NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-4268

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DALE D. KUNKEL,

Appellant

v.

EUGENE S. JASIN; SAUCON VALLEY CUSTOM HOMES, INC.

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On Appeal from the United States District Court

for the Eastern District of Eastern District of Pennsylvania

(D.C. Civil Action No. 09-cv-00371)

District Judge: Honorable J. William Ditter, Jr.

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Submitted Pursuant to Third Circuit LAR 34.1(a)

March 24, 2011

Before: SLOVITER, FISHER and WEIS, Circuit Judges

(Opinion filed: March 29, 2011)

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OPINION

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PER CURIAM.

Dale D. Kunkel appeals an order of the United States District Court for the 

Eastern District of Pennsylvania granting summary judgment in favor of the defendants 

in this copyright infringement action. For the following reasons, we will affirm.
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Because the parties are familiar with the background, we will present it here only 

in summary. Kunkel claims that he created certain architectural designs in the 1990s and 

that the defendants, Saucon Valley Custom Homes, Inc., and its president, Eugene S. 

Jasin (collectively “SVCH”), used those designs without permission in the construction 

of homes. In November 2001, Kunkel filed for bankruptcy. See In re: Kunkel, No. 01-

25282 (Bankr. E.D. Pa.). He did not list the architectural designs on his Schedule B 

personal property form. The bankruptcy proceeding was closed in 2006. Meanwhile, 

Kunkel registered copyrights in the designs on February 13, 2003, May 18, 2007, 

September 11, 2007, and October 16, 2007. 

In 2007, Kunkel filed an action against SVCH, attempting to assert claims 

based on the registered copyrights. The District Court granted SVCH‟s motion for 

summary judgment, holding that Kunkel‟s failure to include the designs on his Schedule 

B meant that they remained part of the bankruptcy estate, that the bankruptcy trustee was 

the real party in interest, and that Kunkel therefore lacked standing to recover for the 

alleged infringement of his copyrights. See Kunkel v. Jasin, No. 07-1241, 2007 WL 

2407293 (E.D. Pa. Aug. 21, 2007). Rather than appeal, Kunkel moved to reopen his 

bankruptcy case. The Bankruptcy Court granted the motion and permitted Kunkel to 

amend his Schedule B to include the designs. Ultimately, on January 24, 2008, the 

Bankruptcy Court ordered that the designs be abandoned to Kunkel.

Kunkel filed the present copyright infringement action in January 2009. 
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SVCH filed a motion for summary judgment, alleging that Kunkel‟s registrations of the 

architectural designs were invalid because, at the time of those registrations, the designs 

were the property of the bankruptcy estate. The District Court agreed and granted the 

motion for summary judgment. Kunkel filed a motion for reconsideration, which the 

District Court denied. Kunkel filed a timely notice of appeal.

We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review 

over an order granting a motion for summary judgment. See Gallo v. City of 

Philadelphia, 161 F.3d 217, 221 (3d Cir. 1998). A grant of summary judgment will be 

affirmed if our review reveals that “there is no genuine issue as to any material fact and 

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)

(amended Dec. 1, 2010). We review the facts in the light most favorable to the party 

against whom summary judgment was entered. See Coolspring Stone Supply, Inc. v. 

American States Life Ins. Co., 10 F.3d 144, 146 (3d Cir. 1993).

The Copyright Act provides that copyright ownership “vests initially in the 

author or authors of the work.” 17 U.S.C. § 201(a). Copyright infringement is 

established if the plaintiff proves that he owned the copyrighted work and that the 

copyrighted work was copied by the defendant. See Masquerade Novelty, Inc. v. Unique 

Industries, Inc., 912 F.2d 663, 667 (3d Cir. 1990). Pursuant to the Copyright Act, “no 

action for infringement of the copyright in any United States work shall be instituted until 

preregistration or registration of the copyright claim has been made in accordance with 
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this title.” 17 U.S.C. § 411(a). In addition, only “the owner of copyright or of any 

exclusive right in the work may obtain registration of the copyright claim . . . .”

1

17 

U.S.C. § 408(a); In re World Auxiliary Power Co., 303 F.3d 1120, 1126 (9th Cir. 2002); 

Arthur Rutenberg Homes, Inc. v. Drew Homes, Inc., 29 F.3d 1529, 1532 (11th Cir. 

