Case 1:16-cv-08706-JPO Document 36 Filed 12/05/17 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`PASTIME LLC et al.,
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`-v-
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`LEE SCHREIBER,
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`Plaintiffs,
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`Defendant.
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`16-CV-8706 (JPO)
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`OPINION AND ORDER
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`J. PAUL OETKEN, District Judge:
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`At the center of this case is a play, titled “Once Upon a Pastime,” which its creators hope
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`to mount as a successful stage production. But before that can happen, the characters in this case
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`have to resolve their own drama: Who owns the rights to the play? Defendant Lee Schreiber
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`holds a registration from the U.S. Copyright Office listing him as the play’s sole author, but
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`Plaintiffs Pastime LLC, Dennis M. Mnogue (personally known as Terry Cashman), PKM Music,
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`and Metrostar Music (collectively, “Pastime”) claim that Schreiber’s employment contract
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`divested him of any copyright in the work. Instead, Pastime claims that the play’s owners
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`transferred their copyrights to Pastime, making Pastime the lawful owner of “Once Upon a
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`Pastime.”
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`In this action, Pastime asks this Court to declare it the play’s rightful owner and to nullify
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`Schreiber’s registration. Schreiber has moved to dismiss Pastime’s Complaint for failure to state
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`a claim upon which relief can be granted. For the reasons that follow, Schreiber’s motion is
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`granted in part and denied in part.
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`I.
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`Background
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`The following facts are taken from the Complaint and attached exhibits, and are
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`presumed true for purposes of deciding Schreiber’s motion to dismiss.
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`1
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`Case 1:16-cv-08706-JPO Document 36 Filed 12/05/17 Page 2 of 12
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`Over a decade ago, Warren Baker and Sally Jacobs-Baker (“the Bakers”) set out to
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`produce a musical titled “Passin’ It On.” (Dkt. No. 1 (“Compl.”) ¶ 8; Dkt. No. 1-1.) The Bakers
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`acquired rights to the play from PKM Music and Terry Cashman, who had written the music, and
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`commissioned author Larry Atlas to write the book for the project. (Compl. ¶ 8.) After a few
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`underwhelming first-run performances of “Passin’ It On,” the Bakers hired Schreiber and
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`Cashman to rewrite Atlas’s book under a new title, “Once Upon a Pastime.” (Compl. ¶¶ 9, 12.)
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`But the Bakers were dissatisfied with the rewrite and decided to withdraw as producers.
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`(Compl. ¶¶ 12, 14.) Not wanting to abandon the project, Cashman, PKM Music, and Metrostar
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`Music entered into a deal with the Bakers, which resulted in the Bakers’ transferring their rights
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`in the musical to Cashman and PKM Music. (Compl. ¶ 14‒15.) Cashman, PKM Music, and
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`Metrostar Music subsequently transferred their rights to Pastime LLC. (Compl. ¶ 15.)
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`Still looking to attract investors and producers, PKM Music and Metrostar Music began
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`presenting readings of the musical. The first two readings occurred at the York Theater in New
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`York City. (Compl. ¶ 16.) Schreiber made some revisions between the first and second
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`readings, but the musical received no offers. (Id.) Although Schreiber requested the opportunity
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`to make further revisions, Cashman decided instead to contract with a more experienced author,
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`James Glossman. (Compl. ¶¶ 17‒18.) The second set of readings, now of the Glossman-
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`Cashman vintage, were held at Montclair State University. (Compl. ¶ 18.) No offers were made,
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`and more revisions followed. (Id.) Finally, a third attempt at a New York City rehearsal hall
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`generated some interest, and producer Armand Paganelli undertook a production of the musical
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`for five performances at the White Plains Performing Arts Center. (Compl. ¶ 19.)
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`This is where the Pastime’s budding success story hit a snag: In May 2016, Schreiber
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`confronted Paganelli at the White Plains Performing Arts Center and orally threatened to sue him
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`2
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`Case 1:16-cv-08706-JPO Document 36 Filed 12/05/17 Page 3 of 12
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`for infringing Schreiber’s rights in the musical. (Id.) As a result, Paganelli has not made any
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`further plans to produce the musical, and he plans to defer decision on further productions until
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`Schreiber’s claims are resolved. (Id.)
