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holding that discovery rule only applies to ownership claims and applying injury rule to infringement claim
Summary of this case from PK Music Performance, Inc. v. TimberlakeOpinion
No. 03 Civ. 8772 (GEL).
November 3, 2004
Douglas E. Grover, Courtney L. Sheinmel, Thompson Hine LP, New York, NY, and Thomas W. Palmer, Thompson Hine LLP, Columbus, OH, for Plaintiff.
Gerard E. Harper, Robert Greenawalt, Paul, Weiss, Rifkind, Wharton Garrison LLP, New York, NY, for Defendant.
OPINION AND ORDER
In a lawsuit stemming from a failed personal and professional relationship, Christina P. Sharp charges James Patterson, a popular novelist, with breach of contract, breach of implied contract, misappropriation of novel and original ideas, promissory estoppel, copyright infringement under the Copyright Act, 17 U.S.C. 101 et seq, and unjust enrichment. Patterson has moved to dismiss the entire amended complaint with prejudice. For the reasons that follow, the motion will be granted in part and denied in part.
The action was commenced on November 5, 2003, and an amended complaint was filed on December 24, 2003. All citations to the complaint herein refer to the amended complaint.
In her original complaint, invoking the Court's diversity jurisdiction, 28 U.S.C. § 1332(a)(1), Sharp alleged state law claims for breach of contract, breach of implied contract, unjust enrichment, misappropriation of novel and original literary ideas, and promissory estoppel. The amended complaint added federal copyright infringement claims, thus invoking federal question jurisdiction, 28 U.S.C. § 1331, and copyright jurisdiction, 28 U.S.C. § 1338(a). The amended complaint also added a breach of implied contract claim (Count Four) in reference to Suzanne's Diary. (Compl. ¶¶ 51-56.) Sharp has since consented to the dismissal of that count. (P. Br. 8 n. 11, 22 n. 19.)
BACKGROUND
The facts set forth below, drawn from the amended complaint, must be taken as true for purposes of this motion.
I. The Relationship Between Sharp and Patterson
Sharp first contacted Patterson by letter in 1995, after reading an article about him. (Compl. ¶ 9.) Patterson responded to her letter; the two began to communicate by telephone and mail; and in June 1996, they met in person in Ohio. (Id. ¶¶ 9-11.) Over time, Sharp and Patterson "became romantically involved and ultimately planned to marry." (Id. ¶ 12.) In tandem with their romantic relationship, Sharp alleges, the two "developed a close professional relationship," in which Patterson discussed problems with his writing, and Sharp helped by acting "as a sounding board and [making] suggestions to him." (Id. ¶ 13.) Patterson and Sharp also discussed Sharp's aspiration to write a book, and her idea for the project. (Id. ¶¶ 20-21, 45-46.) In April 1997, Patterson terminated his romantic and professional relationship with Sharp. (Id. ¶ 23.) Sharp asserts various claims stemming from her asserted contributions to several of Patterson's works during the course of this relationship.
II. Cat Mouse
In November 1997, Patterson published Cat Mouse, a novel featuring the detective Alex Cross, the hero of earlier books by Patterson. Like several of his other novels, Cat Mouse ultimately became a New York Times bestseller. (Declaration of Gerard E. Harper, dated March 5, 2004 ("Harper Decl."), Ex. E.) Cat Mouse is the subject of several of Sharp's claims.
In August 1996 Patterson sought her help with Cat Mouse. Patterson told her that he was "unable to write romantic passages between [the book's] central characters, Alex Cross and Christine Johnson," and was experiencing particular difficulty writing Christine's character. (Compl. ¶ 14.) According to Sharp, Patterson asked her to write the romantic scenes and to develop Christine's character, "offer[ing] [in exchange] to compensate Ms. Sharp by publicly acknowledging her contributions" through a book dedication. (Id. ¶¶ 15-16, 37.) Sharp also alleges that "[a]t the time Ms. Sharp accepted Mr. Patterson's offer, she and Mr. Patterson ha[d] plans to marry. When married, Ms. Sharp would be compensated for her contributions by sharing the proceeds of Cat Mouse as marital community property." (Id. ¶ 16.) Sharp presented her work to Patterson through conversation and letters that "contained short literary passages, bullet point phrases, ideas, and character development." (Id. ¶ 18.) Sharp claims that in writing the romantic passages and developing Christine's character, she relied on Patterson's offers to compensate her work through the book dedication and monetary reward. (Id. ¶¶ 16-17.)
The original and amended complaints contain several versions of this allegation, which vary somewhat concerning whether Patterson promised such compensation or whether it was simply Sharp's expectation that, when married, she would benefit from the book's proceeds. Thus, elsewhere in the amended complaint Sharp states that she and Patterson "entered into an agreement . . . whereby Ms. Sharp agreed to write the romance between the characters Alex and Christine and to develop the character Christine for the novel Cat Mouse, in exchange for which Mr. Patterson would share the financial proceeds from Cat Mouse and would publicly acknowledge Ms. Sharp's contributions by dedicating Cat Mouse to her." (Compl. ¶ 31 (emphasis added); see also id. ¶¶ 38, 58.) Sharp's original complaint alleged that "[i]n exchange for her contribution, Mr. Patterson agreed to compensate Ms. Sharp by: (1) publicly acknowledging her contribution to Cat Mouse by dedicating the book to her and (2) assisting Ms. Sharp in publishing a book that she was writing. . . . It was also Ms. Sharp's understanding that she would be compensated for her contribution when the proceeds of Cat Mouse would be shared as marital community property." (Harper Decl., Ex. D ¶ 12; emphasis added.)
According to Sharp, Patterson "retained Ms. Sharp's ideas for and contributions to Cat Mouse," and without Sharp's knowledge, consent, or authorization, incorporated many of her ideas and work product into the published version of Cat Mouse. (Id. ¶¶ 25, 28, 32-33.) " Cat Mouse contains nearly exact copies of Ms Sharp's unique work product which was contained in some of Sharp's [l]etters" (id. ¶ 66), in which Sharp owns copyrights. (Id. ¶ 64; Declaration of Courtney L. Sheinmel, dated April 6, 2004 ("Sheinmel Decl."), Ex. 3.) Sharp also alleges that Patterson used the work she did for Cat Mouse in other novels. (Compl. ¶ 40.)
Sharp's allegation that Patterson used passages she wrote without her authority is somewhat inconsistent with the allegation that the parties had agreed that Sharp would write the passages to assist Patterson with his difficulty writing "romantic passages" for Cat Mouse. (Compl. ¶¶ 14, 31.)
Sharp points to three instances in Cat Mouse where, she alleges, Patterson incorporated her work into the text. The parallel passages, all involving romantic encounters between Alex and Christine, are set out below. (P. Br. 3-4.) Cat Mouse, Cat Mouse, Cat Mouse,
Patterson objects that Sharp's complaint does not "disclose what her ideas or words were, or where they are to be found in Mr. Patterson's work" (D. Br. 10), and further argues that providing such details in the brief is an "improper attempt to amend her pleading." (D. Reply Br. 1.) While it is true that "[p]laintiffs may not amend their complaint through their opposition brief," Reading Int'l, Inc. v. Oaktree Capital Mgmt. LLC, 317 F. Supp. 2d 301, 318 n. 9 (S.D.N.Y. 2003), on a motion to dismiss the Court may consider documents that are either incorporated into the complaint by reference or integral to the complaint. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); Weizmann Inst. of Sci. v. Neschis, 229 F. Supp. 2d 234, 246-47 (S.D.N.Y. 2002); Matusovsky v. Merrill Lynch, 186 F. Supp. 2d 397, 400 (S.D.N.Y. 2002). The complaint makes ample reference to Sharp's letters and to the published text of Cat Mouse, and accordingly the Court may consider the portions of these documents to which Sharp's brief alludes.
