ALEXANDER LINDSAY, Plaintiff, -against- The Wrecked and
Abandoned Vessel R.M.S. TITANIC, HER ENGINES, TACKLE,
EQUIPMENT, FURNISHINGS, Located Within One Nautical Mile of
a Point Located at 41 [degrees], 43'32" North Latitude and
49 [degrees], 56'49" West, and ARTIFACTS, and VIDEO Located
at 17 Battery Place, New York, NY, in rem, and R.M.S.
TITANIC, INC., TITANIC VENTURES LIMITED PARTNERSHIP, OCEANIC
RESEARCH AND EXPLORATION LIMITED, SUAREZ CORPORATION
INDUSTRIES, INC., and DISCOVERY COMMUNICATIONS, INC., d.b.a.
THE DISCOVERY CHANNEL, in personam, Defendants. n1
n1 Prior to the issuance of this opinion, the plaintiff
dismissed from the case defendant Ben Suarez, in his
individual capacity as president of Suarez Corporation,
Inc., pursuant to Rule 41(a)(1) of the Fed. R. Civ. P.
97 Civ. 9248 (HB)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK
1999 U.S. Dist. LEXIS 15837; 52 U.S.P.Q.2D (BNA) 1609;
Copy. L. Rep. (CCH) P27,967
October 12, 1999, Decided
October 13, 1999, Filed
OPINION & ORDER
HAROLD BAER, JR., District Judge:
The plaintiff, Alexander Lindsay, commenced this lawsuit in 1997, [*2]
seeking damages based upon his share of the revenues generated by the salvage
operations conducted at the wreck site of the famous sunken vessel, the R.M.S.
Titanic. Defendants R.M.S. Titanic, Inc. ("RMST") and Suarez Corporation Inc. (
"SCI") answered and asserted counterclaims against the plaintiff for copyright
infringement. The plaintiffs' amended complaint joined defendant Discovery
Communications, Inc. ("DCI") and added claims of copyright infringement against
RMST, SCI and DCI. Pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the defendants now move to dismiss the plaintiff's copyright claims
alleged in the amended complaint. n2 The plaintiff cross-moves for summary
judgment as to both his salvage and copyright claims. For the reasons discussed
below, the defendants' motions are DENIED in part and GRANTED in part, and the
Court reserves decision on the plaintiff's motion.
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n2 Although the Court has reviewed the voluminous supplementary submissions
provided with and after the filing of these motions, I am excluding this virtual
sea of materials and decline to convert the defendants' motions to dismiss to
motions for summary judgment. Accordingly, I base my ruling on these motions
solely on the pleadings. See Amaker v. Weiner, 179 F.3d 48, 51-52 (2d Cir. 1999)
(finding that the inclusion of affidavits or exhibits with a motion to dismiss
does not require conversion to a motion for summary judgment provided the court
does not rely on such submissions in deciding the motion to dismiss). In any
event, a cursory review of the documents submitted with these motions reveals
that the factual waters of this case are sufficiently muddied so as to warrant
denial of summary judgment at this juncture as well.
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I. BACKGROUND
The plaintiff, a citizen of the United Kingdom and resident of the State of
New York, is an independent documentary film maker engaged in the business of
creating, producing, directing, and filming documentaries. (Amended Complaint (
"Am. Compl.") P 4.) Defendant R.M.S. Titanic, Inc. ("RMST") is a publicly traded
U.S. corporation, organized under the laws of the State of Florida, which
conducts business within and has its office and principal place of business in
New York City. (Am. Compl. P 8.) Defendant George Tulloch ("Tulloch") is a
shareholder, president and member of the board of directors of RMST. (Am. Compl.
P 7.) Defendant Titanic Ventures Limited Partnership ("TVLP") is a limited
partnership organized under the laws of Connecticut and currently doing business
in the State of New York. n3 (Am. Compl. P 9.) Defendant Oceanic Research and
Exploration Limited ("OREL") is a Delaware corporation and general partner of
TVLP. Defendant Tulloch is also the president and sole shareholder of OREL
(defendants RMST, Tulloch, TVLP and OREL collectively as "RMST"). Defendant
Suarez Corporation, Inc. ("SCI") is an Ohio corporation doing business in the
State of New [*4] York. Defendant Discovery Communications, Inc. ("DCI") is a
Maryland corporation doing business as "The Discovery Channel", and is engaged
in the business of making, financing and distributing documentary films. (Am.
