August 05, 2019 Feature

Application Is Not Registration: U.S. Supreme Court Resolves Circuit Split on Copyright Act Section 411(a) Registration Requirement

E. Scott Johnson and Julius Bodie

©2019. Published in Landslide, Vol. 11, No. 6, July/August 2019, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

On March 4, 2019, in a unanimous decision, the U.S. Supreme Court held that copyright owners must wait for the U.S. Copyright Office to take action on an application for registration before commencing an infringement suit. The holding in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC1 settled a long-standing circuit split on the interpretation of the registration requirement in § 411(a) of the U.S. Copyright Act.

Copyright protection subsists from the moment an original work of authorship is fixed in a tangible medium of expression. A copyright owner may, but is not required to, register copyright at any time during the very long term of copyright protection. Registering a copyright provides several legal advantages to a copyright owner, but is a prerequisite for filing a copyright infringement lawsuit. That seems simple enough, but courts have long grappled with how the registration requirement can be satisfied by a plaintiff seeking to file a lawsuit for copyright infringement. Two conflicting interpretations of § 411(a)’s registration requirement had emerged: (1) the “application approach,” which allows copyright owners to sue for infringement upon submission to the Copyright Office of an application, deposit materials, and application fee; and (2) the “registration approach,” which allows copyright owners to file suit only after the Copyright Office has acted on an application by issuing a registration certificate or rejecting the application.

In upholding the registration approach, the Court removed uncertainty from a requirement that should be, and now is, quite easy to understand.

Formalities

The United States has a long, checkered history of imposing burdensome requirements, called formalities, on those seeking to secure, maintain, or enforce copyrights. Such formalities have included registration, notice, renewal, deposit, and manufacturing requirements, with draconian penalties for noncompliance, usually forfeiture of copyright. For many years, failure to renew a U.S. copyright registration during the last year of its initial copyright term injected the work into the public domain. The notice requirement was even worse. Works published without a proper copyright notice lost copyright protection immediately upon publication. When the U.S. joined the Berne Convention in 1989, it was required to accord national treatment to works of other Berne member countries, and to eliminate formalities as barriers to protection. Although most formalities have been eliminated or defanged, some persist, and the most notable surviving formality in U.S. copyright law is the registration requirement.

Compared to the harsh formalities that long distinguished U.S. copyright law, registration is a “soft” formality. Registration can be secured at any time during the life of the copyright, and on an expedited basis if required for litigation. The Berne Convention Implementation Act of 1988 amended the U.S. Copyright Act to eliminate formalities, at least as applicable to works from other Berne member countries, for which the U.S. registration requirement is waived. Foreign authors can sue for copyright infringement in U.S. federal courts without a copyright registration.

Even if not required, U.S. copyright registration accords important benefits to a plaintiff, most notably the right to elect statutory damages in lieu of actual damages, especially useful in cases where actual damages or infringers’ profits are negligible or difficult to prove, and the potential recovery of attorney fees and costs. These additional remedies are not available to copyright owners unless the infringed work was registered before infringement commenced. In this limited context, the registration requirement is not a Berne-prohibited formality, because it is not a copyright barrier to protection. Statutory damages and the potential recovery of attorney fees and costs are not essential to enforcing a foreign copyright in the United States, because injunctive relief, damages, and infringers’ profits are remedies that remain available to foreign copyright owners of unregistered works.

Congress created incentives for copyright owners to register their copyrights. For U.S. works, registration is a serious formality, because it is a prerequisite for bringing an infringement suit. Section 411(a) of the Copyright Act provides that “no civil 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 this title.”2 In certain circumstances, copyright owners may file an infringement suit before registration, under a 2005 amendment to the Copyright Act that permits “preregistration” of certain types of works especially vulnerable to predistribution infringement, such as motion pictures and musical compositions.3

A copyright applicant must submit three items to the Copyright Office: (1) a completed application, (2) deposit copies of the work to be registered, and (3) the application fee.4 Once a copyright owner files the application, the Copyright Office examines the work to determine its eligibility for protection, and eventually issues a certificate of registration, or denies the application.