Sharp further alleges that she "created the original idea . . . to write a fictional romance novel in the form of a letter from a mother to her children explaining her past courtship and romance with a man," with the letter incorporating a series of love letters between the mother and her lover, and narrative passages connecting the letters. (Compl. ¶ 43.) Sharp "disclosed [her] [i]dea" to Patterson, and they discussed how Sharp could develop her idea into a publishable book. (Id. ¶¶ 44, 45.) According to Sharp, Patterson told her "that she should write the story of [her] [b]ook as their romance had actually happened." (Id. ¶ 46.) The love letters Sharp used in her book are Sharp's and Patterson's "actual letters to each other." (Id. ¶ 43.)
Although the complaint clearly alleges that it was Patterson's idea to base the book on their relationship, Sharp's brief includes conflicting descriptions of whether that idea was Sharp's or Patterson's. Sharp's brief claims that "[h]er idea was a fictional romance novel based on the unique circumstances of their relationship" (P. Br. 5), but later continues, "Patterson suggested that she write [her book] as their romance had actually happened." (Id. 6.) In correspondence submitted to the Court in response to Patterson's reply brief, Sharp stated that "[o]nly after she disclosed her idea to Patterson did he advise her to begin drafting her book by writing their romance as it happened. Patterson merely suggested how she should develop her preexisting idea into written form." (Letter from Douglas E. Grover, to the Court (" P. Ltr."), dated May 28, 2004, at 2.)
The complaint fails to specify who suggested the specific stylistic choice to use Sharp's and Patterson's own love letters, though it credits Patterson with the general idea of styling the book after their relationship. (Id. ¶ 46.) Neither does the complaint discuss whether Patterson consented to Sharp's use of the letters he wrote to her. Patterson's brief, however, states that Sharp's book includes "extensive unauthorized copying (and hence infringement)" of Patterson's letters. (D. Reply Br. 2.) Sharp responds that "[b]y suggesting to Sharp that she should begin drafting her book by writing their romance as it happened, Patterson consented to her using his letters." (P. Ltr. dated May 28, 2004, at 2.) Since Patterson has not brought any counterclaims against Sharp, the Court need not resolve this issue.
Sharp began work on the book with the expectation that Patterson would help her revise, complete, and publish it. (Id. ¶ 53.) Sharp specifically alleges that Patterson told her he would help "by revising her draft . . ., by changing their real names to fictional names, and by contributing to the story." (Id. ¶ 21.) Patterson also "recommended an agent to Ms. Sharp who, he said, could assist" in publishing her book. (Id. ¶ 22.) Eventually Sharp sent a draft of her book, in which she owns a copyright, to the agent Patterson recommended. (Id. ¶ 104; Sheinmel Decl., Ex. 3.)
Sharp completed her book after her relationship with Patterson had ended. (Id. ¶ 24.) Patterson neither revised it nor helped her complete or publish it. (Id. ¶¶ 24, 55.) Instead, without Sharp's knowledge, consent, or authorization, Patterson allegedly used her idea and work product to create Suzanne's Diary for Nicholas (" Suzanne's Diary"), published in July 2001. (Id. ¶¶ 26-28, 49.) Suzanne's Diary, Sharp alleges, "mirrors the storyline of, and contains novel ideas set forth in" her book. (Id. ¶¶ 27, 106.)
By the time their relationship ended, Sharp had written only a preliminary draft of her book. (Compl. ¶ 24; P. Br. 6.) The complaint does not allege that Patterson read the preliminary draft, or even that Sharp gave him a copy. Rather, Sharp generally alleges that Patterson created Suzanne's Diary based on Sharp's communication to Patterson of her idea for the story's general outline. In her brief on this motion, Sharp points to two specific instances where Suzanne's Diary mirrors passages or events contained in her preliminary draft (P. Br. 6-7), and reproduces two passages from Suzanne's Diary wherein she alleges Patterson copied language or a calendar date from two of her letters. (Id.)
First, Sharp cites a passage in a letter to Patterson in which she describes a night when she and Patterson went to a bar, where Patterson sang Elvis Presley's "All Shook Up" to her. (Id. 6.) The allegedly parallel passages from Sharp's letter and Suzanne's Diary are set forth below. Suzanne's Diary,
Sharp Letter of October 15, 1996: p. 8: Thank you for singing 'I'm all Shook Up' at One night they had stopped at a little juke Jeremiah's — you were adorable and good bar on Avenue A. They danced, and Matt too. (Sheinmel Decl., Ex. 4.) sang 'All Shook Up' in her ear, doing a funny but improbably good Elvis impersonation. (Harper Decl., Ex. B.) Second, Sharp claims that in "the preliminary draft" of her book she "described how Patterson had sent her a silver picture frame and told her to select a picture and mail the frame back with the picture in it — the selection of which would be a surprise." (P. Br. 7.) Suzanne's Diary allegedly mimics this surprise:
We're going to celebrate your first twelve months tomorrow. I have your gifts all picked out. One of them is the pictures from our vacation. I selected the best couple of shots, and I'm having them framed. I won't tell you which picture I like best; that'll be a surprise. But I will tell you that it will be in a silver frame with carved moons and stars and angels all around it.
(Harper Decl., Ex. B, 226-27.) Third, Sharp alleges that she informed Patterson in a letter that her former boyfriend had died on July 18, 1994. In Suzanne's Diary, Suzanne dies on July 18, 1999. (Sheinmel Decl., Ex. 4; P. Br. 7.) Finally, Sharp alleges that in her book "her son, as a little boy, gave her a heart shaped locket" (P. Br. 7; Sheinmel Decl., Ex. 6), and that in Suzanne's Diary, Matt gives Suzanne a heart-shaped locket. (Harper Decl., Ex. B, 136.)
IV. Other Patterson Books
Finally, Sharp's complaint alleges that Patterson used her ideas and work product, including passages from her letters to him, without her knowledge, consent, or authorization, in his books Jack Jill, published in September 1996 (Compl. ¶ 74), When the Wind Blows, published in October 1998 (id. ¶ 82), Pop Goes the Weasel, published in October 1999 (id. ¶ 90), 1st to Die, published in March 2001 (id. ¶ 98), and The Lake House, published in June 2003 (id. ¶ 114). (Id. ¶¶ 26, 28.) Sharp alleges that each of these works "contains copies of creative sequences of words and phrases from" and "bears a substantial similarity to" Sharp's copyrighted letters. (Id. ¶¶ 74, 82, 90, 98, 114.) Patterson has "neither publicly acknowledged nor compensated" Sharp for her contributions to his works. (Id. ¶ 29.)
DISCUSSION
Sharp's complaint includes various New York common law claims in addition to copyright infringement claims under the federal Copyright Act. After setting forth the legal standards governing this motion, the Court will address the merits of each of Sharp's claims.
