BY:Michael I. Rudell
(Originally published in the Entertainment Law column in the New York Law Journal, December 17, 2004.)
In the mid 1990’s, the best-selling author James Patterson became romantically and professionally involved with Christina P. Sharp. The termination of their relationship resulted in an action by Sharp claiming breach of contract, breach of implied contract, misappropriation of novel and original ideas, promissory estoppel, copyright infringement and unjust enrichment. The Southern District has upheld in part and denied in part Patterson’s motion to dismiss the amended complaint.1
In 1995, Patterson responded to a letter from Sharp written after she had read an article about him. Following telephone and mail communications, the two met in person in June of 1996. They became romantically involved and ultimately planned to marry. Sharp alleges that, in tandem with their romantic relationship, they developed a close professional relationship in which Patterson discussed problems with his writing and Sharp helped by acting as a sounding board and making suggestions. They also discussed Sharp’s aspirations to write a book and her ideas for that project. In April of 1997, Patterson terminated his romantic and professional relationship with Sharp.
In 1997, Patterson published “Cat & Mouse,” a novel featuring detective Alex Cross, the hero of earlier books written by Patterson. It became a best seller. According to Sharp’s complaint, Patterson had sought Sharp’s help on this book, telling her he was “unable to write romantic passages between [the book’s] central characters, Cross and Christine Johnson,” and was experiencing particular difficulty with Christine’s character. Sharp alleges that Patterson asked her to write the romantic scenes and to develop Christine’s character and offered her, in exchange, compensation by publicly acknowledging her contributions through a book dedication. She also alleges that at the time she accepted Patterson’s offer, she and he had plans to marry and that, when married, she would be compensated for her contributions by sharing in the proceeds of “Cat & Mouse” as marital community property.
According to Sharp, she presented her work to Patterson through conversations and letters that contained short literary passages and bullet point phrases, ideas and character development. She claims that without her knowledge, consent and authorization, Patterson incorporated many of her ideas and work product into the published version of “Cat & Mouse.” In this regard, she cites instances of parallel passages, all involving romantic encounters between Cross and Johnson.
Sharp further alleges that she created the original idea to create a fictional romantic novel in the form of a letter from her mother to her children explaining her past courtship and romance with a man. The letter incorporated a series of love letters between the mother and her lover and narrative passages containing the letters. Sharp disclosed this idea to Patterson and, according to Sharp, Patterson told her that she should write the story of her book as their romance actually had happened. The love letters Sharp uses in her book are purportedly the actual letters between Sharp and Patterson.
Sharp claims that she began her book with the expectation that Patterson would help her revise, complete and publish it. She also claims that Patterson recommended an agent to her who he said could assist in the publication of her book. Sharp sent the draft of her book to that agent.
Sharp completed her book after her relationship with Patterson ended. According to Sharp, without her knowledge, consent or authorization, Patterson used her idea and work product to create “Suzanne’s Diary for Nicholas” which was published in July of 2001. Sharp alleges that this book mirrors the story line of and contains novel ideas set forth in her book.
At the time her relationship ended, Sharp had written only a preliminary draft of her book. Sharp contends that Patterson created “Suzanne’s Diary” based upon Sharp’s communication to Patterson of her idea for the general outline of the story. In her brief, Sharp points to two specific instances where “Suzanne’s Diary” mirrors passages or events contained in her preliminary draft.
Finally, Sharp alleges that Patterson used her ideas and work product, including passages from her letters to him, without her knowledge, consent and authorization in five other books. She alleges that each of these works contains copies of creative sequences of words and phrases from, and bears substantial similarity to Sharp’s copyrighted letters. Patterson has neither publicly acknowledged nor compensated Sharp for her contributions to his works.
