PALMIERI, District Judge.
Plaintiff, alleging that he collaborated with defendants Mure and Wolf in the creation of a musical composition, seeks a declaration of his rights as co-author of the composition. Pursuant to an agreement with Mure and Wolf, defendant Saxon Music Corp., the publisher, procured a copyright for the work. See 17 U.S.C. § 9. The certificate of copyright registration gives authorship credit to Mure and Wolf. Plaintiff claims that he is entitled to an assignment of an interest in the copyright and an accounting for a share of the proceeds earned by the composition. No issue as to the validity or the infringement of the copyright is presented and it is conceded that diversity of citizenship is lacking. On this set of facts, the court does not have jurisdiction of the case as one "arising under any Act of Congress relating to * * * copyrights." 28 U.S.C. § 1338(a);
Although the defendants, prior to trial, failed to challenge plaintiff's jurisdictional allegations, see Fed.R.Civ.P. 8 (a), 12(b), 12(g), 28 U.S.C., it remains the duty of the court to refuse to proceed upon a record which does not disclose a basis for federal jurisdiction. Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan, 1884, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462; see Hart & Wechsler, The Federal Courts and The Federal System 719 (1953). At trial, pursuant to the suggestion of the court, defendants moved under Fed.R.Civ.P. 12(h) for dismissal of the action.
In support of the averment that he is properly in this court, plaintiff has referred to a line of decisions recognizing the standing of an equitable owner of a copyright to sue for infringement. Cohan v. Richmond, 2 Cir., 1936, 86 F.2d 680; Bisel v. Ladner, 3 Cir., 1924, 1 F.2d 436; Wooster v. Crane & Co., 8 Cir., 1906, 147 F. 515; Manning v. Miller Music Corp., D.C.S.D.N.Y.1959, 174 F.Supp. 192; Southern Music Publishing Co. v. Walt Disney Productions, D.C.S.D.N.Y.1947, 73 F.Supp. 580. But see Measurements Corp. v. Ferris Instrument Corp., 3 Cir., 1947, 159 F.2d 590; Dill Mfg. Co. v. Goff, 6 Cir., 1942, 125 F.2d 676; Binger v. Unger, D.C.S.D.N.Y. 1946, 6 F.R.D. 44. Power to adjudicate
The fundamental and obvious distinction between the cases upon which the plaintiff relies and the situation presented here is that Harrington does not state a claim for infringement.
Plaintiff has urged that to deprive him of a federal forum, the court must rely upon an untenable distinction between wrongful acts of a co-author and wrongful acts of a stranger to the creation of the copyrighted work. If a stranger exploits the composition and deprives the creator of his right to exclusive enjoyment of the fruits of his efforts, an infringement action will lie. But if a co-author, one who cannot be charged with infringement,
To summarize, the fact that plaintiff Harrington alleges co-authorship of a copyrighted composition does not bring this claim within the exclusive jurisdiction of the federal district court "in copyright cases." The nature of the disputed facts and the character of the relief to which plaintiff may be entitled indicate that his action is cognizable in the state court. See Becher v. Contoure Laboratories, Inc., supra. That court is fully competent to resolve the question as to whether plaintiff collaborated in the creation of the musical composition, and, if that question is resolved in plaintiff's favor, to grant plaintiff all the relief he seeks. See Jerry Vogel Music Co. v. Miller, Inc., supra. No problem of piecemeal litigation is presented, cf. Hartley Pen Co. v. Lindy Pen Co., supra, and no other persuasive reason has been shown for departing from the established construction of the extent to which Congress has authorized original federal jurisdiction of controversies in which copyright questions are presented.
In view of my conclusion that the jurisdiction of this court does not extend to plaintiff's claim for a declaration of his rights as co-author, I do not reach the question whether the court has ancillary or pendent jurisdiction of the claims based upon allegations of unfair competition and of plaintiff's performance as a principal artist on the recording of the composition.
"The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, copyrights and trade-marks. Such jurisdiction shall be exclusive of the courts of the states in patent and copyright cases."
"17 U.S.C. § 101 provides that one who infringes the copyright in any protected work shall be liable to `pay to the copyright proprietor' damages. Section 112 provides for injunctive relief to `any party aggrieved' but the `party aggrieved' must have the right to maintain a suit under Section 101 as a `copyright proprietor' in order to be entitled to such injunctive relief."