I. Standard on Motion to Dismiss
For the purposes of this motion to dismiss, the facts as alleged in Sharp's complaint must be taken as true, Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995), and all reasonable inferences must be drawn in the plaintiff's favor.Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 216 (2d Cir. 2004). At the same time, "[g]eneral, conclusory allegations need not be credited . . . when they are belied by more specific allegations of the complaint." Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Whyte v. Contemporary Guidance Servs., Inc., No. 03 Civ. 5544, 2004 WL 1497560, at *3 (S.D.N.Y. July 2, 2004). This Court may only dismiss a complaint if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Patel v. Searles, 305 F.3d 130, 135 (2d Cir. 2002) (internal quotation marks omitted).
II. Breach of Contract
Count One of Sharp's complaint alleges breach of contract. Specifically, Sharp alleges that she "agreed to write the romance between the characters Alex and Christine and to develop the character Christine for the novel Cat Mouse, in exchange for which Mr. Patterson would share the financial proceeds from Cat Mouse and would publicly acknowledge Ms. Sharp's contributions by dedicating Cat Mouse to her." (Compl. ¶ 31.) Patterson moves to dismiss this claim, arguing (1) that Sharp fails to plead the elements of breach of contract, and in particular that she fails to allege provable damages; and (2) that Sharp's claim is preempted by the Copyright Act. (D. Br. 11-12, 16-17.)
A. Elements of Breach of Contract
It is undisputed that New York law governs this action. The elements of a breach of contract under New York law are "(1) the existence of a contract; (2) plaintiff's performance on the contract; (3) defendant's breach of contract; and (4) resulting damages." Ross v. FSG PrivatAir Inc., 2004 WL 1837366, at *3 (S.D.N.Y. Aug. 17, 2004). The complaint adequately alleges all of these elements. As discussed, Sharp has alleged a contract by which Patterson agreed "share the financial proceeds from Cat Mouse" with her and to dedicate the book to her in exchange for her work (Compl. ¶ 31), facts sufficient to establish a contract for the purposes of a motion to dismiss. She has also alleged performance of her contractual obligations, as well as Patterson's failure to carry his end of the bargain. (Id. ¶ 32-34.)
Sharp claims the damages resulting from Patterson's purported breach of their Cat Mouse contract include "the natural and foreseeable consequences of Mr. Patterson's failure to publicly acknowledge her contributions to Cat Mouse, his failure to dedicate Cat Mouse to her and his failure to compensate her for her contributions." (Id. ¶ 35.) "Under New York law, plaintiffs asserting breach of contract claims must allege facts showing damage caused by the alleged breach." US Airways Group, Inc. v. British Airways PLC, 989 F. Supp. 482, 492 (S.D.N.Y. 1997) ("Although the allegations of damages are short on specifics and USAir may ultimately have difficulty establishing the amount of damages caused by the alleged breach, such allegations are sufficient to survive a motion to dismiss the complaint."); see Fowler v. Am. Lawyer Media, Inc., 761 N.Y.S.2d 176, 177 (1st Dep't 2003); Gordon v. Dino De Laurentiis Corp., 529 N.Y.S.2d 777, 777 (1st Dep't 1988); see also Kaplan v. Aspen Knolls Corp., 290 F. Supp. 2d 335, 338 (E.D.N.Y. 2003). Patterson argues that Sharp's breach of contract claim fails to allege provable damages. According to Patterson, his alleged breach of an agreement to dedicate Cat Mouse to Sharp "is incapable of measurement in money damages," and Sharp's expectation of financial compensation is "tantamount to a claim for breach of a contract to marry," which New York has abolished. (D. Br. 16-17.)
The liberal pleading standard of Fed.R.Civ.P. 8(a), which requires only that a party assert "a short and plain statement of the claim showing that the pleader is entitled to relief and . . . a demand for judgment," combined with the proper standard of review on a motion to dismiss, creates a forgiving arena in which Sharp's contract claim is sufficient. Kaplan, 290 F. Supp. 2d at 338, citing Fed.R.Civ.P. 8(a)(2); see also Window Headquarters, Inc. v. MAI Basic Four, Inc., No. 91 Civ. 1816, 92 Civ. 5283, 1993 WL 312899, at *3-4 (S.D.N.Y. Aug. 12, 1993);Huntington Dental Medical Co., Inc. v. Minnesota Mining Mfg. Co., No. 95 Civ. 10959, 1998 WL 60954, at *3 (S.D.N.Y. Feb. 13, 1998). Although some portions of the complaint supports Patterson's characterization, others set out a straightforward claim of a contract to exchange writing services for a financial consideration. At this stage of the proceedings, the complaint must be read in the light most favorable to the plaintiff, and should not be dismissed unless it is "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Patel, 305 F.3d at 135 (internal quotation marks omitted). Thus favorably read, the complaint presents facts showing damages from the alleged breach, specifically, the withholding of her purported share of the financial proceeds (Compl. ¶ 31), and thus for the purposes of this motion satisfies the basic pleading requirement with regard to damages in a breach of contract claim. Sharp's claim for damages based on the alleged agreement to share the financial proceeds from Cat Mouse makes it unnecessary at this stage to address whether the Court has the equitable power to order specific performance of a promise to dedicate a book, or whether a claim for damages for breach of a contract to dedicate a novel is too speculative to survive.
Some of Sharp's allegations regarding financial proceeds seem to allege less a contract and more an unenforceable unilateral expectation that she and Patterson would marry, after which she hoped to share in the proceeds of the book as "marital community property." (Compl. ¶¶ 16, 38.) To the extent that this is the real basis of Sharp's claim, it will not survive summary judgment. However, paragraph 31 of the complaint, quoted above, specifically alleges a bargained-for exchange of writing services for an unspecified share in the proceeds of the published work.
B. Copyright Act Preemption
Patterson also argues that Sharp's contract claim is preempted by the Copyright Act. (D. Br. 11-12.) Although it is true that Congress designed the Copyright Act "to establish a uniform and comprehensive national system of copyright protection,"Leutwyler v. Royal Hashemite Court, 184 F. Supp. 2d 303, 308 (S.D.N.Y. 2001), Patterson overstates the preemptive reach of the Act. The Copyright Act does not automatically preempt each and every claim "when a party seeks to protect rights in the expression of ideas." (D. Br. 12.)
Section 301(a) of the Copyright Act expressly preempts "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103." 17 U.S.C. § 301(a). The Second Circuit has derived from this statute a two-part test for Copyright Act preemption of state law claims. "The Copyright Act exclusively governs a claim when: (1) the particular work to which the claim is being applied falls within the type of works protected by the Copyright Act under 17 U.S.C. §§ 102 and 103 ['the subject matter requirement'], and (2) the claim seeks to vindicate legal or equitable rights that are equivalent to one of the bundle of exclusive rights already protected by copyright law under 17 U.S.C. § 106 ['the general scope requirement']." Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 305 (2d Cir. 2004), citing 17 U.S.C. § 301(a) and Nat'l Basketball Ass'n v. Motorola, Inc., 105 F.3d 841, 848 (2d Cir. 1997). To satisfy the subject matter requirement, the state law claim in question must pertain to "original works of authorship fixed in any tangible medium of expression," 17 U.S.C. § 102(a), "within the ambit of one of the categories of copyrightable works." Briarpatch, 373 F.3d at 305. To satisfy the general scope requirement, "the state-created right m[ust be of the sort that would] be abridged by an act that would, by itself, infringe one of the exclusive rights provided by federal copyright law." Id.
