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Jason M. Venditti (#022073) 

PETRIE & VENDITTI, PLC

20860 N. Tatum Blvd. Suite 300 

Phoenix, Arizona 85050 

Ph: (480) 771-3986 

Fax: (480) 771-7101 

Email: jvenditti@pvlawgroup.com 

Attorneys for Defendants Ugly Pools Arizona, Inc. and Brian Morris 

THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

SELLPOOLSUPPLIESONLINE.COM, LLC, 

an Arizona limited liability company, 

Plaintiff, 

vs. 

UGLY POOLS ARIZONA, INC. an Arizona 

corporation; and BRIAN MORRIS, an 

individual, 

Defendants. 

CASE NO.: 2:15-CV-01856-PHX-PGR 

DEFENDANTS' REPLY IN SUPPORT 

OF THEIR MOTION TO ORDER 

CANCELLATION OR AMENDMENT 

OF PLAINTIFF'S COPYRIGHT 

REGISTRATION 

 

Defendants hereby file this Reply in support of their motion for the Court to order 

Plaintiff to cancel or amend its copyright registration. For the reasons set forth herein, as well 

as in the underlying motion, Defendants request should be granted. 

Plaintiff's Post-July 2014 Revisions in the Deposit Added Copyrightable Material. 

Generally, copyrightable revisions to online works that are published on separate days 

must each be registered individually, with a separate application. “The version of the work 

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that is deposited should be the same version described on the application; thus the title and 

dates on the application should correspond with those on the deposit copy.” See Copyright 

Circular 66, p.2, attached as Exhibit G to Motion to Cancel, (Doc. #53). Registration of a 

revised version covers only the new or revised material added. Id. 

Plaintiff admits the Deposit was created from Plaintiff’s website as it existed on or 

about August 26, 2015. See Plaintiff’s Response, p. 5, n.4 (Doc. #56). Yet, the date on 

Plaintiff’s registration does not correspond, and instead lists July 3, 2014 as the publication 

date. See Motion to Cancel, Exhibit B (Doc. #53). The question is whether Plaintiff’s 

Deposit includes copyrightable material added after July 3, 2014, thereby making the Deposit 

a revised version of the July 3, 2014 work.1

Plaintiff’s Response avoids discussing the material that was actually added, namely: (1) 

the Nemo product line added in October 2014, and (2) the Contact Us Webpage that was 

added and last updated in January 2015. See Motion to Cancel, pp. 6-7 (Doc. #53). Instead, 

Plaintiff argues any update was “trivial.” See Response, pp. 9-10 (Doc. #56). 

The Nemo product line added in October 2014 includes new photographs that exist in 

the Deposit but were not in the July 3, 2014 version of the website. See Motion to Cancel, 

page 7, and Exhibits M-1, -2, and -3; N-1, -2, and -3; and O; see also Exhibits 1, 2, and 3, 

attached hereto. The photographs are copyrightable material. As even Plaintiff acknowledges, 

 

1 Plaintiff admits the Copyright Office raised this as a “potential issue.” See Response, page 

5. 

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photos have been copyrightable subject matter for over one hundred years.2 See Response, 

p.8 (Doc. #56). 

Plaintiff's Deposit Was Its Entire Website. 

Plaintiff argues that its limitation of the registration to text and photographs means that 

it was not trying to register the entire website, and was only submitting the text and 

photographs through the website “medium.” See Response, p.6. This argument is false for 

several reasons. First, the copyright registration is for an entire website – its title is “SPSO 

website www.poolandspapartsnow.com.” See Motion to Cancel, Exhibit B (Doc. #53). 

Second, the Hagen Affidavit submitted to the Copyright Office literally defines the Platform as 

a website, see Response, p.5, line 8 (Doc. #56), and declares (falsely) that “[t]he sample of the 

Platform provided to the United States Copyright Office with SPSO’s Copyright application is 

the same as the website first appeared when published on July 3, 2014.“ Id., lines 16-18. 

