SELYA, Circuit Judge.
James B. Royal, plaintiff-appellant, felt that he was treated less than royally by his quondam employer, Leading Edge Products, Inc. (Leading Edge), defendant-appellee. He sued, unsuccessfully, in federal district court, and now appeals.
Inasmuch as the district court disposed of this case on Leading Edge's motion to dismiss, Fed.R.Civ.P. 12(b)(1), we accept the factual averments of the complaint as true, and construe those facts in the light most congenial to the appellant's cause. Guessefeldt v. McGrath, 342 U.S. 308, 310, 72 S.Ct. 338, 340, 96 L.Ed. 342 (1952); Chongris v. Board of Appeals, 811 F.2d 36, 37 (1st Cir.), cert. denied, ___ U.S. ___, 107 S.Ct. 3266, 97 L.Ed.2d 765 (1987). We eschew, however, any reliance upon "bald assertions, unsupportable conclusions, [or] opprobrious epithets." Id. (citation omitted). Dismissal can be justified only if it clearly appears that no colorable hook exists upon which subject matter jurisdiction can be hung.
The defendant is a Massachusetts corporation involved in various facets of the computer industry. According to the complaint, Leading Edge hired Royal in mid-1982 as manager of word processing development. The complaint does not state whether or not there was a written employment contract. In February of 1983, while still in defendant's employ, Royal and a co-worker, one Phil Florence, entered into a royalty agreement with the company. See Appendix. In essence, the pair agreed to develop a distinctive "software package" in exchange for stipulated royalty payments based on future sales. In the appellant's words, "[t]he contractual relationship established between the parties by virtue of the royalty agreement was entirely separate and distinct from their employment relationship." Complaint ¶ 7.
Appellant has not been paid royalties for any period after April 29, 1986. Under the royalty contract, no further royalties would be due if he was fired for cause; but, if he was discharged "for no cause," then he would be entitled to royalties for a period of "five (5) years from date of termination." The complaint alleges that he was terminated "without cause." Complaint ¶ 11.
The plaintiff's pleading limned four causes of action, viz:
There is no diversity of citizenship or other basis for federal jurisdiction apart from the existence vel non of some cognizable federal question. Royal concedes that the last three counts of his complaint are dependent entirely on state law, and present no uniquely federal aspects. He endeavors to forge his jurisdictional hook solely on the anvil of Count I. As the plaintiff envisions the universe, the district court had subject matter jurisdiction over that count by virtue of 28 U.S.C. § 1338(a),
The plaintiff asserts that his claim for a declaratory judgment is rooted in federal copyright law, thus triggering the jurisdictional snare of § 1338(a). But, that is a ketchup bottle of an argument: it looks full at first glance, but it is surpassingly difficult to get anything out of it.
It is settled beyond peradventure that an action does not "arise under" the federal copyright laws merely because it relates to a product that is the subject of a copyright. See Topolos v. Caldewey, 698 F.2d 991, 993 (9th Cir.1983). The question of whether the suit "arises under" the copyright law is considerably more sophisticated. The most frequently cited test is that formulated by the Second Circuit, along the lines that:
T.B. Harms Co. v. Eliscu, 339 F.2d 823, 828 (2d Cir.1964), cert. denied, 381 U.S. 915, 85 S.Ct. 1534, 14 L.Ed.2d 435 (1965). Royal acknowledges that Harms sets forth the applicable standard, but urges that the first count of his complaint "asserts a claim
A brief explanation is in order. The Copyright Act defines a "work made for hire" in relevant part as one "prepared by an employee within the scope of his or her employment." 17 U.S.C. § 101.
17 U.S.C. § 201(b).
Royal admits that the copyright to the software package inured to his employer, Leading Edge, by virtue of the work-made-for-hire doctrine. He contends, however, that appellee's ensuing breach of the royalty agreement — the refusal to pay Royal royalties past the date he was cashiered — entitled him to rescind the agreement and to regain his ownership rights. But in our view, there is less to this argument than meets the eye. Royal's assertions grow out of his purported contract rights and "arise under" state law. The work-made-for-hire doctrine is, at best, only tangentially implicated. Indeed, it is not even mentioned in the complaint.
At bottom, there are only two possibilities: if the royalty agreement stands, then the plaintiff's sole remedy for the breach of it would be money damages — and the Copyright Act need not be construed. If, however, as plaintiff suggests, the royalty agreement is subject to rescission because of defendant's material breach thereof, then that agreement would vanish. We would be left with no "written instrument" signed by the parties, 17 U.S.C. § 201(b), and the employer would be "considered the author" in the absence of such an instrument. Id. Either way, appellant would have no statutorily-based ownership rights. So, as to the jurisdictional question, Royal finds himself in a classic no-win situation.