Section 106 provides:
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictoral, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.17 U.S.C. § 106.
In other words, state law claims that are substantively redundant of Copyright Act claims are preempted. "To determine whether a claim meets this standard, the Court must determine what plaintiff seeks to protect, the theories in which the matter is thought to be protected and the rights sought to be enforced."Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 716-17 (2d Cir. 1992) (internal quotation marks and citation omitted). A state law claim with "an 'extra element' beyond mere reproduction, preparation of derivative works, distribution, performance or display, that changes the nature of the action so that it is qualitatively different from a copyright infringement claim," survives preemption. Logicom Inclusive, Inc. v. W.P. Stewart Co., No. 04 Civ. 0604, 2004 WL 1781009, at *16 (S.D.N.Y. Aug. 10, 2004) (internal quotation marks omitted); see Briarpatch, 373 F.3d at 305-06; Computer Assocs., 982 F.2d at 716-17.
Although Sharp's state law claims for breach of contract meet the subject matter requirement for preemption — literary works such as those at issue here fall within the categories of material expression protected by the Act, 17 U.S.C. § 102(a)(1);Harper Row, Publishers, Inc. v. Nation Enters., 723 F.2d 195, 200 (2d Cir. 1983) — Sharp's Cat Mouse contract claim seeks to vindicate rights, allegedly created by an agreement between the parties, distinct from copyright law. State law breach of contract claims are "generally not preempted by the Copyright Act," so long as the claim is "based on allegations of a contractual right not existing under copyright law."Logicom, 2004 WL 1781009, at *18 (emphasis in original), citing H.R. Rep. No. 1476, 94th Cong. 2d Sess. 132, reprinted in 1976 U.S.C.C.A.N. 5659, 5748 ("[N]othing in the bill derogates from the rights of parties to contract with each other and to sue for breaches of contract."). The Copyright Act preempts breach of contract claims that seek to vindicate the same rights as the Copyright Act affords, "such as unauthorized reproduction, performance, distribution, or display." Am. Movie Classics Co. v. Turner Entm't Co., 922 F. Supp. 926, 931 (S.D.N.Y. 1996);see, e.g., Cooper v. Sony Records Int'l, No. 00 Civ. 233, 2001 WL 1223492, at *4-5 (S.D.N.Y. Oct. 15, 2001). However, when, as here, a breach of contract claim "is based on allegations that the parties' contract creates a right not existing under copyright law — a right based upon a party's contractual promise — and the plaintiff is suing to protect that contractual right, then the claim is not preempted." Am. Movie Classics, 922 F. Supp. at 931; see, e.g., Logicom, 2004 WL 1781009, at *18;Torah Soft Ltd. v. Drosnin, 224 F. Supp. 2d 704, 716-17 (S.D.N.Y. 2002). "[T]he extra element that saves a contract claim from preemption is the promise itself." Logicom, 2004 WL 1781009, at *18 (internal quotation marks omitted); Torah Soft, 224 F. Supp. at 716-17.
"Copyrightable material often contains uncopyrightable elements within it, but Section 301 preemption bars state law misappropriation claims with respect to uncopyrightable as well as copyrightable elements." Nat'l Basketball Ass'n, 105 F.3d at 849.
Sharp alleges that she and Patterson entered into an agreement whereby Sharp would help write portions of the romantic plot of Cat Mouse and develop the character Christine in exchange for a share in the book's financial proceeds and the dedication of the book to her. (Compl. ¶ 31.) Granted, the complaint lacks detail as to such matters as the precise nature of the agreement between Patterson and Sharp, how it was entered or formalized, and what share of financial proceeds Patterson promised, and portions of the complaint do charge Patterson with appropriating Sharp's copyrighted writings. Nevertheless, the facts alleged in the complaint, viewed in the light most favorable to Sharp, also allege the existence of a valid contract by which Sharp would work on the Cat Mouse romance in exchange for consideration. (Id. ¶ 31.) Therefore, despite any other descriptions of the professional arrangement between Patterson and Sharp, and notwithstanding any other claims made in the complaint, Count One validly alleges the existence of a contract that constitutes a privately created right distinct from Sharp's rights under copyright law. Accordingly, her breach of contract claim is not preempted by the Copyright Act.
III. Breach of Implied Contract
In Count Two, Sharp alleges breach of an implied contract for her work on Cat Mouse. (Compl. ¶¶ 36-41.) This claim is essentially duplicative of Count One. An implied contract "may result as an inference from the facts and circumstances of the case, although not formally stated in words, and is derived from the 'presumed' intention of the parties as indicated by their conduct. It is just as binding as an express contract arising from declared intention, since in the law there is no distinction between agreements made by words and those made by conduct."Jemzura v. Jemzura, 36 N.Y.2d 496, 503-04 (1975) (citations omitted); People v. Wood, 121 N.Y. 522, 530 (1890); Carter v. Katz, 465 N.Y.S.2d 991, 996 (N.Y.Sup.Ct. 1983); see W.B. David Co. v. DWA Communications, Inc., No. 02 Civ. 8479, 2004 WL 369147, at *2 (S.D.N.Y. Feb. 26, 2004). In other words, whether the alleged contract between Patterson and Sharp was expressly stated in words or tacitly agreed by means of non-verbal conduct, in either event Sharp alleges that an agreement between them actually existed, and that Patterson breached that agreement.
The primary difference between an express and implied contract is "the manner by which its existence is established." Ahern v. S. Buffalo Ry, 303 N.Y. 545, 561 (1952). "A contract cannot be implied in fact where there is an express contract covering the subject matter involved." Julien J. Studley, Inc. v. New York News, Inc., 70 N.Y.2d 628, 629 (1987). But although "the theories of express contract and of contract implied in fact are mutually exclusive," Watts v. Columbia Artists Mgmt. Inc., 591 N.Y.S.2d 234, 236 (3d Dep't 1992), the federal rules do not require consistency in pleadings, and therefore Sharp "may claim alternatively on an express contract and on an implied contract."John J. Kirlin, Inc. v. Conopco, Inc., No. 94 Civ. 2675, 1995 WL 15468, at *2 (S.D.N.Y. Jan. 17, 1995) (internal quotation marks omitted), citing 5 Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1235, at 274 (2d ed. 1990 Supp. 1994).
Accordingly, Patterson's attacks are no more persuasive as to Count Two's breach of implied contract claim than they are against the Count One's breach of express contract claim. Since an implied contract is the legal equivalent of an express contract, the Copyright Act no more preempts implied contracts that create rights distinct from those protected under the Copyright Act than it does express ones. See Arpaia v. Anheuser-Busch Cos., 55 F. Supp. 2d 151, 162 (W.D.N.Y. 1999);see also Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 455-59 (6th Cir. 2001). Although the facts alleged in the complaint call into question the merits of Sharp's implied contract claim, Count Two cannot be dismissed as a matter of law. In essence, Sharp alleges in Count One and Two that she and Patterson formed an agreement. As discussed above, the distinction between an express and implied contract is simply a descriptive difference relating to how the contract was formed. It is not clear that the notice pleading adopted by the Federal Rules requires a plaintiff to specify how the plaintiff claims a contract was formed; it is sufficient to allege that a contract existed and that it was breached by the defendant. See Fed.R.Civ.P. 8(a)(2) ("a short and plain statement of the claim showing that the pleader is entitled to relief"). Whether sufficient evidence exists to permit a reasonable jury to find either an express or implied agreement can be tested by a motion for summary judgment.