Fourth Estate resolved the question of when a copyright owner has satisfied the registration requirement—whether registration is effective when the copyright owner has submitted the application, deposit materials, and application fee to the Copyright Office; or when the Copyright Office issues (or denies) the registration.

Circuit Split

Prior to the Supreme Court’s decision in Fourth Estate, federal courts were split in their interpretation of the registration requirement in § 411(a). The Fifth and Ninth Circuits applied the “application approach,” which means the registration requirement is satisfied when a copyright owner submits all three items required to register a work. The Tenth and Eleventh Circuits applied the “registration approach,” which means the registration requirement is met only after the Copyright Office has issued a certificate of registration or denied the application. Other circuits, like the First and Second, refused to decide the issue one way or another.5 This section will review the key appellate holdings that led to the Supreme Court’s resolution of this long-standing copyright question.

Application Approach

Both the Fifth and Ninth Circuits applied the application approach, citing ambiguities in the Copyright Act and policy considerations, primarily the administrative delay in processing copyright applications.

In 2010, the Ninth Circuit directly addressed the issue of what it means to register a work in Cosmetic Ideas, Inc. v. IAC/InteractiveCorp.6 The court compared the Fifth Circuit’s application approach with the Tenth and Eleventh Circuits’ registration approach.7 Focusing on the five consecutive sections of the Copyright Act that address registration, §§ 408–412, the court observed that certain sections of the Act, such as § 410(a), contain language suggesting that registration requires affirmative steps to be taken on an application by the Copyright Office, and that registration is not accomplished by application alone.8 Section 410(a) provides in relevant part: “When, after examination, the Register of Copyrights determines that . . . the material deposited constitutes copyrightable subject matter and that the other legal and formal requirements . . . have been met, the Register shall register the claim and issue to the applicant a certificate of registration . . . .”9

The court contrasted that provision with § 408, which provides: “[T]he owner of copyright or of any exclusive right in the work may obtain registration . . . by delivering to the Copyright Office the deposit specified by this section, together with the application and fee specified . . . .”10 The Ninth Circuit concluded that this section should be interpreted to mean that simply by delivering the required documents and application fee to the Copyright Office, registration has been made. In further support of this interpretation, the court noted that the date on a copyright registration certificate is the date of application and not the date of issuance, and that § 410 states that the application date is the effective date of registration.11

Acknowledging the somewhat ambiguous statutory language, the Ninth Circuit turned to relevant policy considerations, noting that irrespective of whether the Copyright Office rejects or approves an application, the applicant can bring an infringement suit.12 The court noted that it made “little sense to dismiss a case (which will likely be refiled in a matter of weeks or months) simply because the Copyright Office has not made a prompt decision that will have no substantive impact on whether or not a litigant can ultimately proceed.”13 The court contrasted the potential harm of the registration approach, which in effect allows an infringer to continue to infringe copyright while the copyright owner waits on the Copyright Office to accept or reject its application.

The Ninth Circuit ultimately concluded that the Copyright Office’s receipt of a completed application, deposit copies, and application fee satisfies the requirements of § 411(a), an approach that “best effectuate[s] the interests of justice and promote[s] judicial economy,” accomplishing the purpose of registration while avoiding unfairness and the waste of judicial resources.14

Registration Approach

The Tenth and Eleventh Circuits employ the registration approach when determining whether registration has been made under § 411(a).

In 2005, the Tenth Circuit in La Resolana Architects, PA v. Clay Realtors Angel Fire analyzed the circuit split, pointing out that courts applying the registration approach rely on the plain language of the Copyright Act, and do not read into the ambiguities of the statute.15 While recognizing that the application approach has “some appeal,” noting that the registration approach delays commencement of an infringement action “until a government official is able to sift through and approve what is surely a large stack of copyright registration applications,” the Tenth Circuit held that the plain meaning of the statute and legislative intent required actual registration and not merely application.16

The court pointed to § 410(a), which provides that the Register of Copyrights “shall register” the claim “after examination,” i.e., that registration can only occur after the Copyright Office’s receipt and examination of an application. Section 410(b) provides that the Register may refuse registration, requiring an affirmative act by the Copyright Office disallowing registration, and § 411(a) provides that an applicant may sue even if registration is ultimately refused. These provisions would be superfluous if the application alone sufficed to register the work. Accordingly, the Tenth and Eleventh Circuits concluded that “registration” requires a series of affirmative steps “by both the applicant and the Copyright Office.”17

