Lewis v. Rio Grande Sun , 345 F. App'x 357 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 10, 2009
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
NANCY LEWIS,
Plaintiff-Appellant,
v. No. 09-2122
(D.C. No. 6:09-CV-00016-MCA-ACT)
RIO GRANDE SUN, (D. N.M.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HENRY, Chief Judge, BRORBY, Senior Circuit Judge, and HARTZ,
Circuit Judge.
Plaintiff Nancy Lewis’s pro se complaint for copyright infringement
charged that defendant, New Mexico newspaper Rio Grande Sun, ran a front page
story she had written without crediting her authorship and published another
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
article with an editorial change she had not approved. 1 The district court referred
the case to a magistrate judge who recommended that it be dismissed for lack of
jurisdiction because the complaint failed to allege that plaintiff had registered her
copyright, a precondition to an infringement action. See 17 U.S.C. § 411(a);
see also La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195,
1200 (10th Cir. 2005). Because plaintiff had failed to allege facts to demonstrate
federal jurisdiction, the magistrate judge recommended that plaintiff’s application
for permission to proceed without prepayment of costs and fees (IFP) be denied,
and that her complaint be dismissed.
Plaintiff objected to the magistrate judge’s recommendation, arguing that
she could bring her action under the Lanham Act which does not require
registration as a judicial prerequisite. The district court disagreed, citing Dastar
v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), which held that the
Lanham Act does not prohibit the unattributed copying of uncopyrighted work.
Id. at 36. The district court also concluded that the Lanham Act was inapplicable
because plaintiff’s complaint did not allege any consequences to purchasers of
defendant’s newspaper, as required under the Act. Id. at 32-33. Adopting the
1
The district court stated that the complaint alleged “unauthorized changes
so extensive to her article that these changes rose to a copyright infringement.”
R. at 32. We read the complaint to state two claims: that on June 7, 2007,
defendant published an article plaintiff wrote but failed to add her byline; id. at 3;
and that on May 17, 2007, defendant altered one of plaintiff’s stories by changing
the word “women” to the word “inmates,” id. at 6.
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magistrate judge’s recommendation that plaintiff’s motion to proceed IFP be
denied, the district court dismissed the complaint without prejudice. Plaintiff
appeals from that order.
Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm. We review
the district court’s dismissal for lack of subject matter jurisdiction de novo and its
findings of jurisdictional fact for clear error. Butler v. Kempthorne, 532 F.3d
1108, 1110 (10th Cir. 2008), cert. denied, 129 S. Ct. 952 (2009).
Federal courts have jurisdiction over copyright infringement matters only
if the putative plaintiff has registered the copyright in accordance with the
Copyright Act. See 17 U.S.C. § 411(a); see also La Resolana Architects,
416 F.3d at 1200 (noting that “[t]he most important step necessary before
instituting an infringement action is registering one’s copyright”). The district
court properly dismissed this action because plaintiff’s complaint did not allege
the required registration. Even in her objection to the magistrate judge’s
recommendation, plaintiff did not state that she had registered a copyright of her
materials. And, as the district court correctly held, this claim cannot proceed
under the Lanham Act.
Plaintiff has also filed a motion in this court to proceed on appeal without
prepayment of costs or fees. Allowing a litigant to proceed on appeal without
prepaying costs and fees is only appropriate where the applicant is unable to pay
the required filing fees and demonstrates “the existence of a reasoned,
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nonfrivolous argument on the law and facts in support of the issues raised on
appeal.” Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008). We accept the
district court’s finding that plaintiff has shown a financial inability to pay the fees.
R. at 45. However, because plaintiff has shown no basis for federal jurisdiction,
she cannot make a reasoned, nonfrivolous argument in support of her appeal. This
action therefore cannot be the basis for a grant of IFP status to plaintiff.
Plaintiff’s motion to proceed on appeal without prepayment of costs and
fees is DENIED, and this appeal is DISMISSED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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