Compl. P 13.)
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n3 In May 1993, RMST acquired all the assets and assumed the liabilities of
TVLP, a limited partnership that was formed in 1987 for purposes of exploring
the Titanic wreck site. (Am. Compl. P 19.)
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In 1993, RMST was awarded exclusive status as salvor-in-possession of the
Titanic wreck site and is therefore authorized to carry on salvage operations at
the vessel's wreck site. (Am. Compl. PP 8, 20.) As a condition of obtaining
these rights, RMST allegedly agreed to maintain all the artifacts it recovered
during the salvage operations for historical verification, scientific education,
and public awareness. (Am. Compl. P 22.)
In 1994, the plaintiff, under contract with a British television company,
filmed and directed the British documentary film, "Explorers of the Titanic," a
chronicle [*5] of RMST's third salvage expedition of the Titanic. (Am. Compl. P
25.) To film this documentary, Lindsay sailed with RMST and the salvage
expedition crew to the wreck site and remained at sea for approximately one
month. (Am. Compl. P 27.) The plaintiff alleges that during and after filming
this documentary in 1994, he conceived a new film project for the Titanic wreck
using high illumination lighting equipment. (Am. Compl. P 28.)
The plaintiff later discussed his idea with defendant George Tulloch and,
according to the plaintiff, the two agreed to work together on the venture. (Am.
Compl. PP 29.) In March 1995, the plaintiff traveled to New York and developed a
comprehensive business plan for the new film project entitled, "Titanic: A
Memorial Tribute." (Am. Compl. P 30.) Tulloch allegedly informed the plaintiff
that he would agree to the plan -- which purported to include provisions for
compensating Lindsay for his work on the project -- but that Tulloch would have
to obtain approval from the RMST Board of Directors. (Am. Compl. P 31.) The
plaintiff agreed to join RMST to raise money not only for the film project, but
for other aspects of the 1996 salvage operation as well. (Am. [*6] Compl. P
32.)
Lindsay moved into an office at RMST in and around April 1995. Around this
time, Tulloch repeatedly told Lindsay that he would obtain approval from RMST's
Board of Directors for a contract for the plaintiff based upon the terms of
Lindsay's film plan. (Am. Compl. P 33.) The contract was to include terms of
Lindsay's compensation, including sharing in the profits derived from any film,
video and still photographs obtained from the 1996 salvage operation. (Am.
Compl. P 36.) This contract was never executed.
As part of his pre-production efforts, the plaintiff created various
storyboards for the film, a series of drawings which incorporated images of the
Titanic by identifying specific camera angles and shooting sequences "that
reflected Planitff's [sic] creative inspiration and force behind his concept for
shooting the Subject Work." (Am. Compl. P 38.) The plaintiff also alleges that
he, along with members of his film team, designed the huge underwater light
towers that were later used to make the film. (Am. Compl. P 43.) Lindsay also
"personally constructed the light towers" and thereafter "for approximately 3-4
weeks directed, produced, and acted as the cinematographer [*7] of the Subject
Work, underwater video taping of the Titanic wreck site, and otherwise
participated in the 1996 salvage operation." (Am. Compl. PP 45-46.) He also
directed the filming of the wreck site from on board the salvage vessel "Ocean
Voyager" after leading daily planning sessions with the crew of the Nautile, the
submarine used to transport the film equipment and photographers to the
underwater wreck site. (Am. Compl. P 47.) The purpose of these sessions was to
provide the photographers with "detailed instructions for positioning and
utilizing the light towers." (Id.)
The plaintiff now alleges that he was never fully compensated for his
services and that, inter alia, the defendants are now "unlawfully profiting from
the exploitation of the" film project at issue. (Am. Compl. PP 57-60.)
The plaintiff originally brought this action under the Court's admiralty
jurisdiction to enforce his salvage claims against defendants RMS Titanic, Inc.,
Titanic Ventures Limited Partners, Oceanic Research and Exploration Limited
(collectively as "RMST"), and Suarez Corporation.
