Citations
- 916 F. Supp. 333
Full opinion text
KAPLAN, District Judge.
Defendants’ motion to dismiss for lack of subject matter turns on whether a dispute over a publishing contract arises under the Copyright Act so as to give rise to federal jurisdiction under 28 U.S.C. § 1338(a). This motion is heard on remand from the Second Circuit, which set forth a new three-part test for assessing jurisdiction in these circumstances. Schoenberg v. Shapolsky, 971 F.2d 926 (2d Cir.1992). While opposing dismissal, plaintiff seeks leave to amend his complaint to add a claim for fraud in the inducement.
Facts
This action, which has a long history, is a conflict between plaintiff Harris Schoenberg, the author of a book entitled A Mandate for Terror: The United Nations and the PLO, and the defendants, who all were involved in a disputed contract to publish plaintiffs book. The disputed contract was signed by the plaintiff and the defendant Steimatzky Publishing of North America, Inc. (“Steimatzky Publishing”) in July 1985. In 1987, before the book was published, defendant Shapolsky Publishing Inc. (“SPI”) assumed all assets and liabilities of Steimatzky Publishing. Ian Shapolsky was the sole owner of Steimatzky Publishing and was the president and sole stockholder of SPI.
The July 1985 contract provided, inter alia, that Steimatzky obtained the exclusive right to publish worldwide for the term of the copyright in exchange for an advance and certain royalties based on the sale of the book. (See Shapolsky Deck Ex. 4).
After a number of delays, the reasons for which are disputed and which are blamed by each side on the other, the book was published in 1989. Plaintiff was aware that SPI, rather than Steimatzky Publishing, would be publishing his book, and he says that he agreed, albeit reluctantly, to the change. (Meloni Deck Ex. 6, Steimatzky Dep., 2/7/95, at 41, 4