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July 7, 1998


The opinion of the court was delivered by: KAHN


 Presently before the Court are plaintiff's first and second motions for partial summary judgment as well as the defendant's motion to dismiss the complaint. Plaintiff brings this cause of action on two counts. The first claim is to collect damages from an alleged copyright infringement and the second is a pendent state claim to recover past compensation which is allegedly due.


 Plaintiff David C. Jehnsen ("Jehnsen") worked with the late civil rights leader Dr. Martin Luther King, Jr. ("Dr. King") from 1962 until Dr. King's death in 1968. Jehnsen studied the nonviolent methodology practiced by Dr. King and after Dr. King's death, he continued to develop the methodology and train others in his teachings. Jehnsen served as an instructor and consultant to the Martin Luther King Jr. Center for Non-Violent Social Change in Atlanta, Georgia.

 The defendant New York State Martin Luther King, Jr. Institute for Nonviolence (the "Institute") was created by the New York State legislature "in response to the significant public need for the state to develop methods in addition to the current law enforcement responses to curb violence and encourage the nonviolent management of social conflict." N.Y. Exec. Law § 320 (McKinney 1993). The Institute was in its infancy when it contacted Jehnsen to assist in the establishment, operation and administration of the Institute.

 In 1988 and 1989 Jehnsen was employed by the Institute as a "Senior Consultant." For his services, Jehnsen received the rate of $ 96 per hour not to exceed the sum of $ 72,000 for 750 hours of his contract. Jehnsen was also entitled to bill the State up to $ 25,000 in travel and lodging expenses that he incurred while on Institute business. According to the defendant, the contract was amended in 1989 to adjust the ceiling upward and the Jehnsen ultimately received in excess of $ 100,000 for his work.

 In the Fall of 1989, at the request of the Institute's Executive Director Thomas Cooper ("Cooper"), Jehnsen worked with Dr. Bernard Lafayette ("Lafayette") to co-author "The Leader's Manual, A Structured Guide and Introduction to Kingian Nonviolence: The Philosophy and Methodology" (the "Leader's Manual"). Jehnsen billed the State of New York as a Senior Consultant for the time he spent on the Leader's Manual for work prior to April 1, 1990. Thereafter, Jehnsen received compensation as a salaried contract employee of the Institute for his work on the Leader's Manual.

 In January of 1990, Jehnsen and Lafayette presented finalized copies of the Leader's Manual to Cooper. On the cover of the Leader's Manual was a copyright notice specifying that Jehnsen and Lafayette were the copyright owners. Cooper voiced an objection to the copyright notice which excluded the Institute. Cooper also considered the work to be incomplete since he felt that the authors had failed to provide proper credit to Dr. King, Mahatma Ghandi, and Richard and Hepsebagh Hauser for the ideas contained in the Leader's Manual. Jehnsen and Lafayette thereafter attempted to reach an agreement with Cooper where the Institute would share in the ownership of the copyright and the proceeds from the sale of the Leader's Manual would be distributed in the amount of 40% each to Jehnsen and Lafayette and 20% to the Institute. Although a contract was drafted, this agreement was never consummated. However, Jehnsen reproduced 300 copies of the Leader's Manual with the Institute included in the copyright notice relying upon the imminent signing of the agreement.

 In January of 1991, Jehnsen sent a Copyright License Agreement to the Institute which set forth more restrictive terms than the aforementioned joint ownership proposal. *fn1" This agreement was never signed by any of the parties. Thereafter, on June 19, 1991 Jehnsen obtained a Federal Copyright Registration *fn2" listing Jehnsen and Lafayette as co-owners of the Leader's Manual.

 Jehnsen asserts that the Institute generated over two million dollars in training fees while using the Leader's Manual without permission. Furthermore, Jehnsen asserts that the Institute has copied the work in its entirety and has used portions of the Leader's Manual in its own curriculum manual. In all, Jehnsen contends that over 5,000 copies of manuals which contain all or substantial portions of the Leader's Manual have been wrongly distributed by the Institute. The Institute contends that the 300 copies provided by the plaintiff were never sold by the Institute and were only used for training purposes. Due to a lack of funding, the Institute ceased functioning in March of 1996.


 In plaintiff's first motion for partial summary judgment, Jehnsen asserts that summary judgment is appropriate for the copyright infringement claim. Defendant's cross-motion to dismiss the claim is based on the argument that the claim is barred by the Eleventh Amendment. In Jehnsen's second motion for partial summary judgment, plaintiff contends that summary judgment is appropriate for the past compensation claim. Because the defendant's motion to dismiss involves a question of the Court's jurisdiction over the matter, it will be addressed first.

 A. Law of the Case Doctrine

 As an initial matter, plaintiff argues that due to the fact that the defendant raised an Eleventh Amendment argument before the District Court for the Southern District of Ohio, Eastern Division, and was denied relief, it is barred by the law of the case doctrine from raising the argument again. Defendant asserts that because Eleventh Amendment questions raise issues ...

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