These defendants moved to dismiss the plaintiff's salvage claims. By order
dated September 2, 1998, I denied [*8] the motion to dismiss, having found that
the plaintiff had met his burden of pleading all the necessary elements for
bringing a salvage claim. See Lindsay v. Titanic, 1998 U.S. Dist. LEXIS 13604,
No. 97 Civ. 9248, 1998 WL 557591 (S.D.N.Y. Sept. 2, 1998).
RMST and SCI then answered the complaint and included counterclaims for
copyright infringement arising from the plaintiff's use of certain video footage
taken from the wreck during the 1996 expedition. By order dated April 9, 1999, I
granted the plaintiffs motion to amend his complaint to add copyright
infringement claims against RMST and SCI and to join Discovery Communications,
Inc. ("DCI") d/b/a The Discovery Channel, for copyright infringement of what
appears to be the same footage at issue in the defendants' counterclaims.
The plaintiff's amended complaint now includes 13 causes of action, including
those based on copyright infringement, salvage claims, and state law causes of
action for fraud, breach of contract, and conversion. The defendants now move
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss
Lindsay's copyright claims, and the plaintiff cross-moves for summary judgment
on his copyright and salvage claims. [*9]
III. DISCUSSION
A. Standards for Motion to Dismiss
Dismissal of a complaint pursuant to Rule 12(b)(6) is permitted "only where
it appears beyond doubt that the plaintiff can prove no set of facts in support
of the claim which would entitle him to relief." Scotto v. Almenas, 143 F.3d
105, 109-10 (2d Cir. 1998). "The task of the court in ruling on a Rule 12(b)(6)
motion is 'merely to assess the legal feasibility of the complaint, not to assay
the weight of the evidence which might be offered in support thereof.'" Cooper
v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Ryder Energy Distribution
Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984)). In
deciding a 12(b)(6) motion, the Court must accept as true all material facts
alleged in the complaint and draw all reasonable inferences in the nonmovant's
favor. See Thomas v. City of New York, 143 F.3d 31, 36 (2d Cir. 1998).
B. Copyright Claims
1. Pleading Requirements
To withstand a motion to dismiss, a complaint based on copyright infringement
must allege: (1) which specific original works are the subject [*10] of the
copyright claim; (2) that the plaintiff owns the copyrights in those works; (3)
that the copyrights have been registered in accordance with the statute; and (4)
"by what acts during what time" the defendant infringed the copyright. Kelly v.
L.L. Cool J., 145 F.R.D. 32, 35 (1992), aff'd, 23 F.3d 398 (2d Cir.), cert.
denied, 513 U.S. 950, 130 L. Ed. 2d 318, 115 S. Ct. 365 (1994).
Although the complaint is not a model of clarity, it meets for the most part,
these standards. With regard to the first element, the complaint refers to the
plaintiffs copyright interest in the "Subject Work," and -- as the defendants
point out -- makes several different references to what exactly this work
constitutes. (See Am. Compl. PP 28, 76, 78.) n4 However, piecing together these
various allegations, and drawing all reasonable inferences in the plaintiff's
favor, it becomes clear for purposes of this motion that the "Subject Work"
consists of the illuminated underwater footage that was filmed utilizing the
large light towers that Lindsay helped design and construct. (See Am. Compl. P
46.) Regarding the second and third elements, the plaintiff [*11] alleges that
he owns these works, (Am. Compl. P 55), and that they were accepted and
registered with the U.S. Register of Copyrights. (Am. Compl. P 78.)
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n4 Lindsay defines the "Subject Work" as: "a new film project for the Titanic
wreck using high illumination lighting equipment" (Am. Compl. P 28); "the
documentary film Titanic: In a New Light" (Am. Compl. P 76); and "the
illuminated underwater video footage." (Am. Compl. P 78.)
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As to the fourth element -- how and when the defendants infringed the
copyright -- the plaintiff has satisfied his burden as to all the defendants
except SCI. With respect to RMST, the complaint alleges that RMST "unlawfully
entered into the exclusive license agreement with DCI," (Am. Compl. P 62),
"enered [sic] into contracts conveying video clips and still images . . . to
various Titanic artifacts exhibitions throughout the world," and "RMST displays
images from the Subject Work on its INTERNET web site." (Am. Compl. P 63.) The
complaint alleges that DCI incorporated portions [*12] of the illuminated
footage into three separate documentaries that aired on certain dates in 1997.
(Am. Compl. P 64.)
The plaintiffs' contentions against SCI, however, do not fare as well.
