Quinto v. Legal Times of Washington, Inc.

• Decision Date: 26 January 1981
• Docket Number: Civ. A. No. 80-1005.
• Parties: David QUINTO, Plaintiff, v. LEGAL TIMES OF WASHINGTON, INC., et al., Defendants.
• Court: U.S. District Court — District of Columbia

506 F. Supp. 554

David QUINTO, Plaintiff, v. LEGAL TIMES OF WASHINGTON, INC., et al., Defendants.

Civ. A. No. 80-1005.

United States District Court, District of Columbia.

January 26, 1981.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David Quinto, pro se.

E. Fulton Brylawski, J. Michael Cleary, Edwin Komen, Brylawski & Cleary, Washington, D. C., for defendants Beckwith and Legal Times.

MEMORANDUM

FLANNERY, District Judge.

This suit for copyright infringement comes before the court on cross-motions for summary judgment. Defendants Stephen A. Glasser and Lynn S. Glasser have filed a motion to dismiss for lack of personal jurisdiction. The Glassers, the Legal Times, and defendant David C. Beckwith have filed a motion to dismiss for lack of subject matter jurisdiction.

Facts

Accepting defendants' version of the facts, in late July or early August, 1979, plaintiff, a second-year student at Harvard Law School, decided to write an article describing the experiences Harvard Law students had while employed by law firms in the summer of 1979. Plaintiff prepared the article by interviewing his friends and recording their remarks in a notebook. Some of his notes included extensive quotations.

Plaintiff then wrote an article based on these interviews and submitted it to the editor-in-chief of the Harvard Law Record, a newspaper published by students at Harvard Law School. The article consisted primarily of descriptions of the perquisites law firms provided to their summer associates. Minor editorial changes were made and the final product appeared on the front page of the September 21, 1979 Harvard Law Record under the title of "HLS Clerks Get Offers They (Sigh) Can't Refuse." The byline read "By Dave Quinto".

The article did not bear a separate copyright notice. However, the masthead of the newspaper carried a copyright notice in the name of the Harvard Law School Record Corporation which satisfied the blanket notice provision contained in 17 U.S.C. § 404(a).

The Legal Times published a verbatim copy of plaintiff's article in its October 15, 1979 issue. The only difference in the article as it appeared in the Harvard Law Record and in the Legal Times is that the Legal Times deleted two of the seventeen paragraphs, apparently so that the article would fit on the page.

Plaintiff registered a claim of copyright in his article with the United States Copyright Office on December 6, 1979 in order to preserve his legal remedies under the Copyright Act.

Glassers' Motion to Dismiss for Lack of Personal Jurisdiction

Defendants Stephen A. Glasser and Lynn S. Glasser are corporate officers and part-owners of the parent company of the Legal Times. They reside in New Jersey and exercise control over some aspects of the newspaper's operations. Plaintiff seeks to find them liable for the alleged copyright infringement on the grounds they benefited from it and had the ability to prevent it. See Warner Bros., Inc. v. O'Keefe, 468 F.Supp. 16, 19 (S.D.Iowa 1978).

The only basis for this court exercising personal jurisdiction over the Glassers is the District of Columbia Long-Arm Statute, D.C.Code § 13-423. The statute provides in relevant part, as follows:

(a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's — (1) transacting any business in the District of Columbia;

. . . . .

(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia;

(4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods, used or consumed, or services rendered in the District of Columbia;

. . . . .

While the Glassers may have conducted substantial business in the District of Columbia, their activities were conducted on behalf of the corporation. There is no allegation that they conducted any business as individuals, and as a result, sections (a)(1) and (a)(4) of the Long-Arm Statute are not available to plaintiff as a basis for jurisdiction. Security Bank, N.A. v. Tauber, 347 F.Supp. 511, 516 (D.D.C.1972). Similarly, the Glassers' failure to supervise the activities of the Legal Times in a manner which would have prevented republication of plaintiff's article cannot be considered acts or omissions in their individual capacities, since any actions they might have taken would have been in their official capacities. Thus jurisdiction cannot be conferred by section (a)(3).

