Van Dusen v. Southeast First Nat. Bank of Miami

Decision Date29 October 1985
Docket NumberNo. 84-1246,84-1246
Citation10 Fla. L. Weekly 2456,478 So.2d 82
Parties, 1985 Copr.L.Dec. P 25,853, 10 Fla. L. Weekly 2456 Katherine L. VAN DUSEN, Michael E. Van Dusen, and G. William Van Dusen, lawful heirs of the Estate of William Van Dusen, deceased, Appellants, v. SOUTHEAST FIRST NATIONAL BANK OF MIAMI, Eastern Airlines, Inc., Robert J. Serling, and Doubleday Corporation, d/b/a Dial Press, Appellees.
CourtFlorida District Court of Appeals

Stern & Kneski and Peter Kneski, Miami, for appellants.

Steel, Hector, Davis, Burns & Middleton and Thomas M. Karr, Mary Kogut-Equels, Miami, Fleming, O'Bryan & Fleming and Robert D. McIntosh and Deborah C. Poore, Fort Lauderdale, for appellees.



Plaintiffs Katherine L., Michael E., and G. William Van Dusen [collectively the Van Dusens], the lawful heirs of the estate of William Van Dusen, deceased, brought this action against defendants Southeast First National Bank of Miami [Southeast Bank], Eastern Airlines, Inc. [Eastern], Robert J. Serling, and Doubleday Corporation, d/b/a Dial Press [Doubleday]. The Van Dusens alleged that the defendants infringed a common law copyright in the contents of a manuscript written by the deceased and that Southeast Bank breached a fiduciary duty as personal representative of the estate. The Van Dusens appeal from final summary judgments entered in favor of the defendants. For the reasons which follow, we vacate in part and reverse in part.


The late William Van Dusen began gathering information for an aviation history while working at Pan American Airways in 1927; he subsequently went to work for Eastern. On January 1, 1953, Eastern and Van Dusen entered into a retirement agreement which provided that Van Dusen would retire from Eastern in 1961 and, then, for the next ten years, serve as an advisor or consultant to Eastern and receive $7,500 per year. The agreement was amended on September 30, 1966, to provide that September 30, 1966, would be deemed the retirement date and that Van Dusen would be retained "[a]s an independent contractor, and not as an employee, ... until the end of March, 1968 to prepare a history of Eastern Air Lines, Inc., under the general supervision of Mr. Dwight D. Taylor, Vice President of Eastern or any person designated by him." In consideration for Van Dusen's "diligent performance of said historical project," Van Dusen was to be paid a fee of "$1,750 for each month in which he so perform[ed] work on such project up to a maximum of eighteen months." A second amendment to the agreement, dated March 29, 1968, extended the period of Van Dusen's services until the end of March, 1969, under the same terms.

On March 31, 1969, Van Dusen wrote to Robert E. Montgomery of Eastern. 1 Van Dusen explained that, despite a heavy work regime, he had not gotten beyond midpoint on the project, and that neither he nor Floyd D. Hall of Eastern wanted to ask for an extension beyond the March 31 cut-off date. He added that he had consulted a "publisher's counsel" who told him that "we [Van Dusen and Eastern] had a 'great' and 'important' book in the making and [that] the time involved was not unreasonable for such a job." Van Dusen reported that he had moved out of his office and into quarters in Connecticut and intended to "hole in and finish the job." Van Dusen stated:

I've scaled my budget for outside help (stenographic) to about $500 a month. I would like to keep using an Eastern typewriter and a Uher tape recorder. And, if it seems advisable when I get to that stage, I'd like to use the office Xerox for a set of reading copies.

On April 16, 1969, Montgomery responded to Van Dusen's letter of March 31. Montgomery indicated that Eastern agreed to the continued use of the Eastern typewriter and tape recorder and, in addition, would pay for stenographic help for one year at a cost not to exceed $500 per month and, further, that Taylor or another would continue to generally supervise the work. Montgomery indicated that Eastern's agreement was based on the assumption that "the work product is the property of Eastern" and that, in the event of termination of work, "the portion completed thus far would promptly be turned over to [Eastern]." The letter concluded: "If the above correctly summarizes this matter I would appreciate it if you would sign and return to me one copy of this letter." Van Dusen, apparently, never signed the agreement.