An implied contract "still requires such elements as consideration, mutual assent, legal capacity and legal subject matter." Maas v. Cornell Univ., 94 N.Y.2d 87, 93-94 (1999), citing 1 Williston, Contracts § 1:5, at 22 (4th ed. 1990). The required mutual assent "must be inferred from the facts and circumstances of each case, including such factors as the specific conduct of the parties, industry custom, and course of dealing." Nadel v. Play-By-Play Toys Novelties, Inc., 208 F.3d 368, 376 n. 5 (2d Cir. 2000). Sharp asserts that she performed the work for Patterson "with the expectation that Mr. Patterson would compensate her by publicly acknowledging her contributions to Cat Mouse and by sharing with her the proceeds generated by Cat Mouse as marital property." (Compl. ¶ 38.) She alleges no conduct by Patterson that would appear to indicate his assent. True, a contract "may be implied from the mere rendition and acceptance of the service. The presumption is created that such services are to be compensated, because no one is expected to labor without hire." Fox v. Arctic Placer Mining Milling Co., 229 N.Y. 124, 128 (1920); see also Carter, 465 N.Y.S.2d at 996. But this implication "is frequently held inapplicable where a relationship, by kinship or otherwise, negates the usual implication." 22 N.Y. Jur. 2d Contracts § 614;see Fox, 229 N.Y. at 128; In re Cooke's Will, 256 N.Y.S.2d 819, 821 (Surr. 1965); In re Harvey's Estate, 102 N.Y.S.2d 725, 728 (Surr. 1951). The romantic relationship alleged in the complaint, wherein Sharp and Patterson shared letters, work product, and ideas (Compl. ¶¶ 9-22), appears to negate this presumption.
As stated in note I above, Sharp has consented to the dismissal of Count Four, which alleges breach of an implied contract with respect to Suzanne's Diary.
IV. Misappropriation of Novel and Original Literary Ideas
In Count Three, Sharp alleges that Patterson misappropriated her novel and original literary idea "to write a fictional romance novel in the form of a letter from a mother to her children explaining her past courtship with a man." (Compl. ¶ 43.) Patterson argues that Sharp's idea lacks novelty and originality as a matter of law and therefore should be dismissed. (D. Br. 13-16.)
Patterson does not argue that the Copyright Act preempts this claim, so the Court has no occasion to address that issue.
To state a claim for misappropriation of ideas in New York, the idea must be "original or novel in absolute terms." Nadel, 208 F.3d at 378. In determining novelty and originality, the Second Circuit has pointed to the following facts as relevant: "the idea's specificity or generality (is it a generic concept or one of specific application?), its commonality (how many people know of this idea?), and its commercial availability (how widespread is the idea's use in the industry?)." Id. "[I]n some cases an idea may be so unoriginal or lacking in novelty that. . . . a court may conclude, as a matter of law, that the idea lacks . . . the originality necessary to support a misappropriation claim." Id. at 378-79.
Misappropriation claims may be contract- or property-based.Nadel, 208 F.3d at 374-80; see Apfel v. Prudential-Bache Sec. Inc., 81 N.Y.2d 470 (1993). Sharp's complaint is unclear as to the precise nature of her misappropriation claim, but since she no longer alleges any contract, express or implied, between herself and Patterson with regard to Suzanne's Diary, see note 1 above, the Court assumes her claim is property-based.
At any rate, a contract-based claim would fail for essentially the same reasons as the property-based claim discussed in the text. The primary substantive difference between the two forms of misappropriation claims is that contract-based claims require plaintiffs to show novelty as to the specific defendant (so as to establish consideration). Nadel, 208 F.3d at 380. Since her complaint alleges that Suzanne's Diary is based on Sharp and Patterson's mutual romance, and that Patterson suggested she model her book after their romance, it is undisputable that the idea for Sharp's book lacked novelty for Patterson. (Compl. ¶ 46.) As discussed in the text, the basic idea of a story told through love letters is sufficiently widespread as to be "so unoriginal or lacking in novelty that its obviousness bespeaks widespread and public knowledge of the idea, and such knowledge is therefore imputed to" Patterson. Nadel, 208 F.3d at 378. Indeed, "[l]ack of novelty in an idea is fatal to any cause of action for its unlawful use." Educ. Sales Programs v. Dreyfus Corp., 317 N.Y.S.2d 840, 845 (1970) (internal quotation marks omitted).
As a matter of law, Sharp's idea to write a novel revolving around a series of love letters is neither novel nor original, at whatever level of generality the idea is assessed, and therefore her misappropriation claim will be dismissed. As exemplified, for example, by Samuel Richardson's Clarissa (1747), or Choderlos de Laclos's Les Liaisons Dangereuses (1782), epistolary novels are as old as the novel itself. In any event, as the name suggests, Suzanne's Diary is actually not told in the form of letters, but as a diary, itself hardly an original notion. Popular romantic fiction has frequently resorted to such devices. Nicholas Sparks's The Notebook (1996), which utilizes a similar device, was a best seller even before Patterson and Sharp's relationship began.
Sharp's own letter dated October 15, 1996, suggests she was familiar with The Notebook. (Sheinmel Decl., Ex. 4.)
Sharp urges the Court to consider her idea not merely as a novel based on love letters in general, but more particularly as a novel based on a mother's letter to her children explaining a past relationship, tying the letters together with narrative text, and "recount[ing] the specific events of [Sharp and Patterson's] relationship." (P. Br. 17.) But even this idea is hardly unique in recent popular fiction. Robert James Waller's best-selling novel The Bridges of Madison County (1992), published years before Patterson and Sharp met, turns on just such a letter from a mother to her children about a past love affair. In light of the phenomenal public success of that book, no one seeking to exploit the mass market for romantic fiction could possibly claim originality in the idea of a mother's letter explaining a past romance to her children.
Although there is apparently no precedent for a novel based on the relationship between Sharp and Patterson, that can hardly be the appropriate level of abstraction at which to assess the originality of Sharp's idea. As this Court has held in the past, "where . . . an idea consists in essence of nothing more than a variation on a basic theme . . . novelty cannot be found to exist." Murray v. Nat'l Broad. Co., 844 F.2d 988, 993 (S.D.N.Y. 1988). That is precisely the case here. Accordingly, since as a matter of law Sharp has failed to allege that Patterson appropriated an original or novel idea, her misappropriation claim must be dismissed.
V. Promissory Estoppel
In Count Five, Sharp restates her claim for her work on Cat Mouse in terms of promissory estoppel. (Id. ¶¶ 57-62.) Patterson argues that the Copyright Act preempts Sharp's promissory estoppel claim. (D. Br. 11-12.) To the extent that promissory estoppel recognizes rights equivalent to contractual rights distinct from those protected by the Copyright Act, a promissory estoppel claim may satisfy the "extra element" test, and thereby survive preemption. The Court need not decide whether Sharp's claim meets that standard, however, since Sharp fails to properly allege a promissory estoppel claim.