Also, Plaintiff is suing Defendants for copying Plaintiff’s website, not just some pictures and 

text. See Amended Complaint (Doc. #39), paragraphs 10, 16, 18, and 21-22. Plaintiff alleges 

that Defendants copied Plaintiff’s Platform, which is the website 

www.poolandspapartsnow.com. See Plaintiff’s Response to Defendants’ Motion for Summary 

Judgment, pages 1-2 (Doc. # 49). Plaintiff is claiming damages based on the price of a license 

 

2 If the Plaintiff’s initial photographs are an original copyrightable work, then it logically 

follows that the additional photographs added to the Deposit were not “minor editorial 

changes,” but were copyrightable changes to the original work. Indeed, if these new 

photographs added by Plaintiff were mere “minor editorial changes” which lack the originality 

to meet the definition of a copyrightable work, as Plaintiff tries to argue, then none of 

Plaintiff’s photographs would be copyrightable works. See Plaintiff’s Response, p. 10. 

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for the Platform website, not just pictures and text. See Plaintiff’s Reply in support of its 

Motion for Summary Judgment, page 7, lines 16-19 (Doc. #51). 

Finally, even assuming that Plaintiff needed to consider updates only for pictures and 

text when submitting an entire website in a deposit – Plaintiff cannot claim a publication date 

of July 3, 2014 because copyrightable pictures were added to the deposit in October 2014. 

The original collection of pictures may have had a first publication date of July 2014, but the 

collection of pictures as revised in the Deposit had a first publication date of October 15, 2014 

or later. Only the newest pictures in the Deposit could be claimed. 

Plaintiff is correct that Plaintiff could have used another medium and just submitted 

individual photos to the copyright office for registration. See Response, page 6 (Doc. #56). 

However, Plaintiff chose not to do so, presumably because damages for its unregistered 

product photos would have been negligible or nonexistent. Instead, Plaintiff registered an 

entire website – its “Platform” – in order to be able to claim the damages that came along with 

infringing Plaintiff’s entire website, e.g., its price for a website license. It just turns out that 

most of Plaintiff’s website was not created by Plaintiff, and Plaintiff did not submit a Deposit 

of the Platform as it existed on July 3, 2014. 

Plaintiff’s Alleged Publication Date in Its Complaint Is Irrelevant. 

Plaintiff argues that it never tried to defraud the Copyright Office because it alleged in 

its Complaint and Amended Complaint, as well as its deposition testimony, that the Platform 

was first published in July 2014. See Response, pages 3-4 (Doc. #56). This is not the same 

issue as Plaintiff’s fraud upon the Copyright Office. The issue with the Copyright Office is 

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the publication date of the Deposit, i.e., when the Deposit last had a copyrightable update. 

Plaintiff originally told the Copyright Office that the Platform in the Deposit had a publication 

date in August 2015. See Motion to Cancel, Exhibit A (Doc. #53). Plaintiff had lengthy backand-forth correspondence with the Copyright Office and plenty of opportunity to change the 

Deposit’s publication date. It was only when Defendants filed a Motion for Summary 

Judgment that Plaintiff finally decided to submit a false Affidavit to the Copyright Office and 

state that the Deposit was “the same as the website first appeared when published on July 3, 

2014.” 

Defendants' Motion Disposes of, or Weakens, Plaintiff's Copyright Claim. 

Plaintiff argues that Defendants’ Motion is moot because Plaintiff may proceed with its 

copyright claim even in the absence of a registration. Plaintiff is incorrect for many reasons. 

First, as a generally applicable rule, a canceled registration means that Plaintiff loses the 

presumption of copyright validity and ownership (and Plaintiff would have an interesting time 

explaining to a jury why Plaintiff should be allowed to enforce a copyright that was canceled 

as a result of Plaintiff’s fraud). 

Second, the absence of a registration means that Plaintiff only has its application, which 

lists a publication date of August 2015. Plaintiff has never disagreed with the legal premise of 

Defendants’ Motion for Summary Judgment, namely, that a work first published in 2015 

cannot be the basis for a copying that occurred in 2014. Cancellation of the registration leads 

to Plaintiff only having an application with a toothless first publication date, and therefore 

Defendants prevail on Plaintiff’s copyright claim. 

