Keith v. Scruggs

• Citation: 507 F. Supp. 968
• Decision Date: 25 February 1981
• Docket Number: No. 80 Civ 5095 (GLG).,80 Civ 5095 (GLG).
• Parties: William Bradford KEITH, a/k/a Bill Keith, Plaintiff, v. Earl SCRUGGS, Louise Scruggs, Earl Scruggs and Son, Inc. and Peer International Corporation, Defendants.
• Court: U.S. District Court — Southern District of New York

507 F. Supp. 968

William Bradford KEITH, a/k/a Bill Keith, Plaintiff, v. Earl SCRUGGS, Louise Scruggs, Earl Scruggs and Son, Inc. and Peer International Corporation, Defendants.

No. 80 Civ 5095 (GLG).

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

February 25, 1981.

Herbert I. Deutsch, New York City, for plaintiff by Kramer & Salus, Philadelphia, Pa., of counsel.

Kaye, Scholer, Fierman, Hays & Handler, New York City, for defendants by Mark Landau, New York City, of counsel.

OPINION

GOETTEL, District Judge:

The events that form the basis of this action date back to 1963. Plaintiff William Bradford Keith ("Keith"), then a college student and avid admirer of defendant Earl Scruggs ("Scruggs"), an internationally renowned banjo player, approached Scruggs with a collection of "tablature" transcriptions of Scruggs's music that Keith had written and assembled. Plaintiff alleges that, on Scruggs's invitation, he entered into an oral agreement with Scruggs whereby he agreed to assist in the preparation of a banjo instruction book and record album in exchange for a share of the profits and royalties to be realized from these works. Defendant Peer International Corporation ("Peer"), which had a long-standing business relationship with Scruggs, purchased the rights to the manuscript and record from Scruggs and subsequently published them in the late 1960's.

Plaintiff commenced this action on September 8, 1980, against Scruggs and Peer, alleging six separate causes of action including breach of contract, breach of fiduciary duty, interference with advantageous relationship, actual and constructive fraud, co-ownership of literary property, and co-ownership of a federal copyright. He predicates federal jurisdiction upon 28 U.S.C. § 1338, claiming that the action "arises under" the Copyright Act of 1909, 17 U.S.C. § 1 et seq. (1976), and the Copyright Act of 1976, 17 U.S.C. § 101 et seq. (Supp. III 1979). See generally 3 Nimmer on Copyright § 12.01 (1980).

Defendants have moved to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). (There is no diversity jurisdiction.) They argue that none of plaintiff's claims "arises under" the copyright laws. This Court agrees. Accordingly, for the reasons set out below, the motion is granted and the action is dismissed.

Whether an action "arises under" the copyright laws concerns a murky area of the law. Royalty Control Corp. v. Sanco, Inc., 175 U.S.P.Q. (BNA) 641, 642 (N.D.Cal. 1972). The oft-cited rule, as set forth in Judge Friendly's opinion in T. B. Harms Co. v. Eliscu, 339 F.2d 823 (2d Cir. 1964), cert. denied, 381 U.S. 915, 85 S.Ct. 1534, 14 L.Ed.2d 435 (1965), is that:

an action "arises under" the Copyright Act if and only if the complaint is for a remedy expressly granted by the Act, e. g., a suit for infringement ..., or asserts a claim requiring construction of the Act, ... or, at the very least and perhaps more doubtfully, presents a case where a distinctive policy of the Act requires that federal principles control the disposition of the claim.

Id. at 828. See also Elan Associates, Ltd. v. Quackenbush Music, Ltd., 339 F.Supp. 461 (S.D.N.Y.1972).

To determine whether the claim "arises under" the copyright laws, the Court must look to the essence of the plaintiff's claim. See Newman v. Crowell, 205 U.S.P.Q. (BNA) 517, 519 (S.D.N.Y.1979). The federal question "`must be disclosed upon the face of the complaint'" and "`must be an element, and an essential one, of the plaintiff's cause of action.'" Phillips Petroleum Co. v. Texaco Inc., 415 U.S. 125, 127, 94 S.Ct. 1002, 1003, 39 L.Ed.2d 209 (1974) (quoting Gully v. First National Bank, 299 U.S. 109, 112, 113, 57 S.Ct. 96, 97, 98, 81 L.Ed. 70 (1936)).

Plaintiff's complaint presents only one federal claim: that plaintiff should be declared a co-owner of the federal copyrights obtained by defendant Peer. Courts in this circuit have held that actions to establish title do not "arise under" the copyright laws. In Newman v. Crowell, supra, for example, the plaintiff alleged that he was a co-author of a "rock 'n roll encyclopedia." Judge Stewart, ruling that there was no federal jurisdiction, held that "an action to establish title is not one `arising under' the Copyright Act so as to give the federal courts jurisdiction." 205 U.S.P.Q. (BNA) at 519. Similarly, in Harrington v. Mure, 186 F.Supp. 655 (S.D.N.Y. 1960), the plaintiff sought a declaration of his rights as an alleged co-author of a musical composition. Judge Palmieri dismissed the action for lack of federal jurisdiction, noting that the plaintiff's action should have been brought in state court. Id. at 658.

Plaintiff attempts to distinguish these cases by listing various issues that may require construction of the copyright laws, citing Royalty Control Corp. v. Sanco, Inc., supra. However, although plaintiff lists these potential issues in his brief, he does not allege the facts underlying them in his complaint, as required by Phillips Petroleum Co. v. Texaco...