Fourth Estate Case

The Fourth Estate Public Benefit Corporation is an independent news organization that licenses its online journalistic works for publication by licensees. Wall-Street.com is a news website and one of Fourth Estate’s former licensees. The licensing agreement between Fourth Estate and Wall-Street required Wall-Street to remove from its website all content licensed to it by Fourth Estate prior to canceling the license agreement. Wall-Street canceled the license agreement, but continued to display Fourth Estate’s articles on its website, prompting Fourth Estate to sue Wall-Street’s owner for copyright infringement.

In its complaint, Fourth Estate stated that it had filed “applications to register [the] articles [licensed to Wall-Street] with the Register of Copyrights.” Because the Copyright Office had not yet acted on the applications, the district court dismissed the complaint on Wall-Street’s motion.18 The Eleventh Circuit affirmed the dismissal under the registration approach, and the Supreme Court granted Fourth Estate’s petition for certiorari to resolve the circuit split on when “registration” occurs for the purposes of § 411(a).

Interested Parties

Several industry groups and interested parties filed amicus briefs. In support of the registration approach, the U.S. Solicitor General, the U.S. Copyright Office, the Public Knowledge and R Street Institute, and the Washington Legal Foundation all submitted amicus briefs. In support of the application approach, the Copyright Alliance, the American Bar Association, the Authors Guild, the International Trademark Association (INTA), and the leading music trade organizations and performing rights societies (the Recording Industry Association of America (RIAA); the American Society of Composers, Authors, and Publishers (ASCAP); Broadcast Music Inc. (BMI); Nashville Songwriters Association International; and Songwriters of North America) each submitted amicus briefs.

The industry groups favoring the application approach made several arguments in line with the Ninth Circuit’s reasoning in Cosmetic Ideas, including congressional intent, textual incongruity of the relevant provisions in the Act, and harm to copyright owners resulting from the time lag in Copyright Office action on applications. The industry groups argued that the text and purpose of the Act favor an approach that allows rights holders to seek efficient and effective judicial relief, which was not intended to be diminished based on administrative delay, and that the text of the Act was intended to account for the “inevitable timelag” between a copyright owner’s fulfillment of registration requirements and the Copyright Office’s issuance of a registration.19

Industry groups argued that the application approach generates better policy outcomes, while the registration approach harms authors and copyright owners.20 The infringement that can occur before a copyright owner can obtain a registration certificate is particularly amplified in entertainment media, such as the music and motion picture industries, where works that have not yet been made publicly available by the copyright owner are already being pirated or infringed on a large scale.21

The RIAA’s amicus brief highlighted the “human and technological constraints of the Copyright Office,” that it takes seven to nine months on average and more than two years in some instances to obtain a determination on an application.22 The RIAA argued that because of this “daunting” administrative delay, songwriters, music artists, publishers, and record companies are unable to enforce their copyrights in a timely manner, particularly in the online environment where digital song files can be rapidly distributed and made available without authorization.23

INTA pointed to the language in the Berne Convention, which, as described above, requires that “[t]he enjoyment and the exercise of [copyright] rights shall not be subject to any formality.”24 INTA argued that in light of the United States accession to Berne in 1988, the congressional intent behind § 411(a) should be construed in a manner that minimizes formalities and obstacles to enforcing copyrights, which favors the application approach.25

The government and industry groups favoring the registration approach tended to focus on what they characterized as a plain reading of the text, and congressional intent. They rejected the policy concerns raised by proponents of the application approach, as irrelevant given the plain meaning of the text in the relevant sections of the Act. These arguments largely mirrored the Tenth and Eleventh Circuits’ analysis. For example, the Solicitor General and the Copyright Office both highlighted the express language of §§ 410 and 411, which state that registration denotes the Copyright Office’s official act recording an accepted copyright claim.26 Both also pointed to the latter sentences in § 411(a), which create an exception to the registration requirement by allowing an infringement suit to proceed “when registration has been refused”27 as further support of the registration approach.