1994). We have held that an otherwise valid registration is not jeopardized by 

inadvertent, immaterial errors in an application. See Raquel v. Educ. Mgmt. Corp., 196 

F.3d 171, 177 (3d Cir. 1999), cert. granted and judgment vacated on other grounds, 531 

U.S. 952 (2000). A misstatement is material if it “might have influenced the Copyright 

Office‟s decision to issue the registration.” Raquel, 196 F.3d at 177. Indeed, the 

“knowing failure to advise the Copyright Office of facts which might have occasioned a 

rejection of the application constitute[s] reason for holding the registration invalid and 

thus incapable of supporting an infringement action.” Eckes v. Card Prices Update, 736 

F.2d 859, 861-62 (2d Cir. 1984) (quoting Russ Berrie & Co. v. Jerry Elsner Co., 482 F.

Supp. 980, 988 (S.D.N.Y.1980)). 

On the copyright registration forms, Kunkel indicated that he owned the 

architectural designs. Kunkel submitted each of the registration forms between the filing 

of his bankruptcy petition in November 2001 and the Bankruptcy Court‟s January 2008 

order directing that the designs be abandoned to Kunkel. During that period, the designs 

 

1 Under the applicable regulation, “[a]n application for copyright registration may be 

submitted by any author or other copyright claimant of a work, or the owner of any 

exclusive right in a work, or the duly authorized agent of any such author, other claimant, 

or owner.” 37 C.F.R. § 202.3(c)(1).
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were the property of the bankruptcy estate. This is because, “[a]s a general matter, upon 

the filing of a petition for bankruptcy, „all legal or equitable interests of the debtor in 

property‟ become the property of the bankruptcy estate and will be distributed to the 

debtor‟s creditors.” Rousey v. Jacoway, 544 U.S. 320, 325 (2005) (quoting 11 U.S.C. 

§ 541(a)(1). The bankruptcy estate includes assets that a debtor fails to schedule. See

Hutchins v. IRS, 67 F.3d 40, 43 (3d Cir. 1995). Furthermore, the bankruptcy estate can 

encompass the debtor‟s intellectual property, such as interests in copyrights. See United 

States v. Inslaw, Inc., 932 F.2d 1467, 1471 (D.C. Cir. 1991). 

Because the bankruptcy estate, not Kunkel, owned the designs at the time 

that Kunkel registered them with the Copyright Office, those registrations are invalid. 

Cf. Raquel, 196 F.3d at 177 (“Had the Register of Copyrights known that Raquel did not 

author the audiovisual work identified in its registration, it is likely that this rather 

fundamental misstatement would have occasioned the rejection of Raquel‟s 

application.”). Without valid registrations, Kunkel cannot maintain a copyright 

infringement action against SVCH. Apparently conceding that he did not own the 

copyrights, Kunkel asserts that he “was legally entitled to register the copyrights as the 

author[,] which had no effect on the ownership rights of the bankruptcy estate.” In 

support of this argument, Kunkel notes that he checked a box on the registration form 

indicating that he was the “author” of the work, rather than the box designated for use by 

the “owner of exclusive right[s].” For purposes of this case, however, the distinction 
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between an “author” and an “owner” is not relevant. What is critical is that Kunkel did 

not have the right to register the copyrights at the time the registrations were submitted to 

the Copyright Office. 

Kunkel also relies on the theory that, upon abandonment of an asset that 

was part of a bankruptcy estate, the property revests in the debtor, who is treated as 

having possessed the property continuously. See In re Gravure Paper & Board Corp., 

234 F.2d 928, 930-31 (3d Cir. 1956). Thus, according to Kunkel, because his “interest in 

the copyrights and architectural plans revert[ed] back to [him] as if the bankruptcy had 

never been filed and [he] is to be treated as if they had remained with him at all times,” 

the “copyright registrations are and have been in full force and effect since the time they 

were obtained . . . .” We agree with the District Court‟s refusal to apply the doctrine of 

“relation back” here, however. Kunkel failed to include the copyrights on the appropriate 

bankruptcy schedule, certified to the Copyright Office that he owned the copyrights when 

in fact they belonged to the bankruptcy estate, and belatedly regained possession of the 

copyrights only by seeking reopening of his bankruptcy case. See Wallace v. Lawrence 

Warehouse Co., 338 F.2d 392, 394 n.1 (9th Cir. 1964) (“[Relation back] is a fiction, and 

a fiction is but a convenient device, invented by courts to aid them in achieving a just 

result. It is not a categorical imperative, to be blindly followed to a result that is 

unjust.”). Under these circumstances, we believe that the District Court properly granted 

summary judgment in favor of SVCH.
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For the foregoing reasons, we will affirm the judgment of the District Court.