Choe v. Fordham University School of Law

• Decision Date: 12 July 1995
• Docket Number: No. 93 Civ. 5992 (MBM).,93 Civ. 5992 (MBM).
• Citation: 920 F. Supp. 44
• Parties: Jerry CHOE, Plaintiff, v. FORDHAM UNIVERSITY SCHOOL OF LAW, Fordham International Law Journal, Defendants.
• Court: U.S. District Court — Southern District of New York

920 F. Supp. 44

Jerry CHOE, Plaintiff, v. FORDHAM UNIVERSITY SCHOOL OF LAW, Fordham International Law Journal, Defendants.

No. 93 Civ. 5992 (MBM).

United States District Court, S.D. New York.

July 12, 1995.

Barton Denis Eaton, White Plains, NY, for plaintiff.

David B. Rigney and Edward J. Klaris, Lankenau Kovner & Kurtz, New York City, for Defendants.

OPINION AND ORDER

MUKASEY, District Judge.

Plaintiff, Jerry Choe, has sued Fordham University School of Law and Fordham International Law Journal ("ILJ") for their alleged mutilation of his Comment, Fortino v. Quasar: Parent-Right Invocation for U.S. Subsidiaries of Japanese Companies Under U.S. — Japan Treaty of Friendship, Commerce, and Navigation, 15 Fordham Int'l L.J. 1130 (1992). He claims defendants violated § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and his federal common law "moral rights." In addition to these two federal claims, plaintiff asserts five pendent state claims, including libel, breach of contract, negligence, and invasion of his "moral rights" and right to privacy. Both parties have moved for summary judgment. For the reasons given below, defendants' motion is granted, and the complaint is dismissed.

I.

The following facts are based on affidavits, depositions, and other exhibits. Plaintiff succeeded on his second attempt to gain admission to ILJ, in the Spring of his second year of law school. (Choe Dep. at 10) In either the late Summer or early Fall of his third year, Choe began research on the district court decision Fortino v. Quasar Co., 751 F.Supp. 1306 (N.D.Ill.1990), rev'd, 950 F.2d 389 (7th Cir.1991), the case that became the subject of his Comment. (Id. at 12) During the school year, plaintiff worked closely with two ILJ editors to develop his Comment. (Id. at 16) When plaintiff graduated from law school, his Comment had been through several drafts, and was approved by the graduating editors for publication. (Id. at 24) A new board of editors took over the journal, and had responsibility for publishing the volume in which plaintiff's Comment appeared. (Id. at 25) However, according to Eileen McCarthy, the then editor-in-chief of ILJ, each author had principal and ultimate responsibility for insuring that the published work was presented in acceptable form. (McCarthy Aff. ¶ 6) Choe averred that the new editors were not only inexperienced text editors but also "had only the sketchiest substantive knowledge of the rather abstruse subject matter of the Comment." (Choe Aff. ¶ 4)

After finishing the New York State bar examination on July 29, 1992, plaintiff met with the editor-in-chief and managing editor of ILJ to edit and discuss the second page proofs of his Comment. (Choe Dep. at 28) Plaintiff and the editors worked together for a few hours that afternoon, and all the following day and evening. (Id. at 28-29; McCarthy Aff. ¶ 7) Although Choe testified that he understood this was his last opportunity to suggest changes before publication (Choe Dep. at 32), he averred later that the editors refused because of time restraints his later request to view the Comment. (Choe Supp. Aff. ¶¶ 11-12) Choe and the editors went over each page of the Comment (Choe Dep. at 30; McCarthy Aff. ¶ 7; McCarthy Supp. Aff. ¶ 4), and Choe corrected each error with red ink on the page proof itself. (Choe Dep. at 30) After making all the necessary corrections, Choe and the editors allegedly shook hands, "reflecting the clear understanding that we were all in agreement on the final review and editing of Choe's comment." (McCarthy Aff. ¶ 10) There were no further corrections to the page proof before the Comment was sent to the printer. (McCarthy Supp.Aff. ¶ 5) Choe apparently kept no copies of the corrected proofs. The next day, Choe returned to the ILJ office with an executed grant of license approving the journal's publication of his Comment. (Choe Dep. at 39) In early August, the managing editor sent edited book proofs back to the publisher, which included 24 corrected typographical errors in plaintiff's Comment. (McCarthy Supp.Aff. ¶ 8, Ex. A)