Lindsay alleges that SCI "used plaintiff's name and likeness" to promote a 1996
cruise expedition to observe the salvage operations. (Am. Compl. P 42.) In
addition, the amended complaint charges that "SCI did knowingly and willfully
infringe upon Plaintiff's copyright . . . by unlawfully purchasing and/or
otherwise obtaining copies of the Subject Work" and has and will "exploit and
profit from the Subject Work." (Am. Compl. P 73.) I find that these vague and
conclusory allegations are, as a matter of law, insufficient to withstand the
instant motion. Kelly, 145 F.R.D. at 36, n.3 ("Rule 8 requires that the
particular infringing acts be set out with some specificity. Broad, sweeping
allegations of infringement do not comply with Rule 8."). Accordingly, the
plaintiff's third cause of action as against SCI is hereby dismissed.
2. Authorship
The defendants first argue that the plaintiff cannot have any protectable
right in the illuminated footage since he did not dive to the ship [*13] and
thus did not himself actually photograph the wreckage. This argument, however,
does not hold water.
The Copyright Act of 1976 provides that copyright ownership "vests initially
in the author or authors of the work." 17 U.S.C. § 201(a). Generally speaking,
the author of a work is the person "who actually creates the work, that is, the
person who translates an idea into a fixed, tangible expression entitled to
copyright protection." Community for Creative Non-Violence v. Reid, 490 U.S.
730, 737, 104 L. Ed. 2d 811, 109 S. Ct. 2166 (1989) (citing 17 U.S.C. § 102). In
the context of film footage and photography, it makes intuitive sense that the
"author" of a work is the individual or individuals who took the pictures, i.e.
the photographer. However, the concept is broader than as argued by the
defendants.
For over 100 years, the Supreme Court has recognized that photographs may
receive copyright protection in "so far as they are representatives of original
intellectual conceptions of the author." Burrow-Giles Lithographic Co. v.
Sarony, 111 U.S. 53, 58, 28 L. Ed. 349, 4 S. Ct. 279 (1884). An individual [*14]
claiming to be an author for copyright purposes must show "the existence of
those facts of originality, of intellectual production, of thought, and
conception." Feist Publications, Inc. v. Rural Telephone Service Company, Inc.,
499 U.S. 340, 346-347, 113 L. Ed. 2d 358, 111 S. Ct. 1282 (1991) (citing
Burrow-Giles, 111 U.S. at 59-60). Some elements of originality in a photograph
includes "posing the subjects, lighting, angle, selection of film and camera,
evoking the desired expression, and almost any variant involved." Rogers v.
Koons, 960 F.2d 301, 307 (2d Cir.), cert. denied, 506 U.S. 934, 121 L. Ed. 2d
278, 113 S. Ct. 365 (1992). Taken as true, the plaintiff's allegations meet this
standard. Lindsay's alleged storyboards and the specific directions he provided
to the film crew regarding the use of the lightowers and the angles from which
to shoot the wreck all indicate that the final footage would indeed be the
product of Lindsay's "original intellectual conceptions."
The fact that Lindsay did not literally perform the filming, i.e. by diving
to the wreck and operating the cameras, will not defeat his claims of [*15]
having "authored" the illuminated footage. The plaintiff alleges that as part of
his pre-production efforts, he created so-called "storyboards," a series of
drawings which incorporated images of the Titanic by identifying specific camera
angles and shooting sequences. (Am. Compl. P 38.) During the expedition itself,
Lindsay claims to have been "the director, producer and cinematographer" of the
underwater footage. (Am. Compl. P 46.) As part of this role, Lindsay alleges
that he directed daily planning sessions with the film crew to provide them with
"detailed instructions for positioning and utilizing the light towers." (Am.
Compl. P 47.) Moreover, the plaintiff actually "directed the filming" of the
Titanic from on board the Ocean Voyager, the salvage vessel that held the crew
and equipment. (Am. Compl. P 47) Finally, Lindsay screened the footage at the
end of each day to "confirm that he had obtained the images he wanted." (Am.
Compl. P 48.)
All else being equal, where a plaintiff alleges that he exercised such a high
degree of control over a film operation -- including the type and amount of
lighting used, the specific camera angles to be employed, and other
detail-intensive artistic [*16] elements of a film -- such that the final
product duplicates his conceptions and visions of what the film should look
like, the plaintiff may be said to be an "author" within the meaning of the
Copyright Act.
