Gallup, Inc. v. Kenexa Corp. , 149 F. App'x 94 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
9-19-2005
Gallup Inc v. Kenexa Corp
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4368
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4368
GALLUP, INC.,
d/b/a The Gallup Organization,
Appellant
v.
KENEXA CORPORATION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
District Court No. 00-cv-05523
District Court Judge: The Honorable Lawrence F. Stengel
Submitted Under Third Circuit LAR 34.1(a)
July 15, 2005
Before: ALITO, VAN ANTWERPEN, and ALDISERT, Circuit Judges
(Opinion Filed: September 19, 2005)
OPINION OF THE COURT
PER CURIAM:
Gallup, Inc. (“Gallup”) appeals from a final order of the District Court awarding
summary judgment to Kenexa Corporation (“Kenexa”) on Gallup’s claim for copyright
infringement. Gallup argues that the District Court erred in declaring its copyright
registration invalid and incapable of supporting an action for infringement. For the
reasons set forth below, we agree with Gallup, and we vacate the District Court’s order.
I.
An award of summary judgment receives plenary review. See In re Ikon Office
Solutions, Inc., 277 F.3d 658, 665 (3d Cir. 2002). A motion for summary judgment
should be granted “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). In applying this test, the Court must draw all reasonable
inferences from the evidence in favor of the nonmoving party and may not weigh the
evidence or assess credibility. See Country Floors, Inc. v. A P’ship Composed of Gepner
& Ford, 930 F.2d 1056, 1061-62 (3d Cir. 1991).
II.
The parties dispute which version of the survey Gallup intended to register, but
this issue is a red herring. Under 17 U.S.C. § 408(b)(2), “the material deposited for
registration shall include . . . two complete copies or phonorecords of the best edition.”
The words “material deposited for registration” indicate that the registration attaches to
the material deposited, provided of course that the remaining statutory requirements for
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registration are satisfied. The Copyright Act imposes no intent requirement, and we are
unaware of any authority that has read one into it. Such a requirement would be
inconsistent with the formalistic nature of the registration process and the forgiveness
courts have traditionally shown toward erroneous applications. See, e.g., Masquerade
Novelty, Inc. v. Unique Indus., Inc., 912 F.2d 663, 667-68 & n.5 (3d Cir. 1990); Nadel &
Sons Toy Corp. v. William Shaland Corp., 657 F. Supp. 133, 136 (S.D.N.Y. 1987); 2
Melville B. Nimmer & David Nimmer, Nimmer on Copyright §§ 7.20[B], 7.21[A]
(2005).
Gallup clearly satisfied the deposit requirement under these standards. For
purposes of this appeal, it is undisputed that Gallup owned a valid copyright in the 1998
version of the survey. It is also undisputed that Gallup deposited two copies of the 1998
version as part of its application for registration. Under the plain language of 17 U.S.C.
§ 408(b)(2), Gallup satisfied the deposit requirement for any copyright it owned in that
version. The effectiveness of this deposit would not be vitiated even if Kenexa could
show that Gallup had intended to deposit some other work instead.
Because Gallup is seeking to enforce a copyright in the same work that it
deposited, this case bears little resemblance to the authorities cited by Kenexa. See Coles
v. Wonder, 283 F.3d 798 (6th Cir. 2002); Geoscan, Inc. of Tex. v. Geotrace Techs., Inc.,
226 F.3d 387 (2d Cir. 2000); Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (9th Cir.
1998). In each of those cases, the plaintiff was trying to enforce a copyright in work X
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but had deposited a copy of work Y. Work Y was either a reconstruction of work X, see
Coles, 283 F.3d at 802; Kodadek, 152 F.3d at 1212, or a later version of work X, see
Geoscan, 226 F.3d at 393. The Court in each case held that the plaintiff’s registration
could not support an infringement action because the work deposited was not a “bona
fide” copy of the work in which the copyright was claimed. See, e.g., Kodadek, 152 F.3d
at 1211. These cases cannot guide our decision because Gallup, unlike the plaintiffs
there, deposited the same work that it now claims was infringed.
