T. B. Harms Co. v. Eliscu

339 F.2d 823 (2d Cir. 1964)



An action "arises under" the Copyright Act if and only if the complaint is for a remedy expressly granted by the Act, e.g., a suit for infringement or for the statutory royalties for record reproduction, 17 U.S.C.S. § 101, or asserts a claim requiring construction of the Act, or, at the very least and perhaps more doubtfully, presents a case where a distinctive policy of the Act requires that federal principles control the disposition of the claim. The general interest that copyrights, like all other forms of property, should be enjoyed by their true owner is not enough to meet this last test.


Plaintiff sued defendants for copyright infringement. Plaintiff alleged its own New York incorporation and did not allege the citizenship of defendants. On appeal, the court held that the district court was correct when it treated jurisdictional issue as turning solely on whether the complaint alleged any act or threat of copyright infringement. The plaintiff did not do so in its complaint and, therefore, plaintiff did not have a proper action.


May a claim that fails to assert an act or threat of copyright infringement be dismissed?




Something should be said as to cases in this circuit deciding on the merits copyright claims apparently not involving infringement. There has been discussion whether the assumption of jurisdiction in Rossiter v. Vogel, 134 F.2d 908 (2 Cir. 1943), was properly rested on a basis similar to that suggested in this opinion with respect to De Sylva, at 570-571 (1963). But a glance at the complaint in that case, which relied on diverse citizenship as well as on what is now 28 U.S.C. § 1338, shows that the problem of federal jurisdiction was hardly troublesome and indicates why it went unmentioned. The equally undiscussed assumption of jurisdiction in Venus Music Corp. v. Mills Music, Inc., 261 F.2d 577 (2 Cir. 1958), cannot be thus explained, since there was no diversity. But the jurisdictional problem was doubtless obscured by the insistence of both parties that this action was for copyright infringement, and by the surface similarity with Rossiter v. Vogel, supra, as that case stands in the reports. Whether or not the complaint in Venus presented questions of copyright law sufficient to meet the criteria we have outlined --  an issue on which we express no opinion --  the complaint here does not.

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