Indeed, the instant case is analogous to Andrien v. Southern Ocean County
Chamber of Commerce, 927 F.2d 132 (3d Cir. 1991). There, the Third Circuit
recognized that "a party can be considered an author when his or her expression
of an idea is transposed by mechanical or rote transcription into tangible form
under the authority of the party." Id. at 135. The plaintiff in Andrien had
received a copyright for a map of Long Beach Island, New Jersey which was
created from a compilation of pre-existing maps and the plaintiff's personal
survey of the island. To transform his concepts and the information he had
gathered into the final map, the plaintiff hired a printing company to print the
map in final form. The plaintiff testified that the maps were made by the
printer "with me at her elbow practically" and that he spent time each day at
the print shop during the weeks the map was made, directing the map's
preparation in specific detail. In reversing [*17] the lower court's granting
of summary judgment against the plaintiff, the court noted that the printers had
not "intellectually modified or technically enhanced the concept articulated by
Andrien," nor did they "change the substance of Andrien's original expression."
Id. at 135. See also Lakedreams v. Taylor, 932 F.2d 1103, 1108 (5th Cir. 1991)
(noting that authors may be entitled to copyright protection even if they do not
"perform with their own hands the mechanical tasks of putting the material into
the form distributed to the public"). It is too early to tell whether the
allegations of the plaintiff here satisfy the copyright laws, but crediting his
story as I must, dismissal is unwarranted at this stage of the litigation.
The defendants' argue that Geshwind v. Garrick, 734 F. Supp. 644 (S.D.N.Y.
1990), vacated in part, 738 F. Supp. 792 (S.D.N.Y.1990), aff'd, 927 F.2d 594 (2d
Cir.), cert. denied, 502 U.S. 811 (1991), mandates dismissal. That case,
however, is inapposite. The plaintiff there, a producer of computer graphics
animation and special effects, had contracted to produce [*18] a 15-second
animation piece. The plaintiff hired Digital, a computer graphics company to, in
essence, produce the animated piece. The court in Geshwind found that Digital,
by its employee, was the "author" within the meaning of the Copyright Act. In
ruling that the plaintiff was not an "author," Judge Patterson found that the
plaintiff there had made only minimal contributions to the final product and had
only some, if any, of his "suggestions" incorporated into the final product.
Id. at 650. This is in stark contrast to the case at bar where Lindsay alleges
that his contributions -- not suggestions -- were anything but minimal, and he
describes himself as the driving force behind the final film product at issue
here.
3. Joint-Authorship
In the alternative, the defendants argue that Lindsay is, at best, a joint
author of the underwater footage with RMST. This contention is based on the
notion that Christian Petron, the main photographer of the film, was at least a
joint-author of the footage with the plaintiff. Since Petron's participation was
accomplished under the auspices of a work for hire agreement with RMST, the
defendants' argument continues, [*19] any rights to authorship Petron may have
received via his filming were conferred upon RMST. As a joint author with the
plaintiff then, RMST cannot be liable for copyright infringement since each
co-author acquires an undivided interest in the entire work and has the right to
use the work as he or she pleases. Thomson v. Larson, 147 F.3d 195, 199 (2d
Cir. 1998); Weissmann v. Freeman, 868 F.2d 1313, 1318 (2d Cir.) ("An action for
infringement between joint owners will not lie because an individual cannot
infringe his own copyright."), cert. denied, 493 U.S. 883, 107 L. Ed. 2d 172,
110 S. Ct. 219 (1989). Similarly, any copyright claim against DCI would fail
since RMST, as a joint author, has the right to license the joint work to third
parties. Thomson, 147 F.3d at 199.
A "joint work" under the Copyright Act is one "prepared by two or more
authors with the intention that their contributions be merged into inseparable
or independent parts of a unitary whole." 17 U.S.C. § 101. To prove
co-authorship status, it must be shown by the individual claiming co-authorship
status that each of the putative [*20] co-authors (1) fully intended to be
co-authors, and (2) made independently copyrightable contributions to the work.
Thomson, 147 F.3d at 200 (citing Childress v. Taylor, 945 F.2d 500, 507-508 (2d
Cir. 1991)).