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Third, Defendants’ Motion explicitly requests, for either its cancellation or amendment 

remedy, that the Court recognize that the first publication date for Plaintiff’s registration is 

October 2014 or later, the date that Plaintiff added the non-infringed Nemo products to the 

Platform. Again, Defendants would prevail for the same, undisputed rationale in Defendants’ 

Motion for Summary Judgment – Defendants cannot infringe in September 2014 a work that 

was completed and first published in October 2014 or later. Plaintiff can only register the 

most recent copyrightable update – the Nemo products – and it is undisputed that Defendants 

never copied the pictures or text for these products because they are alleged to have 

downloaded the contents for their duplicate site in September 2014. 

Finally, the Copyright statutes forbid a plaintiff from prevailing when the plaintiff has 

knowingly given the Copyright Office materially inaccurate information during application 

and the information appears in the registration. 17 U.S.C. § 411(b)(1). The Copyright Office 

has the task of advising the Court whether the inaccurate information is material, i.e., whether 

the inaccuracy of the information, if known, would have caused the Copyright Office to refuse 

registration. 17 U.S.C. § 411(b)(2). 

Plaintiff’s knowledge of the inaccurate material in the Deposit is uncontested - Plaintiff 

and Plaintiff’s counsel have submitted declarations but neither include a statement that they 

accidentally failed to mention to the Copyright Office the Nemo products, Contact Us 

webpage, or other post-July 2014 updates included in the Deposit. And, the Copyright Office 

will undoubtedly find that these updates would have caused the Copyright Office to refuse 

registration of Plaintiff’s version of the work that was published in July 2014. In the event 

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that the Court finds in resolving this motion that Plaintiff knowingly submitted inaccurate 

information to the Copyright Office during the application process, see § 411(b)(1), and for 

some reason does not grant Defendants' Motion for Summary Judgment, Defendants hereby 

request (if the Court does not act sua sponte) that the court request the Register of Copyrights 

to advise the Court whether the inaccurate information, if known, would have caused the 

Register of Copyrights to refuse registration. 

Plaintiff’s Argument Was Rejected by the Copyright Office. 

Plaintiff argues, as it did to the Copyright Office, that it had the right to deposit an 

updated version of the Platform and register the Platform’s older content because otherwise a 

copyright owner would never be able to register original website content after making website 

updates. See Response, p.11, lines 13-18. Plaintiff is correct that it made that argument to the 

Copyright Office in its request for “special dispensation”– but the argument fell on deaf ears 

and its request was rejected. Thus, Plaintiff was not able to secure a July 3, 2014 publication 

date by its legal argument. Instead, Plaintiff obtained what it wanted only after it gave up 

arguing and submitted a false declaration about the contents of its Deposit. 

Conclusion. 

The Copyright Office’s position, through its literature and this Registration’s 

examiners, is clear and consistent – a registration of a revised website may only claim the most 

recent copyrightable material in the deposit. Plaintiff lied to the Copyright Office about the 

date of the most recent copyrightable material in its Deposit. Plaintiff’s registration should be 

cancelled or amended. 

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RESPECTFULLY SUBMITTED this 17th day of January, 2017. 

PETRIE & VENDITTI, PLC 

By: 

/s/ Jason M. Venditti 

 Jason M. Venditti 

 20860 N. Tatum Blvd., Suite 300 

Phoenix, Arizona 85050 

Attorneys for Defendants 

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CERTIFICATE OF SERVICE 

 I hereby certify that on January 17, 2017, I electronically transmitted the attached 

document to the Clerk’s Office using the ECF System for filing and transmittal of Notice of 

Electronic Filing to the following ECF registrants: 

 A courtesy copy of the Notice of Electronic Filing was also mailed on this same date to 

the following address: 

Carlos Leyva 

Digital Business Law Group PA 

1001 Starkey Rd., Ste. 18 

Largo FL 51017 

cleyva@digitialbusinesslawgroup.com 

Attorney for Plaintiff 

 

Linda S. McAleer 

Digital Business Law Group 

530 B St., Ste. 1550 

San Diego CA 92101 

lsmnotices@gmail.com 

Attorney for Plaintiff 

 /s/ Jason M. Venditti 

 By: __________________________________ 

 Jason M. Venditti, Esq.

Case 2:15-cv-01856-JZB Document 58 Filed 01/17/17 Page 9 of 9