as to defendant Taylor's joint authorship counterclaim. The
Second Circuit agreed with the district court that "there is no
evidence from which a trier of fact could infer that Childress
had the state of mind required for joint authorship. . . . There
is no evidence that Childress ever contemplated, much less would
have accepted, crediting the play as `written by Alice Childress
and Clarice Taylor.'" Childress, 945 F.2d at 509. In the
present case, however, Goldsmith's April 20 proposal constitutes
the type of evidence lacking in Childress.
In Thomson, the Second Circuit upheld the district court's
conclusion, made after a bench trial, that Thomson, a dramaturg,
was not a joint author of the Broadway musical Rent. 147 F.3d
at 199. Among the evidence that Thomson offered to show that the
author, Larson, intended the play to be a joint work was a
statement Larson had made to Thomson that he would "`always
acknowledge [Thomson's] contribution'" and "`would never say that
[he] wrote what [Thomson] did.'" Id. at 205. The Second Circuit
upheld the district judge's determination that Larson's statement
was consistent with the view that Larson was the sole author of
Rent. Id. Thomson fails to mandate summary judgment in the
present case for two reasons. First, the district judge had made
his determination after a bench trial, not on a motion for
summary judgment. Second, Goldsmith's request that Maurizio
co-author FWC with her, made before much of Maurizio's work on
the outline and draft chapters of FWC, constitutes stronger
evidence of intent than the statement attributed to Larson in
Thomson. Indeed, a trier of fact could reasonably find intent
based on Goldsmith's April 20 request that Maurizio co-author
FWC, followed by Maurizio's work on the outline and draft
chapters until May 10, 1990.
b. Copyrightable Contribution
Even if Maurizio establishes the requisite intent on
Goldsmith's part, Maurizio's asserted contributions to FWC must
be copyrightable. Copyright protection extends to "original works
of authorship fixed in any tangible medium of expression."
17 U.S.C. § 102(a). For the following reasons, this Court finds that
genuine issues of fact exist as to the copyrightability of
Maurizio's contributions that render summary judgment improper.
As noted above, only tangible forms of expression are protected
by the Copyright Act. "Ideas, refinements, and suggestions,
standing alone, are not the subjects of copyrights." Erickson v.
Trinity Theatre, Inc., 13 F.3d 1061, 1072 (7th Cir. 1994); see
also Attia v. Society of New York Hosp., 201 F.3d 50, 53-54 (2d
Cir. 1999) (noting that "[a] copyright . . . protects not the
author's ideas, but only her expression of them"); Williams v.
Crichton, 84 F.3d 581, 587 (2d Cir. 1996) (same). Maurizio
contends not only that her ideas and suggestions were
incorporated into FWC, but also that some of her language, that
is, her expression, appears in the novel. While her ideas and
suggestions are not copyrightable, language which she produced as
a tangible form of expression (in the outline or draft chapters)
and which was intended to and did indeed merge with Goldsmith's
work in FWC may be copyrightable. Maurizio claims that her
language appears on 27 of FWC's 480 pages, (see Def. Ex. I),
and much of this language appears in the outline and draft
chapters. Most notable is the language in the FWC chapter
"Masters of the Universe," (see Def. Ex. I) which Maurizio
alleges she originally wrote in her draft chapter "He-Man and
Wonder Woman." (See Def. Ex. I, Pl.Ex. 17). Thus, this Court
holds that at least some of the language allegedly contributed by
Maurizio is copyrightable. Whether and to what extent the
language is indeed Maurizio's expression is an issue of fact not
properly considered at this time.
For a contribution to be copyrightable, originality is also
required. To be original, an author's work must (1) be
independently created by the author and
(2) possess at least a minimal degree of creativity. Feist
Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345,
111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); Matthew Bender & Co. v.
