formality” Congress declined to impose.
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`C.
`This Motion is “Simply A Litigation ‘Gotcha’”
`Given that the Copyright Act gives this Court the power to decide that VHT’s images
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`are registrable and that VHT is therefore eligible for statutory damages and attorneys’ fees, it is
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`clear that the FAC states “a plausible claim for relief” with respect to these remedies – all that
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`is required to withstand a Rule 12(c) motion. Lyon v. Chase Bank USA, N.A., 656 F.3d 877,
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`885 (9th Cir. 2011). While the Court need not actually decide the registrability issue on this
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`motion (and should not do so before the Copyright Office has an opportunity to intervene),
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`VHT’s entitlement to that relief is far more than just “plausible”.
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`There can be no doubt that VHT’s individual photos are protected by copyright. See 17
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`U.S.C. §§ 102 (“Copyright protection subsists” in “pictorial, graphic, and sculptural works”);
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`101 (defining “pictorial, graphic and sculptural works” to include “photographs”); see also
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`Kisch v. Ammirati & Puris, Inc., 657 F. Supp. 380, 382 (S.D.N.Y. 1987). And there is also no
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`dispute that VHT owns these images, since VHT’s photographers created these images as
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`works-for-hire for the benefit of VHT. See Amended Complaint (Dkt. No. 53), ¶¶ 19-20. The
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`Copyright Office has never asserted otherwise, nor could it. See Bageant Decl., Exs. A-C
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`(“The photographs can be registered…”). Rather, the Copyright Office’s denial, and Zillow’s
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`argument on this motion, are based entirely on a technical dispute over the procedure by which
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`VHT has sought to register these images. As the leading commentator notes, in cases where
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`there is no reasonable argument that a work is not protected by copyright, a motion to dismiss
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`based on “the defense of non-registration” is “simply a litigation ‘gotcha!’” that should be
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`rejected. 2 Nimmer on Copyright § 7.16[B][3][b][vi].
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`As Professor Nimmer further explains: “When the Copyright Office declines to issue a
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`registration certificate, the prima facie presumption of validity is lost, but plaintiff does not
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`thereby face dismissal. As one scholarly opinion explains, ‘the plaintiff need not demonstrate
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`that the Copyright Office's denial of registration was erroneous in order to survive the
`PLAINTIFF’S OPP. TO MOTION FOR JUDGMENT ON THE PLEADINGS
`(2:15-cv-1096-JLR) - 10
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`206.622.3150 main · 206.757.7700 fax
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`Case 2:15-cv-01096-JLR Document 70 Filed 05/09/16 Page 12 of 14
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`defendants’ motion for summary judgment on the infringement claim, as the district court
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`makes an independent determination of copyright ownership when the plaintiff sues under
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`Section 411(a), just as in any other infringement action.’” 3 Nimmer on Copyright
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`§ 12.11[B][3] (citing Ward, 208 F. Supp. 2d at 444-45). “The most common pattern… is for
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`courts adjudicating infringement actions simply to reach their own determinations, without
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`adverting either to the agency’s general level of expertise or to the Copyright Office’s
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`particular determination via its issuance (or denial) of a certificate.” Id.
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`The Ninth Circuit agrees. See Cosmetic Ideas, 606 F.3d at 621 (“the Register’s decision
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`of whether or not to grant a registration certificate is largely perfunctory, and is ultimately
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`reviewable by the courts”); id. at 621 n.13 (“After the Register’s determination, the courts are
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`empowered to review any denial of a certificate, and approval by the Register gives an
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`applicant only prima facie evidence of copyright, leaving the courts to make the ultimate
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`determination in either instance.”) (citing 17 U.S.C. §§ 411(a) and 410(c)); Batjac Prods, Inc.
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`v. Goodtimes Home Video Corp., 160 F.3d 1223 (9th Cir. 1998) (conducting independent
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`analysis of claim denied by Copyright Office and noting that the Copyright Office’s
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`determination is entitled to deference only “if reasonable”).
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`Finally, VHT respectfully requests leave to amend its complaint, as it intended to do
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`once the 60-day period for the Copyright Office to intervene runs, to seek a determination of
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`regist