In his continuing effort to find legal employment, plaintiff informed various employers of his soon-to-be published Comment. (Choe Dep. at 41) When Choe read his Comment in print, however, he was horrified to discover numerous alleged substantive and typographical errors. Defendants allegedly presented to the public a "garbled and distorted version of plaintiff sic work." (Amend.Compl. ¶ 18) Many of the alleged errors were "plain, old-fashioned typos which surely are as much the copy's sic editors' province sic as they are the author's (if not moreso sic)." (Choe Aff. ¶ 21(a)) Choe averred that "various of the mutilations occurred on nearly every single page of the Comment." (Id. ¶ 3)

Several months after the Comment appeared in print, Choe presented his grievances about the Comment to two Fordham law professors. Based on Choe's description of the alleged errors in his Comment, the professors and Choe agreed that ILJ had three options: 1) issue an errata sheet; 2) issue a separate bound reprint to be placed next to the bound volume; 3) republish the corrected Comment in a new issue and send a sticker to be placed on the front page of the original article to all subscribers, alerting them to the reprinted Comment. (Choe Aff. Ex. 4) The professors, and a former editor-in-chief of ILJ, agreed that the third option was best. After actually reading Choe's Comment and his suggested changes several months later, however, both professors changed their minds and suggested instead that the errors be corrected in a reprint, and that an errata sheet be sent to all subscribers. (Vairo Aff. Exs. C, D)

The ILJ Board of Editors agreed to discuss with Choe his allegedly "mangled" Comment. Choe signed an agreement with the Board that he would abide by its decision about what action, if any, it decided to take. (Choe Dep. at 61-64) Choe presented the Board with a copy of his Comment marked with 17 of the "very most sic egregious substantive errors" in order to "demonstrate their vast extent and to underscore just how stupid they make both me and the Journal itself to sic look." (Choe Aff. ¶ 11 (emphasis in original)) Choe's 17 substantive errors can be grouped as follows: "treaty" was changed improperly to "FCN Treaty" in 12 places; "treaty" should have been "Treaty" in two instances; "parent's" should have been deleted in three references to the FCN Treaty; five footnote cross-references were misnumbered; two sentences needed rewriting; and numerous typographical errors marred the text. (McCarthy Aff. ¶ 11, Ex. C) Of these, the most serious are the unwanted appearance of the word "parent's" in three places. (Choe Dep. at 211; McCarthy Aff., Ex. C at 1133, 1143, 1145) The three sentences, with the word "parent's" bracketed, are as follows:

In Sumitomo, the Supreme Court rejected the right to assign defense and unanimously held that U.S. subsidiaries of Japanese companies can not take advantage of the parent's rights conferred by Article VIII(1).

Sumitomo argued that under the FCN Treaty, the legal form of the parent's U.S. investment is not significant.

Finding it unlikely that the FCN Treaty would permit Japanese companies to manage U.S. subsidiaries while depriving the subsidiaries of the parent's ability to invoke the FCN Treaty's protections, the court held that Sumitomo was a "company of Japan" protected by Article VIII(1).

(McCarthy Aff. Ex. C at 1133, 1143, 1145) After meeting with Choe, the Board decided that it would print an errata sheet. (Choe Aff. ¶ 12) Choe did not accept that solution, and instead filed this action.

Between the time he met with the ILJ Board and the time he sued, Choe found many additional errors in his Comment. (Choe Aff. Ex. 3) Most of his suggested corrections "are absolutely necessary sic and undebatable errors of substance, some even being obvious to the naked eye sic." (Choe Aff. ¶ 21(c)) Although Choe apparently kept no copies of the proofs he corrected, he asserts that he has "pretty much a photographic recall of my final corrections," and claims that the mistakes that marred his Comment were either not present in the second page proofs, or were corrected by him during the July meetings. (Id. at ¶ 21(a)-(c)) Choe testified that readers of his Comment in its current form would think the "author was very sloppy, careless, and stupid for putting some words where they don't belong." (Choe Dep. at 215) Despite the errors, however, readers would "uncover the essential meaning and, you know, realize that it is a good, well-researched, and argued piece; just that they would think it was done by someone who was a terrible writer." (Id.) Choe's realization that his Comment would be understood by readers in its current form was borne out when a student Note in the Stanford Law Review cited accurately Choe's arguments in two footnotes. (Vairo Aff. ¶ 6, Ex. A) Choe conceded at his deposition that the Stanford Note recorded accurately his Comment's argument. (Choe Dep. at 210)

Plaintiff asserts a variety of federal and New York State claims, including violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); violation of moral rights under the common law of the United States and of New York State; libel; breach of contract; negligence; and invasion of privacy. (Amend.Compl. ¶¶ 15-39) In their Answer, defendants assert six affirmative defenses, including contributory negligence, lack of reliance on defendants' acts or omissions and good faith.

II.

Section 43(a) of the Lanham Act provides, in pertinent part, that:

any person who ... uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which ... is likely to cause confusion ... as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by

...