West Publ'g Co., 158 F.3d 674, 681 (2d Cir. 1998). "To be sure,
the requisite level of creativity is extremely low; even a slight
amount will suffice. The vast majority of works make the grade
quite easily, as they possess some creative spark, `no matter how
crude humble or obvious' it might be." Feist, 499 U.S. at 345,
111 S.Ct. 1282 (citing 1 M. Nimmer & D. Nimmer, Copyright §
1.08[C] (1990)). Applying these standards to the facts of this
case, the question of whether the language was independently
created by Maurizio is disputed, and thus one for the trier of
fact. Further, this Court holds that at least a portion of the
language Maurizio claims as hers contains a sufficient degree of
creativity. In sum, questions remain as to the originality of
Maurizio's contributions which make summary judgment improper at
c. Goldsmith's Derivative Work Argument
Goldsmith argues that even if Maurizio was a joint author of
the outline and draft chapters, she was not a joint author of FWC
itself because the novel is Goldsmith's derivative work of these
earlier joint works. (Def. Br. at 31-33). In Weissmann v.
Freeman, the Second Circuit held that "[e]ven though one
co-author has the right to revise a joint work in order to create
an individual derivative work, the other co-author acquires no
property rights in the newly created work prepared without his
involvement." 868 F.2d 1313, 1318 (1989) (citations omitted).
Goldsmith also points to Ashton-Tate v. Ross, where the Ninth
Circuit held that "[j]oint authorship in a prior work is
insufficient to make one a joint author of a derivative work."
916 F.2d 516, 522 (9th Cir. 1990).
This argument fails because, considering the evidence, a trier
of fact could reasonably find that, at the time Maurizio made her
contributions to the outline and draft chapters, both parties
intended that these contributions were being made as part of the
development of FWC itself, and that some of Maurizio's
contributions might be "merged" with Goldsmith's work in FWC. In
other words, the parties did not necessarily intend that the
outline and draft chapters were simply ends in themselves.
Rather, they may have been intended to be a part of the process
of completing the final product — FWC. This was not the situation
in either Weissmann or Ashton-Tate.
Further, even if no reasonable trier of fact could find
Maurizio to be a joint author of FWC (considering it as distinct
from the underlying works, as Goldsmith's derivative work
argument does), summary judgment would be improper because a
joint author must account to his co-author for use of their joint
work in a derivative work. See Weissmann v. Freeman,
868 F.2d 1313, 1318; see also Ashton-Tate, 916 F.2d at 522. Thus,
Goldsmith would have to account to Maurizio for Goldsmith's use
of the outline and draft chapters in constructing FWC.
2. Copyright Infringement
Maurizio's first claim, argued in the alternative to her joint
authorship claim, is for copyright infringement of the outline
and draft chapters which she purportedly created. "To prevail in
an action for copyright infringement, `a plaintiff must show 
ownership of a valid copyright and  the defendant's
infringement by unauthorized copying.'" Debitetto v. Alpha
Books, 7 F. Supp.2d 330, 333 (S.D.N.Y. 1998) (quoting
Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139 (2d Cir.
1992)). If unauthorized copying occurred, the "`plaintiff must
then show that the copying amounts to an improper appropriation
by demonstrating that substantial similarity [of] protected
material exists between the two works.'" Id. (quoting
Laureyssens, 964 F.2d at 140).
Goldsmith argues that "the minimal bits of expression claimed
by Maurizio, much of which consists of only sentence fragments,
are not independently copyrightable and, accordingly, not subject
to infringement." (Goldsmith Br. at 33). However, the "minimal
bits of expression" that Goldsmith points to are not the source
of infringement here, but rather the alleged product of
infringement. The sources of the infringement are the 62-page
outline and draft chapters allegedly written by Maurizio.*fn2
This Court does hold that, under Maurizio's version of the
facts in this case, the outline was jointly authored by Maurizio
and Goldsmith. "[A]n action for infringement between joint owners
will not lie because an individual cannot infringe his own
copyright." Weissmann, 868 F.2d at 1318. Therefore, the outline
in this case cannot be a source of infringement. A successful
infringement claim must be based on the draft chapters which
Maurizio allegedly wrote.
