The opinion of the court was delivered by: McKENNA, District Judge.
Plaintiff Cynthia Maurizio ("Maurizio") brought this action for
copyright infringement, a declaration of joint authorship and an
accounting in connection therewith, violation of Lanham Act
Section 43(a), and various state law claims against defendant
Olivia Goldsmith ("Goldsmith").*fn1 (Compl. ¶ 3). The facts of
the case involve authorship of the novel The First Wives Club
("FWC"), which was subsequently made into a motion picture. This
Court has jurisdiction based upon the federal questions involved,
see 28 U.S.C. § 1331, 1338 & 1367, and based upon diversity of
citizenship, see 28 U.S.C. § 1332.
Goldsmith now moves for summary judgment. For the reasons set
forth in this opinion, this Court grants Goldsmith's motion as to
the following: (1) the joint authorship claim, (2) the copyright
infringement claim so far as it alleges acts of infringement that
did not occur within three years of Maurizio's filing of her
complaint in this Court, and (3) claims under New York General
Business Law Sections 349 and 350. Goldsmith's motion is denied
as to the remainder of the claims.
SUMMARY JUDGMENT STANDARD
Summary judgment should be granted only "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986). A dispute regarding a material fact
is genuine "if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). "If reasonable minds could differ as to the import of the
evidence," summary judgment is inappropriate. Id. at 250, 106
S.Ct. 2505. Once the moving party establishes a prima facie case
demonstrating the absence of a genuine issue of material fact,
the non-moving party has the burden of presenting "specific facts
showing that there is a genuine issue for trial." Fed. R.Civ.P.
56(e). The non-moving party must "do more than simply show that
there is some metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
In evaluating the record to determine whether there is a
genuine issue as to any material fact, "[t]he evidence of the
non-movant is to be believed, and all justifiable inferences are
to be drawn in [her] favor." Anderson, 477 U.S. at 255, 106
(1986). "If, as to the issue on which summary judgment is sought,
there is any evidence in the record from any source from which a
reasonable inference could be drawn in favor of the nonmoving
party, summary judgment is improper." Chambers v. TRM Copy
Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). Further, when a
case turns on the intent of one party, a "trial court must be
cautious about granting summary judgment." Gallo v. Prudential
Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).
FACTUAL AND PROCEDURAL BACKGROUND
As noted above, at this stage Maurizio's evidence is to be
believed and all justifiable inferences are to be drawn in her
favor. Thus, the following history accepts Maurizio's allegations
as true where they are properly supported by evidence.
A. Goldsmith and Maurizio Agree to Work Together
Goldsmith and Maurizio first met during the summer of 1989 at a
social event hosted by RKO Pavilion ("Pavilion"), a movie
production company. At the time, both were aspiring novelists. By
the end of that year, they had become friendly.
In or around June 1989, Goldsmith started writing FWC.
Initially, Goldsmith intended FWC as a movie script, but by
November 1989, however, Goldsmith decided to write the story as a
novel. By January 1990, Goldsmith had completed the first hundred
pages of the manuscript. By March 1990, Al Zuckerman
("Zuckerman"), an agent with Writers' House, Inc., had agreed to
represent Goldsmith based on his evaluation of a 20-30 page
synopsis of FWC constructed by Goldsmith. Zuckerman advised
Goldsmith that, before he could sell the novel, he would need
either a complete manuscript of FWC or a revised partial
manuscript and a promotional outline of the entire book. The
latter option was more feasible for Goldsmith, and she decided to
pursue Maurizio's assistance.
In March 1990, Maurizio declined two requests from Goldsmith to
"write the outline." (Pl.Ex. 1, Maurizio 12/6/91 Dep. at 19:8-15,
22:17-23:10, 24:11-14). On April 7, 1990, Goldsmith "got down on
her hands and knees and begged" Maurizio to work with her,
telling her it would be "a big opportunity for both of [them]."
(Pl.Ex. 2, Maurizio 6/10/93 Dep. at 238:12-239:3). On that date,
Maurizio agreed to "give it a shot." (Pl.Ex. 1, Maurizio 12/6/91
Dep. at 26:13-15). According to Brendan Gunning, Maurizio's
friend, Goldsmith was excited to work with Maurizio because
Maurizio would be able to help Goldsmith structure the plot and
had the mechanics that Goldsmith lacked for putting together a
novel. (Pl.Ex. 8, Gunning Dep. at 36:7-16). Goldsmith told
Gunning at that time that Maurizio was "going to plot the book
and do the outline." (Id. at 37:1-5).