New York law is ambiguous as to whether promissory estoppel represents a distinct cause of action, or is merely a form of quasi-contract (as is unjust enrichment), and therefore allowable only in the absence of an express contract. This Court recently stated: "Promissory estoppel is a rule applicable only in the absence of an enforceable contract." Holmes v. Lorch, 329 F.Supp. 2d 516, 527 (S.D.N.Y. 2004) (internal quotation marks omitted), citing Cyberchron Corp. v. Calldata Sys. Dev., Inc., 831 F.Supp. 94, 112 (E.D.N.Y. 1993), aff'd in relevant part, 47 F.3d 39, 45 (2d Cir. 1995). But this Court has also found that whereas "several district courts have adopted the position that promissory estoppel is just another form of quasi-contract . . . the Second Circuit has at least implicitly treated the two [quasi-contract and promissory estoppel] as distinct theories."D'Accord Fin. Servs., Inc. v. Metsa-Serla Oy, No. 98 Civ. 5847, 1999 WL 58916, at *4 n. 5 (S.D.N.Y. Feb. 8, 1999), citingMacDraw v. Cit Group Equip. Fin., Inc., 157 F.3d 956, 960-61, 963-64 (2d Cir. 1998) (considering promissory estoppel claim while dismissing unjust enrichment claim as quasi-contract theory superseded by written agreement); City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 48-49 (2d Cir. 1988) (same);Cyberchron, 47 F.3d at 45 (rejecting the limitation of the promissory estoppel doctrine to cases where it substitutes for consideration and bars reliance on the statute of frauds).
But however a promissory estoppel claim is best characterized under New York law, plaintiff has failed to state a viable claim for it. "A cause of action for promissory estoppel under New York law requires the plaintiff to prove three elements: 1) a clear and unambiguous promise; 2) reasonable and foreseeable reliance on that promise; and 3) injury to the relying party as a result of the reliance." Kaye v. Grossman, 202 F.3d 611, 615 (2d Cir. 2000); Gurreri v. Assocs. Ins. Co., 669 N.Y.S.2d 629, 631 (2d Dep't 1998); Ripple's of Clearview, Inc. v. Le Havre Assocs., 452 N.Y.S.2d 447, 449 (2d Dep't 1982).
In Swerdloff v. Mobile Oil Corp., 427 N.Y.S.2d 266, 268 (2d Dep't 1980), the court asserted that the broad notion of promissory estoppel as enshrined in section 90 of the Restatement of Contracts Second has never been recognized by the New York Court of Appeals, but rather has only been recognized in more limited circumstances (e.g., in the context of charitable contributions). Swerdloff suggests that promissory estoppel is available in New York only in certain circumstances as a substitute for consideration, and as a bar to asserting the Statute of Frauds where it would be unconscionable to do so. The Second Circuit has rejected Swerdloff's construction of New York's promissory estoppel doctrine, instead relying on cases adopting a broader construction of promissory estoppel, which accommodates any promisee who can prove the above-listed three elements. Cyberchron, 47 F.3d at 45-46; Ripple's, 452 N.Y.S.2d at 449.
Sharp alleges that Patterson "represented to [her] that he would publicly acknowledge her contributions to Cat Mouse by dedicating Cat Mouse to her. Mr. Patterson further represented to [her] that he would compensate her for her writing the romance between the characters Alex and Christine and developing the character Christine for the novel Cat Mouse." (Compl. ¶ 58.) The alleged promise of some unspecified "compensation" is not sufficiently clear or unambiguous to state a claim for relief based on promissory estoppel. Moreover, by alleging consideration — that if Sharp performed certain work, Patterson would compensate her — Sharp's claim sounds in contract rather than promissory estoppel. Accordingly, the promissory estoppel claim will be dismissed.
VI. Copyright Claims
Sharp brings multiple Copyright Act claims against Patterson's various books. She alleges that Jack Jill, When the Wind Blows, Pop Goes the Weasel, 1st to Die, and The Lake House each "contains copies of creative sequences of words and phrases from" and "bears a substantial similarity to" Sharp's copyrighted letters. (Id. ¶¶ 74, 82, 90, 98.) Sharp further alleges that Cat Mouse "contains nearly exact copies of Ms. Sharp's unique work product which was contained in some of Sharp's [l]etters" and "bears a substantial similarity to Sharp's [l]etters." (Compl. ¶ 66.) She also alleges that Suzanne's Diary "mirrors the fundamental essence and structure of" and "bears a substantial similarity to" Sharp's book. (Id. ¶ 106.) Patterson argues (1) that certain of Sharp's copyright infringement claims should be dismissed as time-barred; and (2) that all of Sharp's copyright claims fail to properly allege the elements of a copyright infringement claim. (D. Br. 21-25; D. Reply Br. 8-10.)
Count Six pertains to Cat Mouse, Count Seven to Jack Jill, Count Eight to When the Wind Blows, Count Nine to Pop Goes the Weasel, Count Ten to 1st to Die, Count Eleven to Suzanne's Diary, and Count Twelve to The Lake House.
A. Statute of Limitations
Civil actions under the Copyright Act must be commenced "within three years after the claim accrued." 17 U.S.C. § 507(b). Patterson argues that the only relevant infringement for purposes of determining when the statute of limitations begins to run is the time at which Sharp had reason to know of Patterson's original infringing action. (D. Br. 23-24; D. Reply Br. 9-10) Sharp, on the other hand, argues that infringement is a continuing violation insofar as the work continues to be "distributed to the public." (P. Br. 21)
In arguing that the statute of limitations is exhausted three years from when the plaintiff reasonably learns of the first infringing act, Patterson relies on cases in which the plaintiffs sought declarations of co-ownership in a copyright. (D. Br. 23-24, citing Merchant v. Levy, 92 F.3d 51 (2d Cir. 1996);Dewan v. Blue Man Group Ltd. P'ship, 73 F.Supp. 2d 382 (S.D.N.Y. 1999); and Margo v. Weiss, 46 U.S.P.Q. 1066 (S.D.N.Y. 1998).) In this case, however, Sharp does not ask this Court to declare her as a co-owner in any of Patterson's copyrights. Rather, she seeks damages for Patterson's alleged infringement of her own copyrighted work.
The Second Circuit has made clear that claims of infringement and co-ownership are distinct. See Merchant, 92 F.3d at 57 n. 8. As this is an infringement action, "[e]ach act of infringement is a distinct harm giving rise to an independent claim for relief. . . . Recovery is allowed only for those acts occurring within three years of suit, and is disallowed for earlier infringing acts." Stone v. Williams, 970 F.2d 1043, 1049-50 (2d Cir. 1992); see Auscape Int'l v. Nat'l Geographic Soc'y, No. 02 Civ. 6441, 2004 WL 1798130, at *3-4 (S.D.N.Y. Aug. 12, 2004); Lennon v. Seaman, 63 F.Supp.2d 428, 443-45 (S.D.N.Y. 1999); Rosner v. Codata Corp., 917 F. Supp. 1009, 1017 (S.D.N.Y. 1996). Therefore, since, as Sharp alleges, each of Patterson's books at issue in this litigation "continues to be distributed to the public" (Compl. ¶¶ 67, 75, 83, 91, 99, 107, 115), Sharp's copyright infringement claims are timely. See Repp v. Webber, 914 F. Supp. 80, 83-84 (S.D.N.Y. 1996). The Second Circuit has rejected the continuous wrong doctrine, however, and thus any damages resulting from infringing acts that occurred more than three years prior to commencement of suit are time-barred. See Williams, 970 F.2d at 1049-50; Kregos v. Associated Press, 3 F.3d 656, 662 (2d Cir. 1993).
