RAKOFF, District Judge.
By Order dated June 23, 2004 ("June 23 Order"), the Court, inter alia, granted the defendants' motion to dismiss those federal copyright claims in the Complaint that alleged infringement of visual images as to which plaintiff's applications for copyright registration were pending but not yet approved or disapproved by the Copyright Office. This Memorandum briefly elaborates the reasons for that portion of the Court's June 23 Order.
Section 410 of the Copyright Act gives the Copyright Office the power to examine a depositor's application for copyright registration and then either to register the copyright (and issue a certificate to confirm same) or to refuse to do so. Specifically, section 410 provides that:
17 U.S.C. § 410.
The next section of the Copyright Act, section 411(a), sets forth the jurisdictional pre-requisites to a federal action for copyright infringement as follows:
17 U.S.C. § 411(a) (emphasis supplied).
The combination of sections 410 and 411 thus make plain that the federal district courts do not have jurisdiction over a claim for federal copyright infringement until the Copyright Office has either approved or refused the pending application for registration. Numerous courts in this District (as elsewhere) have so held. See, e.g., City Merchandise, Inc. v. Kings Overseas
Plaintiff's principal response, see transcript, 6/22/04, is to argue that the aforementioned construction of sections 410 and 411 is contradicted, or at least rendered problematic, by the language of a still earlier section of the Copyright Act, section 408(a), which provides that "the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section, together with the application and fee specified by [other sections.]" 17 U.S.C. § 408. Contrary to plaintiff's argument, however, nothing in this language suggests that registration is obtained simply by filing the deposit, application, and fee, for if that were the case the verb would be "shall obtain." Instead, the actual verb — "may obtain" — shows that the deposit, application and fee are simply preliminary to another step, i.e., the approval or refusal described in section 410.
Accordingly, this Court lacks subject matter jurisdiction over any images embraced in plaintiff's Complaint that, even though the subject of pending applications for registration, have not been either approved or refused for registration by the Copyright Office.