According to Maurizio, Goldsmith proposed to pay her $10,000 to
work on the outline, regardless of whether it was successfully
sold. (Pl.Ex. 1, Maurizio 12/6/91 Dep. at 26:20-27:12). At
various times Goldsmith told Maurizio that if the book were sold,
they would both "make a lot of money off of [the] book" and "be
rich." (Id. at 32:19-33:14; Pl.Ex. 4, Maurizio 8/13/97 Dep. at
519:7-11). Also, Goldsmith promised to introduce Maurizio "as a
co-writer of the novel and the outline of the novel" to
Zuckerman. (Pl.Ex. 1, Maurizio 12/6/91 Dep. at 198:12-199:7).
B. Goldsmith and Maurizio Begin to Work Together
At the time that Goldsmith and Maurizio agreed to work
together, Goldsmith had completed drafts of a dozen early
chapters of FWC, and Maurizio used these chapters to start the
outline. (Pl.Ex. 1, Maurizio 12/6/91 Dep. at 46:9-17). On April
10, 1990, Goldsmith and Maurizio met for several hours at
Maurizio's home. (Id. at 49:3-4). On that day Goldsmith
prepared a document called the "Outline for the Outline," (see
Pl.Ex. 11), which she shared
with Maurizio. (Pl.Ex. 7, Goldsmith 9/28/98 Dep. at
298:21-300:6). The two discussed characters to be created, the
characters' personalities, how to proceed on the chapters yet to
be written, and "how to fill in the blanks and . . . get to
[certain] points." (Pl.Ex. 1, Maurizio 12/6/91 Dep. at
49:19-50:8). They also discussed the placement of certain
characters in certain chapters and performed an exercise of
simultaneously writing a few paragraphs to compare each other's
From April 10-20, they began writing outlines for the next few
chapters, and attempted to construct one-sentence descriptions
for subsequent chapters. (Id. at 57:10-58:5). They then
considered what other chapters needed to be created or
rearranged. (Id.). Maurizio took notes of their conversations
and wrote new sections of the outline expressing the ideas they
generated. (Id. at 60:8-61:12). Maurizio would show portions of
the outline to Goldsmith as they were written. (Id. at
61:3-12). They would then discuss Maurizio's work, and sometimes
Goldsmith provided written comments. (Id.; see also Pl.Ex. 12 &
C. Goldsmith Proposes Co-Authorship
On April 20, 1990, Goldsmith presented the completed chapter
outlines to Zuckerman. Afterwards, Goldsmith told Maurizio that
the meeting with Zuckerman went very well, and that they were
both going to "make a lot of money." (Pl.Ex. 1, Maurizio 12/6/91
Dep. at 10:17-11:18). According to Maurizio, Goldsmith presented
her with an orchid and proposed that they co-write the entire
novel. (Id. at 12:4-17). Maurizio understood this to mean that
when she co-wrote the novel, she would be credited as a
co-author. (Id. at 68:21-70:2).
D. Maurizio's Contributions
Maurizio claims that, from the time she and Maurizio began to
work together until May 14, she worked on the outline nearly
daily and that she and Goldsmith met or talked about the outline
every day. (Pl Ex. 2, Maurizio 6/10/93 Dep. at 346:23-347:9; see
also Pl.Ex. 16). On May 10, 1990, a 62-page outline was
completed. However, before a hard copy was printed, Maurizio
mistakenly deleted the entire outline from the computer. Maurizio
reconstructed the outline by May 14, 1990. (Pl.Ex. 1, Maurizio
12/6/91 Dep. at 161:1-167:8). Goldsmith thanked her for her
"heroic retrieval." (See Pl.Ex. 18).
On May 15, 1990, Goldsmith delivered the reconstructed outline
and about 250 pages of FWC text which she had written to
Zuckerman. (Def. Ex. E, Maurizio 12/6/91 Dep. at 168:18-169:2;
Def. Ex. B, Goldsmith 12/18/91 Dep. at 135:4-7). A few days
later, Zuckerman told Goldsmith that he wanted to make changes to
the outline and "be more actively involved in the project."
(Pl.Ex. 4, Maurizio 8/13/97 Dep. at 528:5-23).
After delivering the outline to Zuckerman but before receiving
feedback from him, Goldsmith gave Maurizio a check for $1,000 for
her work. On the memo portion of the check, Goldsmith wrote "for
typing services." Maurizio objected to this because she was not a
typist. Goldsmith thus wrote her a second check that substituted
the word "loan" in the memo portion. They agreed on this term
because they planned to settle accounts at a later time. (Pl.Ex.
1, Maurizio 12/6/91 Dep. at 83:4-87:17, 89:7-12).
Maurizio contends that she made numerous contributions to the
outline. Her efforts allegedly included creating new characters,
assisting Goldsmith with the articulation of a premise,
constructing ideas or premises of her own which Goldsmith would
agree or disagree with, and substantially contributing to the
creation and personae of the second wives and the husbands, who
were principal characters of FWC. (See, e.g., id. at
50:14-68:8, 90:6-104:18, 106:4-123:25, 149:3-159:7). However,
Maurizio does not dispute that every
draft of the outline contains the following notation: "The First
Wives Club, by Justine Rendal." (See, e.g., Def. Ex. Q).
