## Facts

- Swatch Group hosted an earnings conference call with selected securities analysts to discuss released financial results.
- At the outset, participants were told the call would be recorded and were prohibited from recording or broadcasting it.
- Swatch Group created an authorized audio recording of the call, consisting of executives’ remarks and responses to analysts’ questions.
- Bloomberg was not invited to the call but recorded it, prepared a transcript, and distributed both to paying subscribers through Bloomberg Professional.
- Swatch Group assigned the U.S. copyright in the authorized sound recording to Swatch Group Management Services Ltd., which brought a copyright infringement action.
- Bloomberg moved to dismiss under Rule 12(b)(6), arguing (1) the call was not copyrightable and infringement was inadequately pleaded, and (2) the claim was barred for failure to plead compliance with 17 U.S.C. § 411(c).

## Issues

1. Whether the complaint plausibly alleged a valid, copyrightable work in the recorded earnings call and actionable copying/distribution by Bloomberg.
2. Whether the infringement claim was barred at the pleading stage for failure to allege compliance with 17 U.S.C. § 411(c)’s pre-transmission notice provision for works fixed simultaneously with live transmission.

## Decision

- The court denied Bloomberg’s motion to dismiss.
- The court held the complaint plausibly alleged ownership of a valid copyright in a protectable sound recording and plausible infringement through Bloomberg’s unauthorized recording and dissemination.
- The court held § 411(c) did not bar the action in these circumstances, particularly where the work was registered under § 411(a) and Bloomberg was uninvited and unknown to the copyright owner.

## Legal Principles

- A spoken-word recording may be copyrightable if it is fixed in a tangible medium (including simultaneous fixation with transmission) and contains at least minimal originality in expression.
- Works that communicate facts, including Q&A formats, are not categorically excluded from protection; protectability turns on expressive choices, not the underlying factual content.
- At the Rule 12(b)(6) stage, a copyright claim is sufficiently pleaded by alleging (1) ownership of a valid copyright (including fixation, assignment, and registration) and (2) copying and unauthorized distribution.
- Section 411(a) registration satisfies the statutory prerequisite to sue; § 411(c)’s pre-transmission notice mechanism does not automatically impose an additional pleading bar where advance notice is impracticable and registration is obtained.

## Conclusion

The court allowed the infringement case to proceed past the pleading stage, concluding that the recorded earnings call was plausibly protectable and that the complaint was not defective for failing to allege § 411(c) pre-transmission notice given registration and Bloomberg’s uninvited conduct.


Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 808 F. Supp. 2d 634 (S.D.N.Y. 2011)