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`Schreiber and Pastime have competing claims to authorship—and ownership—of the
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`musical. On the one hand, Schreiber holds a registration from the U.S. Copyright Office that
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`lists him as the sole author of “Once Upon a Pastime.” (Compl. ¶ 20.) On the other hand,
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`Pastime points to Schreiber’s original employment agreement with the Bakers, which states:
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`You acknowledge and agree . . . that the Book . . . was specifically
`commissioned by [the Bakers] and shall be considered for copyright
`. . . purposes a “contribution to a collective work” and a “work for
`hire” for [the Bakers] . . . . [The Bakers] are, therefore the owner[s]
`of all rights in and to the Book and all copyrights therein . . . .
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`(Dkt. No. 1-1 ¶ 6; see also Compl. ¶¶ 10‒12.) Pastime argues that, in light of Schreiber’s
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`employment agreement, “Schreiber intentionally falsified the writing and ownership information
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`in his copyright registration application.” (Compl. ¶ 21.)
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`Pastime filed this action for a declaratory judgment to resolve the competing claims to
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`“Once Upon a Pastime.”1 In response, Schreiber argues that Pastime has not asked for any relief
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`that this Court has the capacity to grant. Schreiber moves to dismiss the Complaint for failure to
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`state a claim upon which can be granted under Federal Rule of Civil Procedure 12(b)(6). (Dkt.
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`No. 25). Where appropriate, this Court also considers Schreiber’s motion as a motion to dismiss
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`for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
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`1
`As a technical matter, the play “Once Upon a Pastime” is protected by a bundle of
`copyrights in various creative elements such as the script, music, and choreography. Only the
`linguistic elements of the play—that is, the lyrics, screenplay, and script—are at issue in this
`case. However, for purposes of resolving the instant motion, the Court will sacrifice precision
`for readability and refer to the rights in dispute as rights to “Once Upon a Pastime,” “the play,”
`or “the musical.”
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`3
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`Case 1:16-cv-08706-JPO Document 36 Filed 12/05/17 Page 4 of 12
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`II.
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`Legal Standard
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`“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the
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`claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
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`what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550
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`U.S. 544, 555 (2007) (first quoting Fed. R. Civ. P. 8(a)(2), then quoting Conley v. Gibson, 355
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`U.S. 41, 47 (1957)). “To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must
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`contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’”
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). When
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`considering a motion to dismiss under Rule 12(b)(6), courts “must accept as true all of the
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`factual allegations contained in the complaint,” Twombly, 550 U.S. at 572 (quoting Swierkiewicz
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`v. Sorema N. A., 534 U.S. 506, 508 n.1 (2002)), and must draw “all inferences in the light most
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`favorable to the non-moving party[],” In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.
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`2007) (Sotomayor, J.).
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`Because federal courts are courts of limited subject matter jurisdiction, “[a] case is
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`properly dismissed for lack of subject matter jurisdiction . . . when the district court lacks the
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`statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113
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`(2d Cir. 2000). “[T]he plaintiff bears the burden to prove subject-matter jurisdiction by a
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`preponderance of the evidence.” Morrow v. Ann Inc., No. 16 Civ. 3340, 2017 WL 363001, at *2
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`(S.D.N.Y. Jan. 24, 2017). “When considering a motion to dismiss for lack of subject matter
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`jurisdiction . . . , a court must accept as true all material factual allegations in the complaint . . .
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`[b]ut . . . jurisdiction must be shown affirmatively, and that showing is not made by drawing
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`from the pleadings inferences favorable to the party asserting it.” Shipping Fin. Servs. Corp. v.
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`Drakos, 140 F.3d 129, 131 (2d Cir. 1998).
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`4
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`Case 1:16-cv-08706-JPO Document 36 Filed 12/05/17 Page 5 of 12
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`III. Discussion
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`This case is about who owns the rights to “Once Upon a Pastime,” but Schreiber’s motion
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`to dismiss presents a play-within-a-play (about a play). Specifically, the parties have thus far
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`concerned themselves with litigating how to characterize their dispute. Schreiber characterizes
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`the Complaint as asserting a claim for fraud on the U.S. Copyright Office and then argues that
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`“there is no affirmative private right of action” for such fraud. (Dkt. No. 27 at 2.) Pastime, in
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`response, argues that its Complaint states a claim “for a declaration of the parties’ respective
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`ownership rights in [the musical], and for cancellation of [Schreiber’s] copyright registration.”