Accordingly, the Glassers' motion to dismiss for lack of personal jurisdiction is granted.

Motion to Dismiss for Lack of Subject Matter Jurisdiction

Defendants contend that the court lacks subject matter jurisdiction over this action because of plaintiff's failure to record a transfer of copyright in the Copyright Office as required by § 205(d) of the Copyright Act, 17 U.S.C. That section provides that

No person claiming by virtue of a transfer to be the owner of a copyright or any exclusive right under copyright is entitled to institute an infringement action under this title until the instrument of transfer under which such person claims has been recorded in the Copyright Office, but suit may be instituted after such recordation on a cause of action that arose before recordation.

According to defendants, plaintiff must claim a copyright in his work by virtue of a transfer because the Harvard Law Record owned the copyright to the article, either because it was a work for hire or because plaintiff assigned his copyright to the Record and later ratified the assignment. It is not disputed that when the Record executed a document assigning its copyright in plaintiff's article to him, he did not record the transfer.

Section 201(b) of the Copyright Act states that in the case of a work made for hire, the employer or person for whom the work was prepared owns the copyright. In contrast, under § 201(c) the copyright to a separate contribution to a collective work vests initially in the author. Thus the court must decide whether Quinto's article is a work for hire or a contribution to a collective work.

A comprehensive treatment of the difference between a contribution to a collective work and a work for hire is found in Picture Music, Inc. v. Bourne, Inc., 314 F.Supp. 640, 649-52 (S.D.N.Y.1970), aff'd 457 F.2d 1213 (2d Cir.), cert. denied, 409 U.S. 997, 93 S.Ct. 320, 34 L.Ed.2d 262 (1972). The court listed numerous factors bearing on the distinction, including whether the author was paid for his work; whether he created the work of his own volition; whether the author was a party to an express contract for hire, especially one restricting his freedom to engage in other writing activities for hire; whether the author maintained regular working hours, and whether the creative work occurred at the employer's place of business.

It would be difficult to envision a case where it is more clear than it is here that the article was a contribution to a collective work and not a work for hire. It is uncontested that plaintiff received no compensation for his article, that the idea to write it was entirely his, that he was not a party to an express contract for hire and was free to engage in other writing activities for pay, that he had no regular working hours and that neither the interviews nor the initial writing occurred at the Record's offices.

To prevail on this motion, defendants must show that the Record owned the copyright to plaintiff's article. To do so, they depend on an assignment of copyright from the Record to Quinto. It came about because plaintiff thought the Copyright Office might take the position that his article was a work for hire, in which case he would need the assignment to register his copyright. To counter this possibility, on October 28, 1979, plaintiff and the Record executed a document assigning the Record's entire interest in plaintiff's article to him. Plaintiff then represented to defendants and to the Copyright Office that he had received such an assignment. However, the Copyright Office viewed his article as a contribution to a periodical and returned the assignment document because it was unnecessary. Defendants now contend that the assignment and the representations made to them constitute a ratification and confirmation of the validity of the Record's copyright in the article.

However, under § 201(c) the assignment from the Record to Quinto had no legal effect because the Record at no time owned the copyright to Quinto's article and thus it had no rights to assign. Plaintiff's article was a contribution to a collective work, and as such, he owned the copyright to it from the moment it was fixed in tangible form.

Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

17 U.S.C. § 201(c) (emphasis added).

There was no express transfer of copyright from Quinto to the Record, so the Record had no rights in the article except those pertaining to the collective work. It is immaterial that plaintiff did not record the assignment from the Record to him, since plaintiff's claim to the copyright was by virtue of authorship and not by virtue of transfer. Therefore, defendants' motion to dismiss for lack of subject matter jurisdiction is denied.

Defenses

The defendants first claim that the plaintiff is not the copyright proprietor of the...