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January 26, 2000


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 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 S.Ct. 2505 (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).


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 writing. (Id.).

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 & 13).

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. at 130:19-132:5).

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 ...

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