In addressing the policy concerns expressed by proponents of the application approach, the U.S. government argued that those risks strengthen the incentives for copyright owners to register promptly, and also highlighted the various mechanisms Congress had built into the Copyright Act, including the preregistration authorized in § 408(f) for categories of works with “a history of infringement prior to authorized commercial distribution,” the immediate right to sue for infringement of live broadcasts provided for in § 411(c), and the fee-based expedited review option provided for by the Copyright Office.28

Holding

The Court affirmed the Eleventh Circuit’s registration approach, holding that a copyright claimant may not commence an infringement suit until the Copyright Office registers the copyright.29 Once registered, the copyright owner can recover for preregistration and postregistration infringement.

The Court first addressed the meaning of the words in the Copyright Act that set forth the registration requirements. “[R]ead together, § 411(a)’s opening sentences focus not on the claimant’s act of applying for registration, but on action by the Copyright Office—namely, its registration or refusal to register a copyright claim.”30 Justice Ginsburg explained that if an application alone was enough to file an infringement claim, the second sentence of § 411(a), permitting suit upon a refusal of registration, “would be superfluous,” and that any contrary reading would “require[] the implausible assumption that Congress gave ‘registration’ different meanings in consecutive, related sentences within a single statutory provision.”31 The Court noted that § 408(f), which provides a preregistration option for works most susceptible to prepublication infringement, would also be superfluous if a completed application constituted registration, because copyright owners concerned with prepublication infringement would have no reason to apply for preregistration—they could just file an application.32

In response to Fourth Estate’s argument that the registration approach deprives a copyright owner of the right to sue while awaiting a final decision from the Copyright Office, the Court noted that Congress had repeatedly considered that issue and enacted explicit exceptions to address such concerns in specific circumstances, including the preregistration option provided in § 408(f) for owners of works especially vulnerable to prepublication infringement, the rights conferred by § 411(c) authorizing immediate infringement suits for live broadcasts,33 and the Copyright Office’s special handling rules, which allow applicants to seek expedited processing of their applications for an additional fee (currently $800).

Finally, the Court acknowledged that while registration processing times have increased and that the statutory scheme “has not worked as Congress likely envisioned,” ultimately any delays in Copyright Office processing time are “attributable, in large measure, to staffing and budgetary shortages that Congress can alleviate, but courts cannot cure.”34

The Copyright Alliance, Authors Guild, and RIAA all expressed their unhappiness with the Court’s ruling. RIAA chairman and CEO Mitch Glazier said, “This ruling allows administrative backlog to prejudice the timely enforcement of constitutionally based rights and prevents necessary and immediate action against infringement that happens at Internet speed. Given this ruling, the Copyright Office must also work at Internet speed to ensure adequate enforcement protects essential rights.”35 Senators Thom Tillis (R-N.C.) and Chris Coons (D-Del.), chairman and ranking member, respectively, of the Senate Judiciary Committee’s Subcommittee on Intellectual Property, also sent a letter to the Acting Register of Copyrights, Karyn Temple, expressing concerns about the Copyright Office’s ability to streamline and further modernize the registration process in light of the Fourth Estate holding.36 The letter requested responses to a series of questions regarding the registration process and potential for administrative backlog.

The Fourth Estate ruling has been applauded by some and decried by others, but like it or not, the registration approach is firmly fixed in law. What, if any, are the implications of this ruling for copyright owners, particularly the industries that stand to be affected most by this ruling?

Post-Fourth Estate

The truth is that not much will change after Fourth Estate. Copyright practitioners, individuals, and companies, especially those in copyright-centric fields that follow best practices, already register early, unpublished, prepublication, or promptly upon publication, to preserve rights and remedies to the greatest extent possible. Jurisdictions where the “application approach” was followed no longer present a home court advantage for copyright applicants. Even in those jurisdictions, best practices will not change. Copyright owners could never be sure whether an infringement claim would arise in a jurisdiction where the application approach would be applied, or in another part of the country where the registration approach reigned supreme. The value of Fourth Estate is in its clarity, by deciding which of two plausible interpretations of § 410 is the law of the land.

