those so familiar as to be not copyrightable. See Mid America Title Co. v. Kirk, 867 F. Supp. 673, 681 (N.D. Ill. 1994). Accordingly, summary judgment is inappropriate.
B. Registration Validity
Plaintiff does not have a certificate of registration specifically for the Ring. Rather, plaintiff's registration is for the "Skalet Ring Line" which is listed as the title of the work on the certificate. The nature of the work is listed as jewelry design. Attached to the certificate of registration presented to the court are four pages of photographs of rings that comprise the Skalet Gold Ring Line, each page containing approximately thirty rings, for a total of approximately 120 rings for which plaintiff claims a copyright. 17 U.S.C. § 408(c) provides for the single registration for a group of related works. Relying on Tabra, Inc. v. Treasures de Paradise Designs, Inc., 1990 U.S. Dist. LEXIS 11384, 15 U.S.P.Q.2D (BNA) 1234 (N.D. Cal. 1990), defendant argues that plaintiff's registration is invalid because it fails to indicate in any way how the rings of the Skalet Gold line are related other than by being shown in a group of photographs attached to the registration certificate. In Tabra, the plaintiff had a joint copyright over "primitive look" jewelry. The plaintiff brought a motion for preliminary injunction against the defendant who allegedly was selling infringing merchandise. The court reviewed the copyright registrations and the photocopied jewelry covered by each registration and noted that each registration covered several designs, some as many as thirty to fifty, and one over ninety. The jewelry pieces covered by each of the registrations were a conglomeration of designs which did not necessarily bear any resemblance to each other. According to the court, the only apparent relationship is that many pieces were earrings and had a primitive look. The court then reviewed the registration certificates themselves and concluded that they provided no aid in distinguishing or grouping the designs. The forms completed by the plaintiff merely referred to designs for a particular year. They failed to identify any characteristics of the designs that made them related, as contemplated by the statute. "In fact, the registrations do not identify any characteristics, distinctive marks or features of the jewelry they purport to copyright. They refer only to 'jewelry.'" Id. at 1237.
Based on its review of the registration certificates and identifying materials, the Tabra court concluded that the manner in which the plaintiff had copyrighted the numerous items gave weight to the defendant's argument that the plaintiff was seeking to monopolize the idea of primitive look jewelry. It therefore concluded that the defendant had demonstrated the potential in-validity of the plaintiff's copyright, and refused to grant a preliminary injunction.
In the instant case, as in Tabra, plaintiff's identifying materials submitted in support of its registration are a conglomeration of ring designs which bear no resemblance to each other aside from the fact that each apparently is made of gold. Some have stones, some do not. Some have designs, some do not. As in Tabra, the registrations do not identify any characteristic, distinctive marks or features of the jewelry. It refers simply to jewelry design. Unlike Tabra, however, the instant case is not before the court on plaintiff's motion for a preliminary injunction. While defendant has presented some evidence of the invalidity of plaintiff's copyright, that evidence is insufficient for the court to rule as a matter of law that the copyright is invalid, particularly in light of plaintiff's argument that the relatedness requirement is satisfied if the works are included in a "single unit of publication." See 37 C.F.R. § 202.3(b)(3)(i)(A). Plaintiff argues that because the rings are offered for sale together as a line and appear together in their marketing materials, the relatedness requirement is satisfied. Whether the rings are sold separately or together as a line and whether that is sufficient is disputed. Because this material issue of fact remains, defendant's motion for summary judgment on this issue is denied.
Defendant next argues that plaintiff's registration fails to sufficiently identify the copyrightable content. In essence, defendant argues that plaintiff failed to deposit the identifying materials required by 37 C.F.R. 202.20(b)(2)(i). Defendant argues that the photographs attached to the registration give only the top view of each ring, thereby limiting the copyright protection to what is indicated in the picture. Plaintiff argues that the section cited by defendant is inapplicable by its own terms. 37 C.F.R. 202.20(c)(2)(xi)(A)(2) provides that the registration requirements for jewelry are set forth in Section 202.21, which calls for identifying materials consisting of photographs, prints or similar two dimensional reproductions or renderings of the work. In the instant case, plaintiff has provided the Registrar of Copyrights photographs of the Ring. Whether the photograph sufficiently identifies the specific characteristics of the Ring that make it copyrightable is a question of fact that cannot be decided on summary judgment. Although to this court's untrained eye, the photograph of the Ring incorporated into plaintiff's registration does not appear to illustrate plaintiff's claim to "an eight mm. tailored gold band, with a U shaped bezel head [which] was designed in a manner such that the stone, a 9 x 7 mm. baguette, does not touch the band and appears to float," plaintiff may be able to introduce evidence that a person trained in the jewelry industry would be able to draw that conclusion from the photo. Thus, while defendant has presented sufficient evidence to question the validity of the registration, it is not enough for this court to rule as a matter of law that the registration is invalid.
Finally, defendant argues that the registration is invalid because plaintiff failed to include a date of first publication, thereby indicating that the registration was for an unpublished work. In fact, the rings had been published (offered for sale) over a year before that application for copyright. Defendant cites Determined Productions, Inc. v. Koster, 1993 U.S. Dist. LEXIS 4586, 1993 WL 120463 (N.D. Cal. 1993), for its statement that "wrongly identifying a number of published individual works as an unpublished collection is a fundamental registration error, which deprived the court of jurisdiction over the copyright claim." While it is true that Koster so held, other courts have clearly held that immaterial, inadvertent errors in an application for copyright registration do not jeopardize the validity of the registration. Data Gen. v. Grumman Systems Support, 36 F.3d 1147, 1161 (1st Cir. 1994) (and cases cited therein). In general, an error is immaterial if its discovery is not likely to have led the copyright office to refuse the application. Id. In the instant case, there is no evidence to suggest that the copyright office would have refused plaintiff's application had it provided the date of first publication. Moreover, as defendant points out, Koster was based, at least in part, on a statement in the United States Copyright Office, Compendium of Copyright Office Practices, Section 1507.07(a): "where a published work was incorrectly registered as unpublished, a supplementary registration is generally inappropriate, since the deposit requirements will not ordinarily have been met." In the instant case, the deposit requirements for jewelry for either published or unpublished works are the same. Therefore, there is no real necessity for requiring a new basic registration. Accordingly, the court concludes that defendant has failed to establish that plaintiff's inadvertent error
is material as a matter of law. Accordingly, defendant's motion for summary judgment is denied.
For the reasons set forth above, defendant's motion to dismiss or in the alternative for summary judgment is denied.
ENTER: May 15, 1997
Robert W. Gettleman
United States District Judge