In an effort to avoid the seemingly inexorable result of this logic, plaintiff points to some indications in a few district court cases that, since an employer's status qua copyright proprietor can be conceptualized as stemming from a presumed agreement between employer and employee — "I will give you a job; you will give me the copyright" — then a breach of that "unspoken bargain" would entitle the employee to rescind the employment agreement and reclaim the copyright. See, e.g., Black v. Pizza Time Theatres, Inc., 1983 Copyright L.Rep. (CCH) ¶ 25,569 (N.D.Cal.1983) [Available on WESTLAW, DCT database]; Brown v. Cosby, 433 F.Supp. 1331, 1343 (E.D.Pa.1977); Hughey v. Palographics Co., 189 U.S.P.Q. (BNA) 527, 529-31 (D.Colo.1976). See also 1 M. Nimmer, Nimmer On Copyright § 5.03[E] (1986). Yet, we need not probe too deeply into the somewhat dubious provenance of this theory. Assuming without deciding that such an exception may come into play in a proper case, Royal does not profit.
In this instance, there is scant reason to imply any arrangement between employer and employee as to ownership of the copyright. The royalty agreement makes clear that the trade-off for the proprietary copyright interest is not a job, but the payment of royalties. See Appendix. That unambiguous compact occupies the field. It makes explicit provision with respect to what consequences will flow from termination of the author's employment — whether for cause, without cause, or in the event of Royal's voluntary departure. See id. Reversion of the copyright is not among those consequences. Where, as here, the contract itself is clear, courts must be loath to presume added promises out of thin air. Cf., e.g., Mathewson Corp. v. Allied Marine Industries, Inc., 827 F.2d 850, 855-56 (1st Cir.1987); Allied Communications Corp. v. Continental Cellular Corp., 821 F.2d 69, 73-74 (1st Cir.1987). The express terms of Royal's bargain with the company
Furthermore, the plaintiff has described the royalty agreement and the employment agreement as being separate and distinct. Complaint ¶ 7. He has averred not that Leading Edge committed a material breach of the latter, but that it fractured the former. Not even the frail strands by which Royal's theory hangs extend so far: there is neither authority nor precedent for the assertion that a breach of a royalty agreement alone catalyzes an implicit exception to the work-made-for-hire doctrine. Taking the facts which appellant has alleged at face value, they are insufficient to animate his "unspoken bargain" asseveration.
The crowning blow, perhaps, is the generic obligation of a court to "decide whether a case arises under the copyright laws by focusing on the nature of the principal claim asserted by the plaintiff." Topolos v. Caldewey, 698 F.2d at 993. It can scarcely be argued that appellant's claim, in its very nature and essence, is one for breach of contract, that is, a suit protesting Leading Edge's supposed failure to honor the five-year royalty schedule once it had shown Royal the door. A determination of the controversy depends in the first instance upon whether or not there has been compliance with the terms of the royalty agreement, and if not, what should be the effect of that noncompliance as a contractual matter. In that sense, the situation is analogous to Beghin-Say International Inc. v. Rasmussen, 733 F.2d 1568 (Fed.Cir.1984), a case where the plaintiff sued for a declaration that the assignment of certain U.S. patent applications was "valid" under 35 U.S.C. § 261 and sufficed to vest in it "all right to the invention(s) set forth in those applications." Id. at 1570. The district court dismissed for want of subject matter jurisdiction, holding that "the action did not arise under any Act of Congress relating to patents within the meaning of 28 U.S.C. § 1338(a)." Id.
We mention, too, the decision of the Sixth Circuit in Combs v. Plough, Inc., 681 F.2d 469 (6th Cir.1982) (per curiam). There, Combs, an inventor, obtained a patent. He assigned it to his employer and executed a release. Five years later, he sued for patent infringement. He also prayed for a declaration that the release and assignment were void and for an accounting. The Court of Appeals upheld the dismissal of Combs's suit for want of subject matter jurisdiction, holding that his action was not one "arising under" 28 U.S.C. § 1338(a). 681 F.2d at 470-71. The court noted the usual rule that, "where an action is brought to enforce, set aside, or annul a contract, the action arises out of the contract, and not under the patent laws, even though the contract concerns a patent right." Id. at 470 (citations omitted). See also Ausherman v. Stump, 643 F.2d 715, 718 (10th Cir.1981) (similar).
As we see it, the plaintiff has asserted no colorable claim of right under the copyright laws. After all, suits which seek royalties or the enforcement of remedies in respect of contracts permitting the use of patents have frequently been held not to "arise under" § 1338(a) in a jurisdictional sense. E.g., Luckett v. Delpark, Inc. 270 U.S. 496, 502, 46 S.Ct. 397, 399, 70 L.Ed. 703 (1926); Schwarzkopf Development Corp. v. Ti-Coating, Inc., 800 F.2d 240, 243-44 (Fed.Cir.1986). The same salutary principle, we think, applies to an action like this one, seeking remediation in respect to an allegedly broken royalty agreement anent copyrightable material.
We need go no further.
The following points constitute an Agreement: