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February 25, 1986

STUART BERGER, M.D., Plaintiff
SIMON & SCHUSTER, a Division Of Gulf & Western Corporation, Defendant

Sand, J.

The opinion of the court was delivered by: SAND


Plaintiff Berger, a medical doctor and author, brings this action against defendant, Simon & Schuster, a publishing house, alleging that defendant infringed on a copyright belonging to plaintiff. Defendant has moved to dismiss the action on the ground that the Court lacks jurisdiction over the subject matter or, alternatively, because the complaint fails to state a cause of action. Plaintiff has opposed those motions and has cross-moved for a preliminary injunction restraining defendant from further infringement.

 Although the issue, in an area fairly described as "murky," Keith v. Scruggs, 507 F. Supp. 968, 970 (S.D.N.Y. 1981), is not free from doubt, we agree with defendant that the Court lacks subject matter jurisdiction over plaintiff's claim. Thus, we grant defendant's relevant motion and make no finding on the others.

 There apparently being no diversity of citizenship, plaintiff contends that jurisdiction over the subject matter of this action is conferred on this Court by the Copyright Act, 17 U.S.C. § 101 et seq., and 28 U.S.C. § 1338(a). Plaintiff's Memorandum at 2. Defendant disputes this assertion, averring that the complaint states "nothing more than a garden variety contract dispute." Defendant's Memorandum of Law in Support of Motion to Dismiss the Complaint at 4. In order to evaluate the relative merits of these two contentions, we must briefly summarize the facts underlying plaintiff's cause of action.

 In August, 1981, plaintiff entered into a contract, the "Publishing Agreement," with defendant pursuant to which plaintiff would deliver to defendant a book written by plaintiff and entitled The Southampton Diet. Defendant was granted an exclusive license to publish and distribute, inter alia, the hard-cover and soft-cover reprint editions of the book for the duration of the United States copyright. Defendant was to take all necessary steps to secure a copyright for the book in plaintiff's name. Pursuant to the contract, a copyright in Berger's name was indeed secured and in June of 1982, defendant published the book. Sales of The Southampton Diet apparently were disappointing.

 In the Spring of 1985, Berger published a second book with a different publisher entitled Dr. Berger's Immune Power Diet, which enjoyed immediate success and became a best seller. Simon & Schuster, in an effort to capitalize on the strength and popularity of plaintiff's second book, decided to reprint and offer for sale The Southampton Diet. It so informed plaintiff and began republication in August of 1985. Affidavit of William Grose ("Grose Aff.") at para. 4.

 It is this republication that prompted plaintiff to bring the instant suit, contending that defendant had "infringed . . . [plaintiff's] copyright." Complaint at para. 8. It is plaintiff's contention that pursuant to para. 92 of the Publishing Agreement, plaintiff had "revoke[d] the Publisher's [i.e., the defendant's] right to publish any further copies of the . . . Literary Work." Paragraph 92 of the Publishing Agreement provides in pertinent part:

92. If, at any time after the expiration of two years from the actual publication date, either of the following events occurs:
(i) the Publisher [Simon & Schuster] notifies the Author [Berger] in writing that the Publisher intends to discontinue publication of both the trade and textbook editions of the Literary Work; or
(ii) the Publisher allows all editions of the Literary Work to go out of print and does not place any edition on sale within six months after the Author has made a request therefor in writing, and if there is no English language or foreign language reprint edition authorized by Publisher available or contracted for,
the Author may by a notice in writing (a) revoke the Publisher's right to publish any further copies of the trade editions of the Literary Work. . . .

 Berger's position is that para. 92 provides two alternative methods to revoke Simon & Schuster's right to publish and that the conditions necessary to trigger the revocation under either method were met prior to defendant's republication of The Southampton Diet in 1985. Without going into detail unnecessary for our purposes here, each of Berger's claims is predicated upon an interpretation of an exchange of letters between an employee of defendant and plaintiff (and his agents). See Affidavit of Joseph Calderon at Exhibits B, C, D & E; Reply Affidavit of Scott Meredith. Defendant disputes plaintiff's interpretation of the letters and thus disputes that plaintiff ever revoked defendant's rights. See Affidavit of Eric Rayman at paras. 3-7. There appears also to be a dispute about whether The Southampton Diet ever went "out-of-print," a fact which would have some bearing on the issue of revocation. See Reply Affidavit of Scott Meredith at paras. 3-4.

 We have recounted these facts to indicate the nature of the substantive dispute that is before the Court, and we turn now to the statute controlling jurisdiction here.

 Section 1338(a) of Title 28 of the United States Code provides in relevant part that "the district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to . . . copyrights. . . . Such jurisdiction shall be exclusive of the jurisdiction ...

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