Justice Ginsberg noted that copyright owners and content producers in the entertainment industry, such as the movie and music industries, are particularly vulnerable to predistribution infringement, but, for an increased registration fee, preregistration is available for certain classes of works, including motion pictures, sounds recordings, and musical compositions. Those involved in live broadcasting in the television and radio industries will continue to be able to sue for infringement of a live broadcast prior to registration. While the preregistration option is useful for industries with the financial resources to regularize such applications, some individual authors and content creators will still lack the financial resources to fully avail themselves of the benefits of registering or preregistering each and every work.

Strict application of the registration approach may inspire a greater appreciation for certain provisions of the Digital Millennium Copyright Act (DMCA). For example, § 1202 of the Copyright Act, implementing a provision of the DMCA, provides that no one may “intentionally remove or alter any copyright management information” or distribute works with such information removed, in order to conceal copyright infringement.37 Copyright management information includes information conveyed in connection with copies of a work, such as the title, author, and copyright notice. Filing a lawsuit to enforce the DMCA prohibitions against removing or altering copyright management information does not require registration. Accordingly, copyright owners do not have to register their works in advance to recover the statutory fees under § 1202, which range from $2,500 to $25,000.38

Another feature of the DMCA implicated by Fourth Estate is the “notice and takedown” process.39 It will be more important than ever for content creators in industries where a work can go viral quickly and invite immediate infringement—e.g., video games, smartphone app development, and the music industry—to secure prompt registrations. Such claimants may need to act quickly to seek equitable relief to stop the infringement. A copyright claimant does not need to register a work before sending a takedown notice under the DMCA, and most of the time no counter-notice is filed. However, if a counter-notification requesting the reinstatement of the work is filed, the claimant will need a registration or authorized preregistration in hand to file an infringement suit within the short time period required under the DMCA to avoid reinstatement of the infringing work. As a practical matter, preregistration should become the rule for eligible content developers.

The Fourth Estate ruling has already disrupted important video game copyright cases pending in the Central District of California involving the increasingly popular multiplayer game Fortnite. The game allows players to make in-game purchases, including an option to have in-game characters perform popular dances. Some of the available dances were allegedly created by pop culture figures outside the scope of the game, and five of those individuals recently filed lawsuits against Fortnite’s creator, Epic Games, in district court in California—at the time, an application approach jurisdiction.40 The Copyright Office, however, had not yet issued a determination on the plaintiffs’ application. In the aftermath of Fourth Estate, the plaintiffs withdrew their complaints, asserting that they would refile once the Copyright Office issued a determination on their applications.

Conclusion

By resolving this long-standing circuit split, the Supreme Court provided U.S. copyright owners with certainty on a fundamental requirement for enforcing their rights. The importance and advantages of timely registration are crystalized in Fourth Estate and should motivate copyright owners, especially those in the entertainment and digital media industries, to reevaluate their copyright registration practices, and to make improvements where warranted. There may be an uptick in copyright applications, with more applicants promptly registering upon creation of a work, and utilizing the preregistration option. At the very least, the Fourth Estate decision should be appreciated for clearly and definitively ruling that an application is not a registration.

Endnotes

1. 139 S. Ct. 881 (2019).

2. 17 U.S.C. § 411(a).

3. Id. § 408(f)(2).

4. See id. §§ 408(b), 409, 708.

5. See Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 125 (2d Cir. 2014); Alicea v. Machete Music, 744 F.3d 773, 779 (1st Cir. 2014).

6. 606 F.3d 612 (9th Cir. 2010), abrogated by Fourth Estate, 139 S. Ct. 881.

7. Id. at 615–16 (citing for the application approach Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 386–87 (5th Cir. 1984), and Chicago Bd. of Educ. v. Substance, Inc., 354 F.3d 624, 631 (7th Cir. 2003); and citing for the registration approach La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1202–04 (10th Cir. 2005), abrogated by Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010), and M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1489 (11th Cir. 1990), abrogated in part by Reed Elsevier, 130 S. Ct. at 1243 & n.2).

8. Id. at 619.

9. 17 U.S.C. § 410(a) (emphasis added).