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`(Dkt. No. 30 at 6.)
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`Pastime’s Complaint raises two distinct issues: (1) the validity of Schreiber’s
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`registration; and (2) rightful ownership of the copyright. Although “copyright” and
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`“registration” are sometimes treated as synonyms in common parlance, it is important to
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`distinguish these two legal concepts. A copyright “exists automatically upon the creation and
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`fixation of an original work of authorship in a tangible medium of expression.” Chere Amie, Inc.
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`v. Windstar Apparel, Corp., 191 F. Supp. 2d 343, 350 (S.D.N.Y. 2001); see also 17 U.S.C.
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`§ 102(a) (“Copyright protection subsists . . . in original works of authorship fixed in any tangible
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`medium of expression . . . from which they can be perceived, reproduced, or otherwise
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`communicated . . . .”). A registration, in contrast, is granted by the Copyright Office, and the
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`Copyright Act conditions certain statutory benefits—most notably, the right to sue for
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`infringement—on registration. See Chere Amie, 191 F. Supp. 2d at 350. In other words,
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`copyrights exist by virtue of the author’s creation, while copyright registrations exist by grant of
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`the Copyright Office.
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`5
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`Case 1:16-cv-08706-JPO Document 36 Filed 12/05/17 Page 6 of 12
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`Having clarified this distinction, the Court divides Pastime’s potential causes of action
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`into two categories: registration-related and ownership-related requests for relief. The Court
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`addresses each in turn.
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`A.
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`Registration-Related Requests for Relief
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`Pastime’s Complaint is not a model of clarity when it comes to articulating its purported
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`causes of action or requests for relief. But at least one of Pastime’s requests is unambiguously
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`clear: Pastime asks the Court to grant “Cancellation and Nullification of Copyright Registration
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`#Pau00373988”—Schreiber’s registration number. (Compl. at 9). This the Court cannot do.
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`Nothing in the Copyright Act, nor any other federal statute, grants federal courts the
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`power to cancel or nullify a copyright registration. As the Third Circuit explained in Brownstein
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`v. Lindsay, “there is evidence that the statute does not give courts any such authority” because
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`“[s]ection 701, which describes the functions of the Copyright Office, explicitly states that ‘[a]ll
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`administrative functions and duties under this title, except as otherwise specified, are the
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`responsibility of the Register of Copyrights.’” 742 F.3d 55, 75 (3d Cir. 2014) (alterations in
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`original) (quoting 17 U.S.C. § 701(a)). Furthermore, it is significant that a separate section of
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`the Copyright Act does grant federal courts the authority to cancel registrations for “original
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`designs.” See id. at 76; 17 U.S.C. § 1324. This Court joins the Brownstein court’s conclusion
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`that Ҥ 1324 would be superfluous if Congress intended for courts to already have the general
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`authority to cancel copyright registrations,” and that “[i]n carving out a specific power of
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`cancellation, this provision only further suggests that courts have no general authority to cancel
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`copyright registrations.” Brownstein, 742 F.3d at 76. In short, “no private cause of action exists
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`to cancel a registration.”2 5 Patry on Copyright § 17:108.
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`2
`Pastime also asks this Court to direct the U.S. Copyright Office to register
`Pastime’s competing registration application. (See Compl. ¶ 35(J).) “All actions of the
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`6
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`Case 1:16-cv-08706-JPO Document 36 Filed 12/05/17 Page 7 of 12
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`Schreiber interprets the Complaint differently, arguing that the Complaint “assert[s] a
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`claim for fraud on the U.S. Copyright Office.” (Dkt. No. 27 at 4.) Pastime, however,
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`unambiguously disclaims Schreiber’s interpretation. (See Dkt. No. 30 at 6 (“[T]he Complaint
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`does not assert a claim for ‘fraud on the U.S. Copyright Office.’”).) As a result, the Court finds
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`it unnecessary to opine at length on the existence of a cause of action that Pastime has explicitly
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`waived.3 The Court notes, however, that the absence of a cause of action for fraud on the
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`Copyright Office comports with the absence of a cause of action for cancellation of a copyright
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`registration. See Vaad L’Hafotzas Sichos, Inc. v. Krinsky, 133 F. Supp. 3d 527, 537 (E.D.N.Y.
