Virginia Lawyers Weekly

An engineering services firm that failed to register a copyright for its building site plans for a King William County subdivision cannot seek an injunction under federal copyright law against defendant bank that foreclosed on the subdivision and allegedly is using plaintiff firm’s plans to have another contractor develop the site, and the Richmond U.S. District Court dismisses the copyright claim in this suit defendant removed to federal court.

Plaintiff’s complaint fails to allege that the copyright at issue in this case was registered with the Patent & Trademark Office. Nor has plaintiff produced any evidence suggesting it possesses a registered copyright for the site plans. Plaintiff argues instead that registration is not required because it seeks only an injunction under § 502(a) of the Copyright Act.

Section 502 does not provide an independent cause of action for copyright infringement. Rather, § 502 only makes the remedy of injunctive relief available to a plaintiff who has already shown copyright infringement in violation of § 501. To maintain an action for infringement under § 501 and to obtain an injunction under § 502, plaintiff must first register its copyright as required by § 411(a). Because plaintiff has neither alleged nor shown that it registered the copyright at issue here, and in fact argues that registration is not required to sue for injunctive relief, the court does not have jurisdiction to hear plaintiff’s claim for copyright infringement in count I and therefore cannot enter an injunction under § 502(a).

In support of its argument that the court may enjoin copyright infringement under § 502(a) in the absence of a registration under § 411(a), plaintiff relies on a single unpublished 4th Circuit case, Universal Furniture Int’l Inc. v. Collezione Europa USA Inc. 196 Fed. Appx.166 (4th Cir. 2006). Unlike the present case, however, it was undisputed in that case that the copyright at issue had already been registered. Consideration of a preliminary injunction under § 502 thus was proper in that case only because it was clear from the record that plaintiff had already satisfied the registration requirement of § 411(a) and could therefore maintain an action for infringement under § 501.

The court dismisses plaintiff’s copyright claim for lack of subject matter jurisdiction, and declines to exercise supplemental jurisdiction over plaintiff’s state law claim for conversion.

Balzer & Associates Inc. v. Union Bank & Trust Co. (Hudson, J.) No. 3:09cv273, June 15, 2009; USDC at Richmond, Va. VLW 009-3-337, 9 pp.

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