As discussed supra, copyright protection extends to original,
tangible forms of expression. The draft chapters pass this test.
Further, there appears to be little question that at least some
copying occurred. This Court cannot say that the works are not
substantially similar. Further, even though the language at issue
constitutes a very small portion of the complete novel of FWC,
"no plagiarist can excuse the wrong by showing how much of his
work he did not pirate." Sheldon v. Metro-Goldwyn Pictures
Corp., 81 F.2d 49, 56 (2d Cir. 1936) (Hand, J.); accord Nihon
Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 72
(2d Cir. 1999). Thus, summary judgment will not be granted on the
grounds that Maurizio has not sufficiently supported her
copyright infringement claim.
D. Lanham Act Claim
Maurizio's third claim is for violation of Section 43(a) of the
Lanham Act, 15 U.S.C. § 1125(a). Goldsmith's sole argument for
dismissal of this claim is that "[b]ecause this claim pivots on
establishing that Maurizio is a co-author, it fails for the same
reasons that the second count [for joint authorship] fails."
(Goldsmith Br. at 24).
As already decided, the Copyright Act's statute of limitations
is the sole grounds for dismissal of the joint authorship claim.
Thus, though the joint authorship claim itself is dismissed, the
evidence that Maurizio has submitted in support of that claim can
still be used to support her other claims, including the Lanham
Act claim. Therefore, summary judgment on the Lanham Act claim is
E. State Law Claims
1. Wrongful Misappropriation of Novel and Original Literary
Maurizio's fourth claim is for wrongful misappropriation of
novel and literary ideas. Goldsmith argues that this claim "is an
echo of Maurizio's efforts in the state court action to avoid the
Copyright Act," and is thus preempted by the Copyright Act.
(Goldsmith Br. at 24).
This Court holds that Maurizio's misappropriation claim is not
preempted. As already noted, the Copyright Act provides
protection for the expression of ideas, not the ideas themselves.
Courts in this circuit have noted that, where a Copyright Act
claim is found to be lacking (which Goldsmith argues is the
situation in this case), a claim such as misappropriation may
lie. See, e.g., Past Pluto Prod. Corp. v. Dana, 627 F. Supp. 1435,
1445 n. 10 (S.D.N.Y. 1986) (noting that while the plaintiff
did not assert a claim for misappropriation, "it appears that a
misappropriation claim . . . would not have been preempted,
insofar as such a claim would have been based on defendants'
of plaintiff's idea, a subject matter beyond the scope of
copyright law."); Whitfield v. Lear, 582 F. Supp. 1186, 1189
(E.D.N.Y.) (finding that "[p]laintiff here claims an infringement
of his ideas, which are non-copyrightable. Given the . . .
legislative history, it is unlikely that these claims are
preempted by the Copyright Act"), rev'd on other grounds,
751 F.2d 90 (2d Cir. 1984). This Court agrees with these courts and
holds that, since the Copyright Act protects expressions of ideas
and not ideas themselves, Maurizio's misappropriation claim is
not preempted by the Copyright Act.
"Although copyright protection does not extend to an author's
ideas, New York law, in contrast, recognizes that an individual
can have a protectable property interest in an idea which is
novel and original." Paul v. Haley, 183 A.D.2d 44, 588 N.Y.S.2d 897,
902 (N.Y.App. Div. 1992) (citations omitted). Because this
Court finds that Maurizio's misappropriation claim is not
preempted by the Copyright Act, Goldsmith's motion for summary
judgment of this claim is denied.
2. Common Law Unfair Competition
The sole reason asserted for dismissal of Maurizio's unfair
competition claim is that the claim pivots on the allegations of
infringement or joint authorship. This claim thus survives
Goldsmith's motion for the same reasons that the Lanham Act claim
3. Violation of New York General Business Law Sections 349 and
Maurizio's sixth and seventh claims allege violations of New
York General Business Law Sections 349 and 350. In arguing for
summary judgment on these claims, Goldsmith cites to Netzer v.
Continuity Graphic Assoc., where the court stated that: