Page:Alart Associates v. Aptaker (279 F.Supp. 268).pdf/2

 March, Gillette & Wyatt, New York City, for plaintiff.

Julius E. Foster, New York City, for defendants.

MANSFIELD, District Judge.

In this action for copyright infringement, defendants move for summary judgment on the ground that the Certificate of Copyright Registration No. Gp52281 for the work in question, a pierced earring tree in the form of a sculpture of a flower, stem and leaves, was issued to “Alart, Inc.”, a non-existent corporation, rather than to “Alart Associates, Inc.”, a New York corporation named as plaintiff in the amended complaint. Omission of the word “Associates” from plaintiff’s name on the registration appears to have been an inadvertent error, since it bore plaintiff’s true address and no motive existed for not using plaintiff’s full name in the registration, a correction of which was filed with the Copyright Office on March 9, 1967 pursuant to § 201.5(a) of the Regulations of the Copyright Office, 37 C.F.R. § 201.5(a) (1966).

Prior to amendment of its complaint, when plaintiff was named as “Alart, Inc.”, defendants moved for summary judgment on the ground that no such corporation existed, whereupon plaintiff sought leave to amend its complaint to correct the inadvertent clerical omission of the word “Associates” from its name. On March 20, 1967, defendants’ motion for summary judgment was denied and plaintiff’s motion for leave to amend was granted by Judge Metzner, who, on reargument, adhered to these rulings by order of April 21, 1967.

On this motion, defendants again seek to take advantage of the mistake in plaintiff’s name, arguing from the variance between “Alart, Inc.” in the certificate of registration and “Alart Associates, Inc.” in the amended complaint that the Court lacks jurisdiction over the subject matter, that the amended complaint is a sham pleading, that certain answers to defendants’ interrogatories are false, that the certificate of registration is void, that plaintiff lacks standing to maintain a copyright action, that the complaint fails to state a claim upon which relief may be granted, and that plaintiff has violated N.Y.Gen.Bus.Law § 130 (McKinney Consol.Laws, c. 25, 1967), formerly Penal Law § 440.

The merits of this motion based on the variance between plaintiff’s name in its amended complaint and in its certificate of copyright registration were expressly raised in defendants’ previous motions for summary judgment and for reargument of that motion. For the third time defendants seek to magnify an inadvertent clerical error by plaintiff to the level of a substantial defense warranting dismissal of the action, although defendants do not point to any prejudice