In contrast, "plaintiffs claiming to be co-authors are time-barred three years after accrual of their claim from seeking a declaration of copyright co-ownership rights and any remedies that would flow from such a declaration." Merchant, 92 F.3d at 56. For a co-ownership claim, the cause of action accrues, and consequently the statute of limitations begins to run "when a plaintiff knows or has reason to know of the injury upon which the claim is premised." Id. But see Auscape Int'l v. Nat'l Geographic Soc'y, No. 02 Civ. 6441, 2004 WL 1798130, at *4-8 (S.D.N.Y. Aug. 12, 2004).
B. Copyright Infringement
To establish copyright infringement, a plaintiff must show that she owns a valid copyright; that the defendant copied original elements of the copyrighted work; and that there is a substantial similarity between the protectible material in the plaintiff's and defendant's works. Feist Publ'n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991); Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 122-23 (2d Cir. 1994). Moreover, in light of this Court's understanding of the principle enshrined in Rule 8 — namely, to provide defendants fair notice of the claims against them — a plaintiff suing for copyright infringement may not rest on bare-bones allegations that infringement occurred. Rather, she must identify the "specific original work [that] is the subject of the claim" as well as "by what acts" the defendant infringed the copyright. Brought to Life Music, Inc. v. MCA Records, Inc., No. 02 Civ. 1164, 2003 WL 296561, at *1 (S.D.N.Y. Feb. 11, 2003); Plunket v. Doyle, 2001 WL 175252, at *4 (S.D.N.Y. Feb. 22, 2001); Kelly v. L.L. Cool J., 145 F.R.D. 32, 36 (S.D.N.Y. 1992). Even still, this Court may only dismiss a complaint if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Patel, 305 F.3d at 135 (internal quotation marks omitted).
Specifically, this Court has held that Rule 8 requires a plaintiff alleging copyright infringement to allege:
(i) which specific original work is the subject of the claim, (ii) that plaintiff owns the copyright in the work, (iii) that the copyright has been registered in accordance with the statute, and (iv) by what acts during what time the defendant infringed the copyright.Brought to Life Music, Inc. v. MCA Records, Inc., No. 02 Civ. 1164, 2003 WL 296561, at *1 (S.D.N.Y. Feb. 11, 2003).
Patterson argues that Sharp's copyright infringement claims are meritless because (1) Sharp does not provide "proper registration" for her copyrights; (2) Sharp does not point to "any letter, passage, or unique combination of words copied by Mr. Patterson," nor to "a single passage in any of Mr. Patterson's books that infringes her copyrights"; and (3) any copying is de minimis. (D. Br. 22; D. Reply Br. 8-9.)
1. Existence of a Valid Copyright
By producing copyright certificates of registration, Sharp effectively alleges valid copyrights in her letters and the draft of her book — the literary text from which Patterson allegedly copied. (Sheinmel Decl., Ex. 3; Compl. ¶¶ 64, 104.) Indeed, registration certificates "constitute prima facie evidence of the validity" of the copyrights and the originality of the protected work. Boisson v. Banian, Ltd., 273 F.3d 262, 268 (2d Cir. 2001). Thus, Sharp has adequately alleged that she owns a valid copyright in the letters and draft.
Although certificates of registration constitute presumptive proof of a valid copyright, the Copyright Act precludes this Court from granting statutory damages where "infringement of copyright in an unpublished work commenced before the effective date of its registration." 17 U.S.C. § 412. Whether or not Sharp registered her copyrights in time to preserve her right to any statutory damages stemming from Patterson's alleged infringements, Sharp has sustained her burden on this motion by simply alleging registration.
Aside from the two certificates of registration that refer to two versions of Along Came a Dream, Sharp's draft book, the remaining registration forms are vague in title, and therefore the Court cannot discern which certificates apply to which letter, or indeed, whether the certificates produced match up with any of the letters at all. One of the certificates refers to a work entitled My Dearest Cole, whose relevance to this litigation is unclear. The remaining certificates pertain to "[v]olume[s]" 1 through 69 of Dear James Patterson, which presumably refer to Sharp's letters to Patterson. Viewing the matter in the light most favorable to Sharp, the Court assumes for present purposes that Sharp registered copyrights in her letters. (Sheinmel Decl., Ex. 3.)
2. Copying/Access
Sharp must also allege that Patterson copied her works. "Actual copying may be established 'either by direct evidence of copying or by indirect evidence, including access to the copyrighted work, similarities that are probative of copying between the works, and expert testimony.'" Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132, 137 (2d Cir. 1998). Sharp alleges, and Patterson does not contest, that Patterson had access to Sharp's copyrighted letters — indeed the letters at issue are love letters Sharp originally wrote to Patterson. Sharp also alleges that Patterson had access to Sharp's draft book. (Compl. ¶ 104.) It is true, as Patterson argues, that Sharp does not allege that "she gave a copy of the book" to Patterson (D. Br. 6), but Sharp is under no obligation to specify in her complaint the nature of the defendant's alleged access. Especially in view of the further allegations regarding Sharp and Patterson's professional and personal relationship, Sharp has adequately alleged that Patterson had access to the book.
3. Substantial Similarity
Finally, Sharp must demonstrate substantial similarity between the protected work and the allegedly infringing work. To establish this aspect of her claim, Sharp must show "that the copying amounts to an improper or unlawful appropriation."Castle Rock, 150 F.3d at 137 (internal quotation marks omitted). The test for "substantial similarity" is the "ordinary observer test": "whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir. 1995) (quotations marks omitted; alteration in original). Where, as here, the works contain protectible and unprotectible elements, the Court must be "'more discerning' . . . [in order] to extract the unprotectible elements from our consideration and ask whether the protectible elements, standing alone, are substantially similar[,] [because] . . . [t]he plaintiff must show that the defendant appropriated the plaintiff's particular means of expressing an idea, not merely that he expressed the same idea. The means of expression are the 'artistic' aspects of a work; the 'mechanical' or 'utilitarian' features are not protectible." Id. (quotation marks omitted; emphasis in original); Yurman Design, Inc. v. Golden Treasure Imp., Inc., 275 F. Supp. 2d 506, 516-17 (S.D.N.Y. 2003).
The legal test of substantial similarity has qualitative and quantitative components. The qualitative component "concerns the copying of expression, rather than ideas[, facts, works in the public domain, or any other non-protective elements]," whereas the quantitative "concerns the amount of the work copied that is copied, which must be more than 'de minimis.'" Castle Rock, 150 F.3d at 137-38 (alterations in original); see Ringgold v. Black Entm't Television, Inc., 126 F.3d 70, 74-76 (2d Cir. 1997). The Second Circuit has noted that while courts often look to the amount of the copyrighted work that was copied to determine whether the allegedly infringing work falls below the quantitative threshold of substantial similarity, there are no bright line rules for what constitutes substantial similarity.See Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998). Substantial similarity must be decided case by case. At the pleading stage, however, the plaintiff must allege the "specific original work [that] is the subject of the claim" as well as "by what acts" the defendant infringed the copyright.Brought to Life Music, 2003 WL 296561, at *1.