The facts of this case more closely resemble those of Dynamic Solutions, Inc. v.
Planning & Control, Inc., 646 F. Supp. 1329 (S.D.N.Y. 1986). The plaintiff there had
deposited the 1986 versions of two software programs, but its application averred that
they were created and published in 1983 and 1984. The Court found this discrepancy
irrelevant to whether the deposit requirement was satisfied. See id. at 1341. According to
the Court, the relevant fact was that the plaintiffs had deposited “the versions of the
programs which defendants were ‘caught’ using in 1986 and which it asserts were
infringed.” Id. at 1342. In other words, the deposit could support the action for
infringement because the plaintiff had deposited the very work on which the litigation
was based.
Because Gallup deposited two copies of the 1998 version of the survey with the
Copyright Office, it satisfied the deposit requirement for a registered copyright in that
version. It does not follow, however, that Gallup’s registration was valid. Under 17
4
U.S.C. § 408(a), the registrant must furnish an application and a fee along with the
deposit. Kenexa argues that misrepresentations in Gallup’s application invalidate the
registration and afford an alternative ground for affirmance.
This Court has held that an otherwise valid registration is not jeopardized by
inadvertent, immaterial errors in an application. See Raquel v. Educ. Mgmt. Corp., 196
F.3d 171, 177 (3d Cir. 1999), cert. granted and judgment vacated on other grounds, 531
U.S. 952 (2000). A misstatement is material if it “might have influenced the Copyright
Office’s decision to issue the registration.” Raquel, 196 F.3d at 177. Significantly, the
Register reviews applications only to determine whether “the material deposited
constitutes copyrightable subject matter and [whether] the other legal and formal
requirements . . . have been met.” 17 U.S.C. § 410(a); see also 2 Nimmer & Nimmer,
supra, § 7.21[A]. In practice, therefore, a misrepresentation is likely to affect the
Register’s decision only if it concerns the copyrightability of the work. E.g.,
Whimsicality, Inc. v. Rubie’s Costume Co., 891 F.2d 452, 456 (2d Cir. 1989).
The misrepresentations in Gallup’s application were plainly immaterial under these
standards. The survey would have been copyrightable regardless of when it was created
and published, and a certificate of registration would have issued in either case. Indeed, a
certificate did issue after Gallup filed an application for supplementary registration
correcting its initial application. Kenexa’s insinuation that the supplementary registration
might have been denied had the Register examined the application more closely, see
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Kenexa’s Br. at 37-38, is baseless.
Although we are troubled by the possibility that Gallup’s misrepresentations may
have been intentional, it is not clear that even knowing misrepresentations can void a
copyright registration where the Register has not relied on them. Kenexa concedes that
“[t]he standard for invalidating a copyright registration in this Circuit is the ‘knowing
failure to advise the Copyright Office of facts which might have led to the rejection of a
registration application.’” Kenexa’s Br. at 25 (quoting Masquerade Novelty, 912 F.2d at
667) (our emphasis); see also Eckes v. Card Prices Update, 736 F.2d 859, 861-62 (2d Cir.
1984) (indicating that the registrant must have omitted “facts which might have
occasioned a rejection of the application” (internal quotation marks omitted)). For the
reasons given above, the Register undoubtedly would have issued the certificate whether
or not Gallup had misrepresented the dates of creation and publication. Gallup’s
misrepresentations thus could not have voided its registration even if they were
knowingly made.
III.
After careful consideration of the parties’ submissions, we conclude that Gallup
satisfied the deposit requirement for a registered copyright in the 1998 version of the
survey when it deposited a copy of that version with the Copyright Office. We further
conclude that Gallup’s misrepresentations in its application did not invalidate its
registration. The order of the District Court awarding summary judgment to Kenexa is
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vacated, and this matter is remanded to the District Court for further proceedings.