Christopher v. Cavallo

• Decision Date: 30 October 1981
• Docket Number: No. 80-1712,80-1712
• Citation: 218 USPQ 396,662 F.2d 1082
• Parties: , 1981 Copr.L.Dec. P 25,325 Michael CHRISTOPHER, t/a Barn Dinner Theatre, Appellee, v. Ardith CAVALLO, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1082

662 F.2d 1082

218 U.S.P.Q. 396, 1981 Copr.L.Dec. P 25,325

Michael CHRISTOPHER, t/a Barn Dinner Theatre, Appellee, v. Ardith CAVALLO, Appellant.

No. 80-1712.

United States Court of Appeals Fourth Circuit.

Argued May 5, 1981.

Decided Oct. 30, 1981.

J. Michael Cleary, Washington, D.C. (E. Fulton Brylawski, Brylawski & Cleary, Washington, D.C., La Rue Van Meter, Falls Church, Va., on brief), for appellant.

Thomas L. Rowe, Chesterfield, Va. (Henry A. Conner, Jr., Richmond, Va., on brief), for appellee.

Before WINTER, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.

WIDENER, Circuit Judge:

On March 5, 1979, the appellant, Ardith Cavallo, entered into a contract with Michael Christopher, the operator of the Barn Dinner Theater in Richmond, Virginia, licensing Christopher to produce and present to the paying public a musical play entitled "Peter Pan-The Magical Musical," which play she claimed to own and to have principally created. This work closely resembled the classic play by James M. Barrie entitled "Peter Pan or The Boy Who Would Not Grow Up," the copyright for which is held by The Hospital for Sick Children, Great Ormond Street, London, and which is licensed for production in the United States exclusively by Samuel French, Inc. ¹ Upon discovering that Christopher intended to produce Mrs. Cavallo's work, the Hospital and French sought and obtained an injunction of that production, and were awarded the sum of $5,000.00 in lieu of actual damages, statutory damages, profits, attorneys' fees and costs.

In the instant case, Christopher sued to recover this sum and other damages from Mrs. Cavallo on the grounds that she fraudulently misrepresented that her work did not constitute an infringement upon the Barrie copyright and that she had breached her warranty that she had sufficient title to her play to sell or license it. The district court denied appellant's motion to dismiss these claims for lack of subject matter jurisdiction and upon trial held that Mrs. Cavallo was liable to Christopher as a result of her breach of warranty of good title. She appeals, and we affirm.

While Mrs. Cavallo bases her appeal on several grounds, we find only the challenge to the district court's assertion of subject matter jurisdiction worthy of discussion. In his complaint, Christopher asserted that this action arises under the copyright laws of the United States and under the law of Virginia and thus is subject to adjudication in the district court. Mrs. Cavallo challenges this assertion, contending that the complaint did not raise an issue requiring the interpretation of the copyright laws of the United States and that, absent an allegation of another jurisdictional basis, Christopher's claims were not cognizable in the district court.

Congress has granted the district courts exclusive original jurisdiction of civil actions arising under any Act of Congress relating to copyrights. 28 U.S.C. § 1338(a). Whether such a question is presented is determined from the plaintiff's initial pleading. Louisville & Nashville Railroad Company v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). "To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action." Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936) (emphasis added); McCorkle v. First National Pennsylvania Banking & Trust Company, 459 F.2d 243, 250 (4th Cir. 1972). Applying this principle in the context of a copyright claim in T. B. Harms Company v. Eliscu, 339 F.2d 823, 828 (2d Cir. 1964), Judge Friendly stated that an...