23-703 Nwosuocha v. Glover

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 10th day of May, two thousand twenty-four. 4 5 PRESENT: 6 DENNIS JACOBS, 7 MICHAEL H. PARK, 8 ALISON J. NATHAN, 9 Circuit Judges. 10 __________________________________________ 11 12 Emelike Nwosuocha, 13 14 Plaintiff-Appellant, 15 16 v. 23-703 17 18 Donald McKinley Glover, II, Sony Music 19 Entertainment, Young Stoner Life Publishing 20 LLC, Kobalt Music Publishing America, Inc., 21 DBA Songs of Kobalt Music Publishing, Theory 22 Entertainment LLC, DBA 300 Entertainment, 23 Atlantic Recording Corporation, Roc Nation 24 Publishing LLC, DBA Songs of Roc Nation, Songs 25 of Universal, Inc., WarnerTamerlane Publishing 26 Corp., Ludwig Emil Tomas Göransson, Jefferey 27 Lamar Williams, 28 29 Defendants-Appellees. * 30 __________________________________________

* The Clerk of Court is respectfully directed to amend the caption accordingly. 1 FOR PLAINTIFF-APPELLANT: GREGORY KEENAN, Digital Justice 2 Foundation, Floral Park, NY (Andrew 3 Grimm, Digital Justice Foundation, Omaha, 4 NE; Imran H. Ansari, Aidala, Bertuna & 5 Kamins, P.C., New York, NY on the briefs). 6 7 FOR DEFENDANTS-APPELLEES: JONATHAN D. DAVIS (Alyssa M. Pronley, 8 Anthony C. LoMonaco on the brief), 9 Jonathan D. Davis, P.C., New York, NY for 10 Donald McKinley Glover, II, Sony Music 11 Entertainment, Young Stoner Life Publishing 12 LLC, Kobalt Music Publishing America, Inc., 13 DBA Songs of Kobalt Music Publishing, 14 Theory Entertainment LLC, DBA 300 15 Entertainment, Atlantic Recording 16 Corporation, WarnerTamerlane Publishing 17 Corp., Ludwig Emil Tomas Göransson, & 18 Jefferey Lamar Williams. 19 Ilene S. Farkas & Donald S. Zakarin, Pryor 20 Cashman LLP, New York, NY for Songs of 21 Universal, Inc. 22 Alex Spiro & Paul B. Maslo, Quinn Emanuel 23 Urquhart & Sullivan LLP, New York, NY for 24 Roc Nation Publishing LLC, DBA Songs of 25 Roc Nation. 26 Appeal from a judgment of the United States District Court for the Southern District of

27 New York (Marrero, J.).

28 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

29 DECREED that the judgment of the district court is AFFIRMED.

30 Appellant Emelike Nwosuocha wrote a song called “Made in America” and published it

31 online in 2016. He claims that Appellees infringed his copyright with their own song “This is

32 America” in 2018. Appellees moved to dismiss, and the district court granted the motion in full.

33 It determined that Nwosuocha had not registered his copyright—a statutory prerequisite to suit

34 under

(a)—and that Appellees’ song did not infringe Nwosuocha’s copyright.

35 Nwosuocha challenges both decisions on appeal. We affirm the district court on the issue of

2 1 Nwosuocha’s registration and so do not reach whether Appellees’ song is infringing. We assume

2 the parties’ familiarity with the remaining underlying facts, procedural history of the case, and

3 issues on appeal.

4 We review a district court’s grant of a motion to dismiss de novo. See Alix v. McKinsey &

5 Co.,

(2d Cir. 2022).

6 Among other things, the Copyright Act protects “musical works, including any

7 accompanying words” and “sound recordings.”

(a)(2), (a)(7). An applicant may

8 seek copyright registrations for both a musical work and a sound recording of that work by

9 submitting the recording to the Register of Copyrights along with Form SR. See 37 C.F.R.

10 §§ 202.3(b)(1)(iv), (b)(2)(ii)(A); JA125-28 (Form SR). But the two copyrights, and their

11 registrations, are distinct.

12 To sue for copyright infringement, a plaintiff must first obtain a copyright registration. See

13

(a). Here, Nwosuocha registered the sound recording of his song but failed to

14 register the musical work itself. His complaint does not allege that he attempted or intended to

15 register more than a sound-recording copyright. But the only infringement claim he brings is for

16 infringement of his musical work, not of his sound recording. He thus failed to satisfy section

17 411(a)’s registration requirement before bringing this suit.

18 Nwosuocha makes two arguments to the contrary. First, he points to

(b),

19 which says that a “certificate of registration” permits suit “regardless of whether the certificate

20 contains any inaccurate information, unless—(A) the inaccurate information was included on the

21 application for copyright registration with knowledge that it was inaccurate; and (B) the inaccuracy

22 of the information, if known, would have caused the Register of Copyrights to refuse registration.”

23 Nwosuocha claims that his failure to register for a musical-work copyright amounts to filing an

3 1 application containing inaccurate information, so Appellees need to show that any inaccuracy was

2 both knowing and material. But section 411(b) says nothing about applying for a registration in

3 the wrong work—inadvertently or not. The plain language of that section refers to whether “any

4 inaccurate information . . . was included,”

(b)(1) (emphasis added), not whether

5 some additional information was excluded. And section 411(b) does not create a mechanism for

6 retroactively expanding a copyright registration to material that is not otherwise registered.

7 Nwosuocha cites the Supreme Court’s opinion in Unicolors, Inc. v. H&M Hennes &

8 Mauritz, L.P. for the proposition that a registration cannot be judicially invalidated by a “mistake

9 [of] labeling.” Appellant’s Br. at 36 (quoting

(2022)). But we do not invalidate

10 Nwosuocha’s registration. Rather, Nwosuocha’s problem is that his copyright registration is

11 simply for the wrong work—his sound recording rather than his musical composition. That

12 distinction is important. It is the difference between forgiving technical mistakes in a copyright

13 application and allowing applications to create registrations in material never mentioned.

14 Nwosuocha could not have filed an application for one song and then expanded the registration to

15 another by claiming that he meant to register both after the fact. He likewise cannot apply for only

16 a sound recording and expand the registration to the underlying musical work.

17 Second, Nwosuocha claims that the distinction between a sound recording and a musical

18 work is an administrative one imposed by the Register of Copyrights. The Register of Copyrights’

19 “administrative classification of works has no significance with respect to the subject matter of

20 copyright or the exclusive rights provided by [Title 17 of the United States Code].” 17 U.S.C.

21 § 408(c)(1). But the distinction between a sound recording and a musical work is not just an

22 administrative classification—it is created by statute. See

(a)(2), (a)(7). And that

23 statutory distinction is important because sound recordings and musical works are different artistic

4 1 works that can be copyrighted by different creators and are infringed in different ways. See 17

(setting out the scope of rights in sound recordings). Section 408(c)(1) thus cannot

3 expand Nwosuocha’s registration because the classification he seeks to overlook is not merely an

4 administrative one.

5 Finally, the district court dismissed Nwosuocha’s complaint for the independently

6 sufficient reason that Appellees’ song did not infringe Nwosuocha’s. We do not reach this issue

7 because we affirm the district court’s dismissal on other grounds.

8 ***

9 We have considered Nwosuocha’s remaining arguments and find them to lack merit. For

10 the foregoing reasons, we AFFIRM the judgment of the district court.

11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk of Court

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