In December, 1971, William R. Howard of Eastern wrote Van Dusen, inquiring as to "the status of the book you [Van Dusen] were doing for Eastern." 2 Van Dusen, then living in Miami, responded that he had finished the working drafts of the first three "books" (The Groping Years--1920's, The Foundling Years 1928-38, and The Formative (Growing) Years 1938-46) and had three more to do. As of March, 1972, Van Dusen remained in possession of the Eastern typewriter and equipment. There is no evidence in the record that would indicate that Eastern paid for any stenographic services after March 31, 1969.

Van Dusen died on March 2, 1976, and, on March 24, 1976, Southeast Bank was appointed personal representative of his estate. Katherine L. Van Dusen, Van Dusen's widow, instructed Southeast Bank to give the manuscript, titled "Only for the Young and Valiant" and subtitled "A Profile of an Airline," to Floyd Hall to see if Eastern was interested in it and, in the event Eastern was not interested in the manuscript, to return it to the family for publication and/or donation to the University of Wyoming's Transportation History Foundation Library. 3

After receiving her elective share, Katherine executed a "Receipt of Beneficiary and Consent to Discharge" on May 11, 1977, acknowledging the receipt of a complete distribution of the share of estate to which she was entitled and consenting to the discharge of Southeast Bank as personal representative. In the fall of 1978, the Van Dusens retained an attorney to obtain all copies of the manuscript which remained in the possession of Eastern or any other person. All copies were returned by October, 1978. On January 4, 1979, Southeast Bank filed a petition for discharge with an attached plan of distribution. The petition indicated, in accordance with section 733.901(1)(e), Florida Statutes (1977), that interested persons had thirty days in which to file objections to the report of receipts disbursements or the proposed distribution of assets. Southeast Bank sent copies of the petition to each of the Van Dusens. No objections were filed. Michael and G. William acknowledged the receipt of their respective shares of the estate and consented to Southeast Bank's discharge in early March, 1979. After filing a report of distribution which indicated that all assets of the estate had been distributed and claims paid, Southeast Bank was discharged on April 18, 1979.

On January 13, 1983, the Van Dusens filed the instant suit. 4 In their Amended Complaint, the Van Dusens alleged that Southeast Bank delivered the manuscript outside the scope of instructions given by Katherine L. Van Dusen, that Southeast Bank and Eastern failed to return the manuscript, that, as a result, the Van Dusens retained counsel to effectuate its return, that the manuscript was eventually returned on October 13, 1978, but that, with the knowledge and consent of Southeast Bank and without the knowledge and consent of the Van Dusens, Eastern delivered the manuscript or a copy thereof to Serling sometime between August, 1976, and January, 1980, for Serling to use as part of his "original" book, and that, on or about January 1, 1980, Doubleday published Serling's book titled "From the Captain to the Colonel" and subtitled "An Informal History of Eastern Airlines," which embodies and uses substantial portions of the manuscript authored by Van Dusen.

In Count I of the Amended Complaint, the Van Dusens alleged that the defendants infringed the common law copyright in the contents of the manuscript and sought, inter alia, an injunction to prevent the defendants from further infringing the common law copyright of the plaintiffs, an award of damages, and an accounting for profits derived from the alleged infringement. In Count II, the Van Dusens alleged that Southeast Bank had breached its fiduciary duty to the estate and the lawful heirs (1) by not protecting the rights of same by obtaining either a statutory copyright of said manuscript pursuant to title 17, United States Code, or, prior to delivery of the manuscript to Eastern, a contract which would have resulted in the protection of the common law copyright, and (2) by permitting and authorizing the publication of Serling's book. The Van Dusens sought compensatory and punitive damages against Southeast Bank under this count.

The trial court entered final summary judgments as to Serling, Doubleday, and Eastern on the ground that Eastern owned the Van Dusen manuscript under the works-for-hire doctrine. 5 Final summary judgment was entered in favor of Southeast Bank on the grounds that (1) its discharge as personal representative of the estate bars the suit, (2) the applicable statute of limitation bars the action, (3) Southeast Bank owned the common law copyright (defense to Count I only), and (4) Eastern owned the manuscript under the works-for-hire doctrine.


We vacate the summary judgments on Count I and remand with directions to dismiss this count based upon our conclusion that the Van Dusens' cause of action for common law copyright infringement has been pre-empted by the Federal Copyright Act of 1976, 17 U.S.C. § 101 et seq. [1976 Act], and that such cause of action is cognizable only in the Federal courts. 6

Prior to January 1, 1978, the effective date of the 1976 Act, there existed a dual system of copyright protection whereby unpublished works enjoyed copyright protection under state common (or statutory) law...

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