as the discussion above reveals, had nothing to do with an alleged mutilation or distortion of plaintiffs' works. Choe's admission that he alone is the author of his Comment (Choe Dep. at 8, 221-22, 225), distinguishes further his claim from the one asserted in Follett. Because it cannot be said that the scores of alleged typographical and substantive errors in Choe's Comment "presented him to the public as the creator of a work not his own," his Lanham Act claim must fail. See Considine v. Penguin, U.S.A., No. 91 Civ. 4405, 1992 U.S. Dist. LEXIS 10570, 1992 WL 183762, at *5 (S.D.N.Y. July 20, 1992) (granting defendant summary judgment on Lanham Act claim because defendant's alleged factual and stylistic "mangling" of plaintiff's article failed to meet high standard set by Gilliam).
There is no federal claim for violation of plaintiff's alleged "moral rights." The Court in Gilliam stated that nearly 20 years ago. 538 F.2d at 24 ("American copyright law . . . does not recognize moral rights or provide a cause of action for their violation"). Gilliam, as the discussion above reveals, did not involve a federal common law claim of "moral rights"; it involved an analysis of § 43(a) of the Lanham Act. The second case plaintiff cites, Community for Creative Non-Violence v. Reid, 270 U.S. App. D.C. 26, 846 F.2d 1485, 1498-99 (D.C. Cir. 1988) (Ginsburg, J.), aff'd, 490 U.S. 730, 104 L. Ed. 2d 811, 109 S. Ct. 2166 (1989), stated that defendant, a sculptor, "may have rights against [plaintiff] should it publish an excessively mutilated or altered version" of his work. (emphasis added) The only case cited in support of that statement was Gilliam, which, as pointed out above, held that there was no "moral rights" claim. Whatever language there may be in Reid or Gilliam to suggest a federal common law claim for deprivation of an author's "moral rights" is dictum, and has not generated any claim in this Circuit for almost 20 years. The dictum itself is not the kind of prescriptive statement intended to guide trial courts in later cases, but only language intended, perhaps, to "stimulate informed commentary" or to "provoke future consideration of emerging issues." United States v. Oshatz, 912 F.2d 534, 540 (2d Cir. 1990), cert. denied, 500 U.S. 910, 114 L. Ed. 2d 89, 111 S. Ct. 1695 (1991). Even if the idea of a "moral rights" claim presented an "emerging issue" in 1976, when Gilliam was decided, or in 1988, when Reid was decided, the failure of that issue to emerge fully as a recognized claim by now suggests that such emergence should occur in the first instance, if at all, at the circuit level and not in this court. The creator of the work in Reid, of course, could now bring an action under the Visual Artists Rights Act of 1990 ("VARA"), for any "distortion, mutilation, or other modification" of his work. 17 U.S.C. § 106A. VARA, however, protects only authors of a work of visual art. Id.
The only other federal case plaintiff cites, National Bank of Commerce v. Shaklee Corp., 503 F. Supp. 533, 544 (W.D. Tex. 1980), did not even mention a cause of action for "moral rights." Plaintiff asserts also that the Berne Convention for the Protection of Literary and Artistic Works, Article 6bis, confers a right of action in federal court for violation of "moral rights." The Berne Convention, however, does not confer federal jurisdiction. See 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 8D.02[D], 8d-15-30 (1994) (Convention itself, as adopted, does not create federal common law action for violation of author's "moral rights").
Because the law in this Circuit does not recognize an author's common law "moral rights" to sue for alleged distortion of his written work, plaintiff's purported "moral rights" claim is dismissed. Absent federal jurisdiction, there is no reason to hear plaintiff's pendent state law claims in this court, and they too are dismissed. United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); Strong v. Board of Educ. of Uniondale Union Free Sch. Dist., 902 F.2d 208, 213 (2d Cir. 1990).
Michael B. Mukasey,
U.S. District Judge
Dated: New York
July 12, 1995
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