10. Id. § 408(a).

11. Cosmetic Ideas, 606 F.3d at 616.

12. However, in cases where an infringement lawsuit is filed after a registration application has been rejected, the Copyright Office can then join the lawsuit by asserting that the plaintiff’s work is not entitled to copyright protection.

13. Cosmetic Ideas, 606 F.3d at 620.

14. Id. at 621.

15. 416 F.3d 1195 (10th Cir. 2005).

16. Id. at 1204.

17. Id. at 1200; see also Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 856 F.3d 1338, 1341–42 (11th Cir. 2017), aff’d, 139 S. Ct. 881 (2019).

18. Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, No. 16-60497-CIV, 2016 WL 9045625, at *1 (S.D. Fla. May 23, 2016), aff’d, 856 F.3d 1338 (11th Cir. 2017), aff’d, 139 S. Ct. 881 (2019).

19. See Brief for the National Music Publishers’ Association et al. as Amici Curiae in Support of Petitioner at 8, Fourth Estate, 139 S. Ct. 881 (No. 17-571) [hereinafter NMPA Brief].

20. Id. at 19–26; see also Brief of Amicus Curiae the Copyright Alliance in Support of Petitioner at 10–19, Fourth Estate, 139 S. Ct. 881 (No. 17-571).

21. See generally NMPA Brief, supra note 19.

22. Id. at 19–20.

23. Id. at 21.

24. See Brief of Amicus Curiae the International Trademark Association in Support of Petitioner at 9–10, Fourth Estate, 139 S. Ct. 881 (No. 17-571).

25. Id. at 9–13.

26. See Brief for the United States as Amicus Curiae Supporting Respondents at 14–20, Fourth Estate, 139 S. Ct. 881 (No. 17-571) [hereinafter United States Oct. 2018 Brief]; Brief for the United States as Amicus Curiae at 12–14, Fourth Estate, 139 S. Ct. 881 (No. 17-571) [hereinafter United States May 2018 Brief].

27. United States Oct. 2018 Brief, supra note 26, at 17–20; United States May 2018 Brief, supra note 26, at 14–16.

28. See United States Oct. 2018 Brief, supra note 26, at 32.

29. Fourth Estate, 139 S. Ct. at 886.

30. Id. at 888–89.

31. Id.

32. Id. at 889.

33. Id. at 889–92.

34. Id. at 892.

35. See RIAA Reaction to SCOTUS Fourth Estate Copyright Decision, RIAA News (Mar. 4, 2019), https://www.riaa.com/riaa-reaction-scotus-fourth-estate-copyright-decision/.

36. Letter from Thom Tillis & Christopher A. Coons, U.S. Senators, to Karyn Temple, Acting Register of Copyrights (Mar. 14, 2019), https://www.tillis.senate.gov/public/_cache/files/c633cc00-5326-4e2e-99e7-f5e544fb53f1/3.14-tt-cc-ltr-to-copyright-office-re-fourth-estate.pdf.

37. 17 U.S.C. § 1202.

38. Id. § 1203.

39. When a copyright holder learns of a violation, a DMCA takedown notice identifying the original copyrighted work and the material infringing on copyright can be issued to the service that hosts the offending website or to the Internet service provider (ISP) of the violator.

40. See, e.g., Ferguson v. Epic Games, Inc., No. 2:18-cv-10110 (C.D. Cal. filed Dec. 05, 2018); McCumbers v. Epic Games, Inc., No. 2:19-cv-00260-FMP-PJW (C.D. Cal. filed Jan. 1, 2019); see also Ashley Cullins, “Fortnite” Legal Dance Battles Paused Following Supreme Court Ruling, Hollywood Rep. (Mar. 7, 2019), https://www.hollywoodreporter.com/thr-esq/fortnite-legal-dance-battles-paused-supreme-court-ruling-1193167.

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E. Scott Johnson is a shareholder with Baker Donelson in Baltimore, Maryland. He is cochair of the Copyright, Media and Entertainment Group.

Julius Bodie is an associate with Baker Donelson in Washington, D.C. He is a member of the firm’s Global Business Team as well as the Copyright, Media and Entertainment Group.