Unpublished Disposition, 872 F.2d 427 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 872 F.2d 427 (9th Cir. 1989)

Michael FRENCHIK, Plaintiff-Appellant,v.Lionel RICHIE, Brockman Music, Motown Record Corporation,Carlos Rios, Jody E. Graham, Manatt, Phelps,Rothenberg & Phillips, Defendants-Appellees.

No. 87-6484.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 5, 1988.Decided April 3, 1989.

Before CYNTHIA HOLCOMB HALL and LEAVY, Circuit Judges, and PHILIP M. PRO*  District Judge.

MEMORANDUM** 

Michael Frenchik appeals from the district court's dismissal of his complaint for lack of subject matter jurisdiction. We reverse and remand.

We review de novo the district court's dismissal for lack of subject matter jurisdiction. Vestron, Inc. v. Home Box Office, Inc., 839 F.2d 1380, 1381 (9th Cir. 1988).

Frenchik filed a complaint that raised seven causes of action: copyright infringement, federal unfair competition, state unfair competition, malpractice, rescission, reformation, and conversion. Frenchik claimed that appellees' publication of a certain song, "Dancing on the Ceiling," infringed his rights in a musical composition. He further claimed that an agreement whereby he transferred any and all rights to "Dancing on the Ceiling" is invalid.

We determine whether an action arises under federal copyright law by applying the well-pleaded complaint rule. Vestron, 839 F.2d at 1381. If Frenchik's complaint makes out a bona fide infringement claim, then we have jurisdiction. Id. Frenchik pleads the elements of copyright infringement: copyright ownership, unauthorized copying and distribution for exhibition by the defendant. Effects Assocs., Inc. v. Cohen, 817 F.2d 72, 73 (9th Cir. 1987). He also seeks remedies provided by federal copyright law: injunction, damages, and profits. These allegations are sufficient to establish federal jurisdiction. Vestron, 839 F.2d at 1382.

That Frenchik refers to an agreement concerning his rights to "Dancing on the Ceiling" does not turn his infringement claim into a contract claim. Frenchik claims that the agreement is invalid. In essence, he anticipates a possible defense. It may turn out that Frenchik has abandoned any claim he might have that "Dancing" infringes on his rights. However, jurisdiction is based on a well-pleaded complaint and is not defeated by anticipating potential defenses raising questions of state law. Effects, 817 F.2d at 73.

Furthermore, Frenchik's causes of action for rescission and reformation are not antithetical to his suit for infringement. See id. To the contrary, these claims support his contention that appellees' use of Frenchik's musical composition was not authorized.

Because there is no fatal flaw on the face of the complaint that purports to assert an infringement action, the district court had jurisdiction. If affidavits or other materials reveal that this claim is spurious, then the district court may dismiss for failure to state a claim. Vestron, 839 F.2d at 1382.

We do not reach any of the other issues raised in this appeal.

REVERSED AND REMANDED.


 *

Honorable Philip M. Pro, United States District Judge for the District of Nevada, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3