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`2015) (rejecting a party’s request for “affirmative relief in the form of cancellation of the
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`registration . . . [because] ‘there is no precedent supporting the use of a claim for fraud on the
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`Copyright Office as an affirmative cause of action’” (quoting Kwan v. Schlein, 2008 WL
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`4755345, *2 (S.D.N.Y. Oct. 30, 2008))).
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`Consequently, the Court grants Schreiber’s motion to dismiss Pastime’s claims for
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`nullification and cancellation of Schreiber’s copyright registration. By dismissing Pastime’s
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`Complaint insofar as it seeks cancellation of Schreiber’s registration, however, the Court does
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`not imply that the validity of Schreiber’s registration is beyond question. Indeed, future
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`Copyright Office are subject to the Administrative Procedure Act (‘APA’) and the judicial
`review attendant to the APA,” and consequently “aggrieved parties may challenge an
`unfavorable decision by the Copyright Office . . . by challenging its decision in court under the
`APA.” Brownstein, 742 F.3d at 76. However, Pastime’s current Complaint—even if liberally
`construed—does not plead an action under the APA, so the Court dismisses any claim requesting
`that that the Court direct the Copyright Office to grant Pastime’s registration application.
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`3
`In any event, the Court concludes that the better reading is Pastime’s: The
`Complaint asserts a cause of action “for a declaration of the parties’ respective ownership rights
`in the subject literary work, and for cancellation of Defendant’s copyright registration.” (Dkt.
`No. 30 at 6.)
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`7
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`Case 1:16-cv-08706-JPO Document 36 Filed 12/05/17 Page 8 of 12
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`litigation may demonstrate that Schreiber’s registration is invalid. As the Third Circuit observed
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`in Brownstein:
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`[C]ourts are authorized to police copyright registrations through
`authorship claims and infringement claims. . . . [W]e are in no way
`holding that courts are incapable of invalidating underlying
`copyrights. . . . Holding that federal courts have the authority to
`cancel registrations would essentially be declaring that the judicial
`branch has the authority to order a legislative branch agency that is
`not a party to the litigation to take an affirmative action. A federal
`court’s finding that a copyright is invalid, on the other hand, is a
`determination of ownership which does not disturb the registration
`of a copyright.
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`742 F.3d at 76–77.
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`B.
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`Ownership-Related Requests for Relief
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`Although Pastime cannot state a claim upon which relief can be granted with respect to
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`Schreiber’s registration, the Court concludes that Pastime has stated a cognizable claim for a
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`declaratory judgment as to ownership rights in “Once Upon a Pastime.”
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`As a prerequisite, the Court must first satisfy itself that such a claim appears in the
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`Complaint. The Court concludes that the Complaint, although not as explicit as it could be,
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`contains sufficient information to state a claim “for a declaration of the parties’ respective
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`ownership rights.” (Dkt. No. 30 at 6.) The “Cause of Action” section of the Complaint states
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`that: (1) “Schreiber’s claim to own the copyright in and to the [musical], and to being its sole
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`writer, is intentionally fraudulent . . . and in violation of the . . . Copyright Act”; (2) “Pastime
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`LLC is the sole owner of the copyrights in the Musical”; and (3) “[a] Declaratory Judgment . . .