With respect to her copyright infringement claims against Jack Jill, When the Wind Blows, Pop Goes the Weasel, 1st to Die, and The Lake House, Sharp points to her copyrighted letters as a whole, and conclusorily asserts that each of those novels "contains copies of creative sequences of words and phrases from" and "bears a substantial similarity to" her letters. (Compl. ¶¶ 74, 82, 90, 98, 114.) Although Sharp offers sixty-nine certificates of copyright registration for her letters, she fails to point to the "specific original work[s] [that are] the subject of [any of her] claim[s]." Brought to Life Music, 2003 WL 296561, at *1. Similarly, Sharp does not point specifically to any copying or acts of infringement by Patterson in these books. Although on this motion the Court must view all facts in the light most favorable to the plaintiff, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002) (internal quotation marks omitted; alteration in original). The obligation to identify the infringing and infringed works in a pleading is not satisfied by alleging a mass infringement of 69 different copyrighted letters by five different novels. Accordingly, Sharp's copyright infringement claims against Jack Jill, When the Wind Blows, Pop Goes the Weasel, 1st to Die, and The Lake House will be dismissed.
In Kelly, this Court found that the plaintiff had alleged with sufficient specificity which of his works were infringed where the plaintiff pointed to two of his songs as the subjects of his copyright infringement claim, distinguishingCole v. Allen, 3 F.R.D. 236 (S.D.N.Y. 1942), where the plaintiff "alleged that the defendant copied episodes and incidents from any of six books" and thereby failed to plead infringement with proper specificity. Kelly, 145 F.R.D. at 36 n. 3. This case is far closer to Cole than to Kelly.
With respect to Cat Mouse, Sharp alleges that Patterson's book "contains nearly exact copies of Ms. Sharp's unique work product" in and "bears a substantial similarity to" letters. (Compl. ¶ 66.) Similar to her claims against the previous several books, Sharp points generally to her sixty-nine letters as the subjects of her claim. (Id.) But as to Cat Mouse, Sharp points to three specific instances wherein Patterson allegedly copied passages from her August 27, 1996, and September 4, 1996, letters. (P. Br. 3-4.) See above at pp. 4-5. Although pointing to three excerpts from two letters from a pool of sixty-nine letters as "example[s]" of infringement is less than ideally specific, it is sufficient on a motion to dismiss to establish that Sharp's claim of copyright infringement is more than a "legal conclusion masquerading as [a] factual conclusion."Smith, 291 F.3d at 240. Whether Sharp can actually prove substantial similarity is a fact-intensive determination that must be made on a motion for summary judgment or at trial, not on a motion to dismiss for failure to state a claim.
Finally, Sharp alleges that Suzanne's Diary "mirrors the fundamental essence and structure of Sharp's [b]ook" (id. ¶ 106), which she identifies as the infringed work. Moreover, Sharp points to two specific instances of Patterson's alleged infringement of her book, in passages involving a surprise gift of a silver picture frame and the gift of a heart-shaped locket. (P. Br. 6-7.) Although these similarities between Sharp's book and Suzanne's Diary may ultimately stem from Sharp's and Patterson's shared experiences in their relationship, or may prove to be de minimis, these are factual questions not to be decided at this stage of the litigation. For purposes of the present motion, it is enough that Sharp has specifically identified the infringed work and the nature of Patterson's alleged copying.
As stated above, see note 7, the Court was unable to find documentary support for this assertion. For purposes of this motion, however, Sharp may rest on her assertion that her draft book includes such a passage.
Sharp also points to two instances where in Suzanne's Diary allegedly mirrors her letters. (P. Br. 6-7.) Although these allegations may be relevant to Sharp's misappropriation claim against Suzanne's Diary, or to now-withdrawn implied contract claim, see note 1, her copyright claim against Suzanne's Diary in Count Eleven identifies only her book as the infringed work.
In sum, whether Cat Mouse is substantially similar to Sharp's letters, and whether Suzanne's Diary is substantially similar to Sharp's book are ultimately factual questions. The Court cannot conclude as a matter of law, as Patterson urges, that the alleged copying is de minimis. While Sharp's copyright claims against Patterson's other books are too vague to survive a motion to dismiss, her claims against Cat Mouse and Suzanne's Diary are adequately pled.
VI. Unjust Enrichment
In Count Thirteen, Sharp alleges that Patterson was "unjustly enriched at [her] expense because Ms. Sharp cannot publish [her] book that is based upon the same life experience, ideas, and story that Mr. Patterson used [in Suzanne's Diary], and because Mr. Patterson has failed to compensate Ms. Sharp." (Compl. ¶ 122.) The complaint points to Patterson's alleged use of Sharp's book idea in particular (id.), although it also raises more general allegations about Patterson's use of Sharp's "work product and ideas" for his own "novels." (Id. ¶¶ 120-21.) Regardless against which of Patterson's works this charge is leveled, as Patterson argues (D. Br. 11-13), Sharp's unjust enrichment claim is preempted by the Copyright Act.
"The overwhelming majority of courts in this circuit have held that an unjust enrichment claim based upon the copying of subject matter within the scope of the Copyright Act is preempted."Boyle v. Stephens Inc., No. 97 Civ. 1351, 1998 WL 690816, at *6 (S.D.N.Y. Sept. 29, 1998) (collecting cases); see Logicom, 2004 WL 1781009, at *18; Netzer v. Continuity Graphic Assocs., Inc., 963 F. Supp. 1308, 1321-22 (S.D.N.Y. 1997). As Sharp concedes by making her copyright infringement claims (Compl. ¶¶ 63-118), the literary work meets the subject matter requirement of the two-prong preemption test. Moreover, unjust enrichment claims generally involve no more than the "acts of reproduction, adaptation, performance, distribution or display" that the Copyright Act already covers. Briarpatch, 373 F.3d at 305-06. Indeed, the rights Sharp seems intent on protecting in the unjust enrichment count involve the reproduction and adaptation of her work product (Compl. ¶¶ 119-123), rights protected by 17 U.S.C. § 106. Although proof of defendant's enrichment is required for an unjust enrichment claim, Clark v. Daby, 751 N.Y.S.2d 622, 623 (3d Dep't 2002), but not for a copyright infringement claim, this additional burden does not render the state law claim "qualitatively different" from the rights protected by copyright law. Sharp alleges only that Patterson was enriched from his unauthorized use of Sharp's work, a claim equivalent to the assertion of damages from the copying of materials protected by the Copyright Act. The claim is therefore preempted. Briarpatch, 373 F.3d at 306-07; see Boyle, 1998 WL 690816, at *6; Am. Movie Classics, 922 F. Supp. at 934.
CONCLUSION
For the reasons stated, the motion to dismiss is granted as to Counts Three (misappropriation of novel and original literary ideas), Four (implied contract regarding Suzanne's Diary), Five (promissory estoppel), Seven through Ten and Twelve (copyright infringement), and Thirteen (unjust enrichment), and denied as to Counts One and Two (breach of express or implied contract as to Cat Mouse), and Six and Eleven (copyright infringement as to Cat Mouse and Suzanne's Diary).
SO ORDERED.