Drawing all inferences in favor of Lindsay, I conclude that no such status
existed in the case at bar. With regard to the intent prong of the analysis, "an
important indicator of authorship is a contributor's decision making authority
over what changes are made and what is included in a work." 147 F.3d at 202-3
(citing Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1071-72 (7th Cir. 1994)
(actor's suggestions of text did not support a claim of co-authorship where the
sole author determined whether and where such suggestions were included in the
work)). In other words, where one contributor retains a so-called "veto"
authority over what is included in a work, such control is a strong indicator
that he or she does not intend to be co-authors with the other contributor.
According to the pleadings, the plaintiff exercised virtually total control over
the content of the film as "the director, producer and cinematographer" of the
[*21] production. (Am. Compl. P 46.) Additionally, he briefed the photographers
with regards to, inter alia, the specific camera angles they were to employ,
(Am. Compl. P 47), and Lindsay screened the film each day to make sure the
proper footage was obtained. (Am. Compl. P 48.) Based on these allegations, and
implicit in the notion that the film crew was simply "following directions," n5
Lindsay retained what appeared to be exclusive authority over what was included
in the footage. Assuming as I must at this stage of the litigation that this is
true, it can hardly be said that the plaintiff intended Petron -- or any other
contributor -- to be a co-author. Accordingly, the claims by RMST that it -- by
virtue of Petron's role as a photographer under a work-for-hire agreement -- was
a joint-author within the meaning of the Copyright Act must fail.
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n5 Along these lines, Lindsay's alleged control over the filming rendered the
film crew's role to one of no more than "rote or mechanical transcription that
[did] not require intellectual modification," Andrien, 927 F.2d at 135, a
contribution that would not be independently copyrightable. Id.; Thomson, 147
F.3d at 200. RMST's claims of joint-authorship would thus fail on this prong as
well.
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4. Accounting
Lindsay's fifth cause of action seeks an accounting by DCI, SCI, and RMST of
moneys these defendants received from their unauthorized use of the copyrighted
footage at issue. Regardless of whether this Court -- or a jury -- ultimately
finds that Lindsay and RMST are joint authors, with respect to DCI, the
plaintiff's complaint here sinks under its own weight.
The duty to provide an accounting from profits obtained runs only between
co-owners of a copyright. Margo v. Weiss, 1997 U.S. Dist. LEXIS 20867, *26, No.
96 Civ. 3842, 1998 WL 2558, at *9 (S.D.N.Y. Jan. 5, 1998) ("The duty to account
for profits presupposes a relationship as co-owners of the copyright . . . .");
cf. Thomson, 147 F.3d at 199 ("Each joint author has the right to use or to
license the work as he or she wishes, subject only to the obligation to account
to the other joint owner for any profits that are made.") (emphasis added);
Kaplan v. Vincent, 937 F. Supp. 307, 316 (S.D.N.Y. 1996) ("Each author maintains
the right to use or license the work, subject only to an accounting to the other
co-owner.") (emphasis added). Because DCI is only a licensee of a putative joint
owner [*23] of the copyright at issue here, Lindsay's claim for an accounting
fails as a matter of law and must be dismissed. n6
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n6 Because the plaintiff fails to state a cognizable copyright claim against
defendant SCI, as discussed herein, count five is also dismissed as to defendant
SCI.
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III. CONCLUSION
For the reasons discussed above, the defendants' motions are DENIED in part
and GRANTED in part such that the plaintiff's cause of action for copyright
infringement against SCI is dismissed, as is Lindsay's cause of action for an
accounting with respect to DCI and SCI only. The plaintiff's remaining
copyright-based claims n7 and other causes of action have survived this motion.
n8 The current pre-trial scheduling order remains in place, and the case is on
the January 2000 trailing trial calendar.
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n7 These causes of action are as follows: declaration of copyright ownership;
copyright infringement by RMST; copyright infringement by DCI; and an
accounting, with respect to RMST only. [*24]
n8 These causes of action, not at issue in the instant motions to dismiss,
include: breach of contract; breach of implied covenant of good faith; quantum
meruit; conversion; "money lent"; fraud; fraudulent misrepresentation;
declaration of co-salvor status; and common law fraud and deceit.
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SO ORDERED.
Dated: October 12, 1999
New York, New York
Harold Baer Jr.
U.S.D.J.