226 F.Supp. 337 (S.D.N.Y. 1964), T. B. Harms Co. v. Eliscu

Citation:226 F.Supp. 337
Party Name:141 U.S.P.Q. 11 T. B. HARMS COMPANY, Plaintiff, v. Edward ELISCU and Ross Jungnickel, Inc., Defendants.
Case Date:February 06, 1964
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 337

226 F.Supp. 337 (S.D.N.Y. 1964)

141 U.S.P.Q. 11

T. B. HARMS COMPANY, Plaintiff,


Edward ELISCU and Ross Jungnickel, Inc., Defendants.

United States District Court, S.D. New York

Feb. 6, 1964

Page 338

Gustave B. Garfield, New York City, for plaintiff.

Linden & Deutsch, New York City, David Blasband, Philadelphia, Pa., of counsel, for defendant, Edward Eliscu.

Feinman & Dreyer, New York City, Lewis A. Dreyer, Norma Hack, New York City, of counsel, for defendant, Ross Jungnickel, Inc.

WEINFELD, District Judge.

This action, charging copyright infringement, was instituted seven weeks after Edward Eliscu, one of the two defendants herein, had commenced an action in the Supreme Court of the State of New York, in which the plaintiff herein was named as the defendant. In that action Eliscu seeks an adjudication that he is the owner of an undivided one-third interest in the renewal terms of four musical compositions, which are the subject matter of this suit, and an accounting for his claimed share of moneys received by plaintiff in their exploitation.

Eliscu and the co-defendant, Ross Jungnickel, Inc., each moves pursuant to Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the complaint in this action for failure to state a claim upon which relief can be granted and for lack of jurisdiction over the subject matter. The parties have submitted affidavits as permitted under Rule 12, and the motion is treated as one for summary judgment.

The complaint, setting forth a single claim, contains formal allegations that the action is one arising under the Copyright Act and seeks a declaratory judgment adjudging that plaintiff is the owner of Eliscu's interest in the renewal copyrights of the four songs, and also incidental relief based upon such ownership.

The essential ground of the defendants' motion is that despite allegations of copyright infringement, the undisputed facts show that no acts have been committed or threatened which in any respect violate the copyrights, and that the hard core of the plaintiff's claim is one of title to a one-third interest in the renewal terms of the four songs, the very issue posed in the earlier suit commenced by Eliscu in the State Supreme Court, and that since all the parties are New York citizens, the Court is without jurisdiction over the subject matter. In considering the plea of lack of jurisdiction, the formal allegations must yield to the substance of the claim. 1 The mere circumstance that the suit incidentally centers about a copyright does not, in and of itself, support Federal jurisdiction. 2

Despite the very voluminous complaint, sprinkled with charges of conspiracy and unfair competition, and the equally voluminous papers submitted by the parties in support of their respective positions on this motion, the fundamental controversy revolves about whether or not the defendant Eliscu executed an agreement dated June 30, 1933. The plaintiff's claim to the renewal terms, and its right to all collateral relief sought by this action, derives from this instrument (an exhibit on this motion), on which the defendant's name, admittedly not his signature, is handwritten. The plaintiff asserts that the exhibit is a conformed and true copy of a lost or misplaced original agreement between Eliscu and the publisher which, if authentic, is an assignment by Eliscu of his renewal rights as a co-lyricist in and to the four musical compositions. Eliscu denies that he ever executed the purported agreement of June 30, 1933, any counterpart, or any other instrument whereby he assigned his renewal rights to plaintiff or its assignor.

It is clear, at least up to this point, that plaintiff's claim to Eliscu's

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renewal rights arises by virtue of an agreement, the existence of which plaintiff asserts, and the defendant Eliscu, with equal force, denies. The resolution of this disputed issue determines who is the owner of the undivided one-third renewal interest. In this aspect of the matter it is beyond question that no claim is presented arising under the Copyright Act of the United States and that Federal jurisdiction is lacking. 3 The plaintiff contends, however, that jurisdiction is preserved by allegations of infringement, actual and threatened...

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