Algonquin Music v. Mills Music, 93 F. Supp. 268 (S.D.N.Y. 1950)

Arthur L. Fishbein, New York City, for plaintiff.

Samuel Jesse Buzzell, New York City, for defendants.

NOONAN, District Judge.

This is a motion by the defendants for an order dismissing the complaint in that it appears thereon that plaintiff has not complied with the provisions of 17 U.S.C.A. § 13. This section provides in part:

"No action or proceeding shall be maintained for infringement of copyright in any work until the provisions of this title with respect to the deposit of copies and registration of such work shall have been complied with."

Plaintiff alleges a proper deposit of two copies of the work but admits that a certificate of registration has not been obtained.

The procural of the latter is a prerequisite for the maintenance of this action. Lumiere v. Pathe Exchange, Inc., 2 Cir., 275 F. 428.

Although plaintiff claims it has applied for such certificate, it does not appear that plaintiff could replead to correct the defect because as yet proper registration is lacking.

Therefore, the motion is granted and the complaint is dismissed without prejudice. Cf. Rosedale v. News Syndicate Co., D.C., 39 F. Supp. 357.