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LUKASEWYCH v. WELLS

October 16, 1990

BODI LUKASEWYCH, PLAINTIFF,
v.
WELLS, RICH, GREENE, INC., AND ITT SHERATON CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Haight, District Judge:

MEMORANDUM OPINION AND ORDER

Plaintiff Bodi Lukasewych, a professional photographer, brings this action against defendants Wells, Rich, Greene, Inc. ("WRG"), an advertising agency, and ITT Sheraton Corporation, a hotel chain and WRG's client. The action arises out of defendants' use of copyrighted commercial photographs taken by plaintiff. Plaintiff asserts subject matter jurisdiction under 28 U.S.C. § 1338. Defendants move to dismiss the complaint under Rules 12(b)(1) and 12(b)(6), F.R.Civ.P., or in the alternative for summary judgment under Rule 56, on the ground that the case does not arise under the act of Congress relating to copyrights, and accordingly this Court lacks subject matter jurisdiction. The parties submit affidavits which enhance the pleadings, and so I treat the motion as one for summary judgment. No party suggests the need for additional factual submissions, and so the motion is ripe for decision. If defendants' contention is well founded, this Court lacks jurisdiction, for the parties are not diverse in their citizenship.

Background

It is common ground that WRG, an advertising agency, retained on behalf of its client Sheraton the services of plaintiff, a professional photographer, to photograph various hotel settings in California. These photographs were intended for advertising use in print media, posters, brochures, and other trade and publicity use. Plaintiff shot the photographs on November 14, 15, and 16, 1989. He delivered the photographs to WRG on or about November 23, 1989. Affidavit of Bev Don at ¶ 3.

On November 30, 1989, Don, the manager of art buying for WRG, issued three purchase orders to plaintiff for the job. WRG prepared a separate purchase order for each of the three California locations. The total photographer's fee of $15,500 had been previously agreed. The allocation of that total fee among the three locations was for the convenience of defendants.

Each purchase order is in like form. The front page consists of typed and printed material. The back page contains a number of printed paragraphs. Two of the purchase orders recite in typed language on the front page:

  Fee allows for use of photographs in Print Media
  (US & Canada) for 2 years. Posters in Hotels,
  brochures, trade and publicity use for an
  unlimited time.

The third purchase order provides in typed language:

  Fee allows for use of photographs in Regional
  Publications and/or NBA/Team related
  Publications.

See, respectively, Exhibits B, D, and C to Don affidavit.

The front page of each purchase order contains the printed capitalized instruction: "TO BE SIGNED AND RETURNED TO WRG." Each purchase order was signed by Don. Below his signature, there is a signature line for the "Supplier", preceded by the printed phrase "Agreed and Accepted." Plaintiff signed each of the purchase orders on those lines and returned them to WRG.

The purchase orders, in addition to specifying the allocated fees for each location referred to in the purchase order, contain the phrase: "plus expenses as estimated."

The reverse side of each purchase order contains a printed paragraph which provides in pertinent part:

  This purchase order is complete and contains all
  of the terms, conditions and covenants pertaining
  to the materials or work to be performed
  hereunder and shall not be changed, modified or
  amended except by ...

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