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`would serve a useful purpose in clarifying and settling the respective rights and obligations of the
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`parties.” (Compl. ¶¶ 26, 31‒32.) Furthermore, the Complaint’s “Prayer for Relief” section
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`requests an order declaring that: (1) “Pastime . . . is the rightful and sole owner of the copyright
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`in and to the [musical]”; (2) “Schreiber has no copyright interest . . . in or to the Musical”; (3)
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`“Schreiber’s writing services were rendered as an employee for hire so that . . . the book is a
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`work for hire and is owned by Pastime LLC”; and (4) “Schreiber is not the sole author of the
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`[musical].” (Compl. ¶ 35.) Taken together, these statements are more than sufficient to meet
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`Rule 8(a)(2)’s requirement that the Complaint include a “short and plain statement of the claim
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`showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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`The Court must next determine if there is federal subject matter jurisdiction over an
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`action to define ownership rights in “Once Upon a Pastime.” Because Pastime does not allege
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`diversity jurisdiction under 28 U.S.C. § 1332, this Court has subject matter jurisdiction only if
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`this action “aris[es] under” federal copyright law. See 28 U.S.C. § 1338.4 Judge Friendly
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`announced the Second Circuit’s test for arising-under-copyright jurisdiction in T. B. Harms Co.
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`v. Eliscu:
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`[A]n 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.
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`339 F.2d 823, 828 (2d Cir. 1964); see also Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343,
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`355 (2d Cir. 2000) (reaffirming that “this circuit’s standard for determining jurisdiction under
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`Section 1338 is furnished by T.B. Harms”). As the Second Circuit articulated more recently in
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`Briarpatch Ltd., L.P v. Phoenix Pictures, Inc., “[f]or an action to arise under [the Copyright Act],
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`the plaintiff’s well-pleaded complaint must establish either that the act creates the cause of action
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`4
`Usually, arising-under federal jurisdiction is defined by 28 U.S.C. § 1331;
`however, 28 U.S.C. § 1338(a) creates a more specific (and exclusive) grant of original
`jurisdiction to federal district courts over “any civil action arising under any Act of Congress
`relating to patents, plant variety protection, copyrights and trademarks.”
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`Case 1:16-cv-08706-JPO Document 36 Filed 12/05/17 Page 10 of 12
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`or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of
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`law under the act.” 373 F.3d 296, 303–04 (2d Cir. 2004).
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`This case falls within the second T. B. Harms category because the Complaint asserts a
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`claim that will require construction of the Copyright Act. Specifically, the Copyright Act
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`dictates that “[i]n the case of a work made for hire, the employer or other person for whom the
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`work was prepared is considered the author . . . and . . . owns all of the rights comprised in the
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`copyright.” 17 U.S.C. § 201(b). Section 101 of the Copyright Act then defines a “work made
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`for hire” as “a work prepared by an employee within the scope of his or her employment” or “a
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`work specially ordered or commissioned for use as a contribution to a collective work.” 17
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`U.S.C. § 101.
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`Pastime alleges that Schreiber cannot claim any ownership rights in the musical
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`because—per his employment agreement—his contribution was a work for hire. (See Compl.
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`¶¶ 10‒12.) Whether Schreiber can claim any ownership in “Once Upon a Pastime” turns on this
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`Court’s interpretation and application of the Copyright Act’s “works made for hire” provision.
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`Consequently, Pastime has sufficiently alleged federal-question jurisdiction to survive a motion
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`to dismiss under T.B. Harms. Accord Merchant v. Levy, 92 F.3d 51, 56 (2d Cir. 1996) (holding
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`that a case required construction of the Copyright Act where “[d]efendants offer[ed] a number of
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`arguments as to why Plaintiffs’ contribution to [a] song [was] legally insufficient to make them
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`joint authors . . . , and why [a record-company owner’s] contribution sufficed to make him a joint
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`author (for example, based on the ‘work for hire’ doctrine)” (citations omitted)); RX Data Corp.
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`v. Dep’t of Soc. Servs., 684 F.2d 192, 196 n.1 (2d Cir. 1982) (explaining that “[w]hether [the
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`defendant] has title to the copyrights because they are found to be ‘works made for hire’ under
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`17 U.S.C. §§ 101, 201(b) (Supp. IV 1980) would be a question of federal law requiring an
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`Case 1:16-cv-08706-JPO Document 36 Filed 12/05/17 Page 11 of 12
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`interpretation of the Copyright Act”); see also Cohen v. Versatile Studios, Inc., No. 13 Civ.