Beyond her contributions to the outline, Maurizio contends that
she wrote two draft chapters of FWC. Maurizio called the first of
these "Bad Day at Black Rock." She admits that she "began to
write it as an outline and it started to become a chapter." (Def.
Ex. E, Maurizio 12/6/91 Dep. at 265:3-4). She first told
Goldsmith that she was writing this chapter on April 20, 1990. At
that time she gave Goldsmith the first page of the chapter and
Goldsmith encouraged her to finish it. Maurizio gave the
completed chapter to Goldsmith around April 23, 1990. (Pl.Ex. 1,
Maurizio 12/6/91 Dep. at 13:8-14:5, 62:9-63:4). Goldsmith read it
and made some handwritten comments. (Id. at 64:9-15; see also
Pl.Ex. 14). Around that same time, Maurizio also offered to
write, and then wrote, a second chapter, which she called "He-Man
and Wonder Woman." Maurizio asserts that she agreed to write the
chapter after Goldsmith asked her how she felt about writing sex
scenes. Maurizio wrote the chapter and presented it to Goldsmith,
who read it and told Maurizio it was terrific. (Pl.Ex. 1,
Maurizio 12/6/91 Dep. at 67:5-13, 67:24-68:20; see also Ex.
15). Around this time, the two agreed that after the outline was
completed they would divide up the chapters and go to East
Hampton during the summer to complete the novel. (Pl.Ex. 1,
Maurizio 12/6/91 Dep. at 68:3-8).
E. Goldsmith Refuses Maurizio Co-Authorship Credit
According to Maurizio, she and Goldsmith always planned to work
out a formal co-authorship agreement. On May 15, 1990, Maurizio
attempted to formalize their agreement, asking for co-authorship
credit and twenty-five percent of the profits from the book.
(Def. Ex. E, Maurizio 12/6/91 Dep. at 169:11-170:15). Goldsmith
reacted to this request "very badly. She acted shocked,
appalled." (Id. at 353:10-15). Maurizio characterized
Goldsmith's reaction as "freaking out," (id. at 353:22-23), and
stated that Goldsmith "absolutely refused to give [her] credit in
any way." (Id. at 336:14-16). On May 18, 1990, Maurizio again
approached Goldsmith about co-authorship credit, but Goldsmith
again refused to give her credit. (Id. at 354:4-13). On May 21,
1990, Goldsmith told her that Zuckerman wanted a number of
changes to the outline, and that Goldsmith was going to "shelve
it" for a while. (Id. at 354:10-15; Pl.Ex. 1, Maurizio 12/6/91
Dep. at 125:13-126:18). Goldsmith never introduced Maurizio as a
co-writer to Zuckerman, as she had promised. (Pl.Ex. 1, Maurizio
12/6/91 Dep. at 198:12-199:7).
It is not disputed that the parties never agreed to write the
rest of FWC together, and that Maurizio did nothing with respect
to FWC after the reconstruction of the outline on May 14, 1990.
F. Goldsmith's Completion of FWC
On May 21, 1990, Goldsmith told Maurizio that she was going on
vacation and indefinitely postponing the writing of the remainder
of FWC. (Def. Ex. E, Maurizio 12/6/91 Dep. at 355:4-9). Instead,
Goldsmith went to East Hampton with Gunning, and, according to
Gunning, he completed writing FWC after discussions with
Goldsmith that were based in part on the outline. (Pl.Ex. 8,
Gunning Dep. at 63:5-20, 64:20-65:15, 73:1-17).
Maurizio learned about Goldsmith's completion of FWC on January
23, 1991 through an article in the New York Post about
Goldsmith's sale of FWC to Paramount. (See Def. Ex. K). She
demanded a twenty-five percent credit as co-author, (id.), but
Goldsmith told her that under no circumstances would she give
Maurizio co-authorship credit. (Def. Ex. E, Maurizio 12/6/91 Dep.
G. Maurizio's Lawsuit in New York State Court
Maurizio commenced an action in the New York State Supreme
Court on July 31, 1991. In her verified complaint, she alleged
breach of contract, fraudulent inducement, conversion, and unjust
enrichment, and demanded an accounting of profits. (See Def.
Ex. L). As the case progressed, Goldsmith moved for summary
judgment, asserting that Maurizio's claims were preempted by the
Copyright Act. Maurizio denied that her claim was one under the
Copyright Act. For example, Maurizio's brief in opposition to
Goldsmith's motion for summary judgment in the state court action
stated that: "Plaintiff does not contend . . . that she possesses
or has a right to possess a copyright under the Copyright Act.
Nor does she contend that defendant has infringed on any of her
rights under ...