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`08280, 2014 WL 1584055, at *2 (S.D.N.Y. Apr. 21, 2014) (“[A] dispute that turns on whether a
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`copyrighted work was created independently or as a ‘work made for hire’ is an ownership
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`dispute that unquestionably arises under the Copyright Act.” (quoting Scandinavian Satellite
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`Sys., AS v. Prime TV Ltd., 291 F.3d 839, 845 (D.C. Cir. 2002)) (internal quotation marks
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`omitted)).5
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`Finally, the Court concludes that Pastime’s Complaint presents “a case of actual
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`controversy” for which the Court “may declare the rights and other legal relations” of the parties
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`pursuant to the Declaratory Judgment Act (“DJA”).6 28 U.S.C. § 2201. Plaintiff has shown that
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`“there is a substantial controversy, between parties having adverse legal interests, of sufficient
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`immediacy and reality to warrant the issuance of a declaratory judgment.” MedImmune, Inc. v.
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`Genentech, Inc., 549 U.S. 118, 127 (2007) (quoting Maryland Casualty Co. v. Pacific Coal &
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`Oil Co., 312 U.S. 270, 273 (1941)). Schreiber and Pastime have a definite and substantial
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`dispute over ownership rights in “Once Upon a Pastime,” and Schreiber’s claims to ownership
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`and threat to sue for infringement give immediacy and concreteness to the controversy between
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`the parties. See Nike, Inc. v. Already, LLC, 663 F.3d 89, 96 (2d Cir. 2011), aff’d, 568 U.S. 85
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`(2013) (“[T]he threat of future litigation remains relevant in determining whether an actual
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`5
`Schreiber cites Simon & Flynn, Inc. v. Time Inc. for the proposition that “an
`aroma of copyright” does not suffice to establish arising-under jurisdiction. 513 F.2d 832, 833
`(2d Cir. 1975). But Schreiber’s reliance on Simon & Flynn is misplaced because that case did
`not concern a work for hire. The Court also observes that the Second Circuit decided Simon &
`Flynn before the Copyright Act of 1976, which represented a “comprehensive revision” to the
`previous Copyright Act of 1909, and, consequently, substantially changed the situations that may
`require judicial construction of the Act. 1 Nimmer on Copyright intro.
`6
`While the DJA makes the remedy of a declaratory judgment available in federal
`court, it does not create a stand-alone basis for federal jurisdiction. See Skelly Oil Co. v. Phillips
`Petroleum Co., 339 U.S. 667, 671 (1950).
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`Case 1:16-cv-08706-JPO Document 36 Filed 12/05/17 Page 12 of 12
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`controversy exists.”). The Court further concludes that all five of the Second Circuit’s Dow
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`Jones factors weigh in favor of entertaining this action for declaratory judgment; in particular,
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`the Court concludes that a declaratory judgment as to the parties’ ownership rights “will serve a
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`useful purpose in clarifying or settling the legal issues involved” and “would finalize the
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`controversy and offer relief from uncertainty.” The New York Times Co. v. Gonzales, 459 F.3d
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`160, 167 (2d Cir. 2006) (quoting Dow Jones & Co., Inc. v. Harrods Ltd., 346 F.3d 357, 359‒60
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`(2d Cir. 2003)).
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`Consequently, the Court denies Schreiber’s motion to dismiss Pastime’s claim for a
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`declaration of the parties’ respective ownership rights in the musical.
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`C.
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`Leave to Amend
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`Pastime requests that “any dismissal or partial dismissal be without prejudice to the
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`submission of an Amended Complaint” that would add an affirmative claim of infringement.
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`(Dkt. No. 30 at 9.) Because Pastime’s Complaint survives Schreiber’s motion to dismiss in part,
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`the Court makes no decision as to the propriety of an amended complaint at this time. If it so
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`chooses, Pastime is free to move for leave to amend.
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`IV. Conclusion
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`For the foregoing reasons, Schreiber’s motion to dismiss is GRANTED in part and
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`DENIED in part. Pastime’s motion to expedite decision is DENIED as moot. Schreiber shall
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`file an answer to the Complaint by December 19, 2017.
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`The Clerk of Court is directed to close the motions at Docket Numbers 25 and 35.
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`SO ORDERED.
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`Dated: December 5, 2017
`New York, New York
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`12
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