Patterson made a motion to dismiss Sharp’s complaint with prejudice. In addressing this motion, the Court first analyzes Sharp’s breach of contract claim. She alleges that she agreed to write the romance between the Alex and Christine characters and develop the character Christine for “Cat & Mouse” in exchange for Patterson’s agreement to share the financial proceeds from the book and to publicly acknowledge her contribution by dedicating the book to her. Patterson argues that Sharp fails to plead the elements of a breach of contract claim and that it is preempted by the Copyright Act.
The Court indicates that the complaint adequately alleges the elements of a breach of contract claim under New York law: (1) the existence of a contract, (3) plaintiff’s performance on the contract, (3) defendant’s breach of contract and (4) resulting damages. The liberal pleading standards which require only that a party assert a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment creates a “forgiving arena” in which Sharp’s contract claim is sufficient. The decision states that, although some portions of the complaint support Patterson’s characterization, others set out a straightforward claim of a contract to exchange writing services for a financial consideration.
The Court also concludes that this breach of contract claim is not preempted by the Copyright Act. The facts contained in the complaint, viewed in the light most favorable to Sharp, allege the existence of a valid contract by which she would work on the “Cat & Mouse” romance in exchange for consideration.
Accordingly, despite any other descriptions of the professional arrangement between Patterson and Sharp, and notwithstanding any other claims made in the complaint, the breach of contract claim validly alleges the existence of a contract that constitutes a privately created right distinct from Sharp’s rights under the Copyright Law.
In her second count, Sharp alleges breach of an implied contract for her work on “Cat & Mouse.” The Court indicates that the distinction between an express contract and an implied contract is simply a descriptive difference relating to how the contract was formed. Although the theories of an express contract and a contract implied in fact are mutually exclusive, the Federal Rules do not require consistency in pleading, and, therefore, Sharp may claim alternatively on an express contract and on an implied contract. Under the Federal Rules, it is sufficient to allege that a contract existed and that it was breached by defendant. Whether sufficient evidence exists to permit a jury to find either an express or implied contract can be tested by a motion for summary judgment. Accordingly, the Court denies Patterson’s motion to dismiss Sharp’s breach of express or implied contract claim.
Sharp’s third claim alleges that Patterson misappropriated her novel and original literary idea to write a fictional romance novel in the form of a letter from a mother to her children explaining her past courtship with a man. The Court indicates that as a matter of law, Sharp’s idea to write a novel revolving around a series of love letters is neither novel nor original, at whatever level of generality the idea is assessed, and therefore her misappropriation claim is dismissed.
In analyzing Sharp’s promissory estoppel claim, the Court indicates that under New York law, such a cause of action requires plaintiff to prove (1) a clear and unambiguous promise, (2) reasonable and foreseeable reliance on that promise, and (3) injury to the relying party as a result of the reliance. Here, the alleged promise of some unspecified compensation is not sufficiently clear or unambiguous to state a claim for relief based upon promissory estoppel. Moreover, by alleging consideration — that if Sharp performed certain work, Patterson would compensate her — Sharp’s claim sounds in contract rather than promissory estoppel. Accordingly, this claim is dismissed.
Sharp alleges multiple Copyright Act claims against Patterson’s various books. The Court indicates that it may only dismiss a complaint if it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Sharp produced copyright certificates of registration, which constitute prima facia evidence of the validity of the copyrights and the originality of the protected work. Thus, she adequately alleges that she owns a valid copyright in the letters and the draft. Further, Sharp has adequately alleged that Patterson had access to material she wrote. To establish substantial similarity, Sharp must show that the copying amounts to an improper or unlawful appropriation. After analyzing the specific aspects of this case, the Court indicates that whether “Cat & Mouse” is substantially similar to Sharp’s letters, and whether “Suzanne’s Diary” is substantially similar to Sharp’s book, ultimately are factual questions. The Court cannot conclude as a matter of law that the alleged copying is de minimis. Although Sharp’s copyright claims against Patterson’s other books are too vague to survive a motion to dismiss, her claims against “Cat & Mouse” and “Suzanne’s Diaries” are adequately pled.
The Court does grant Patterson’s motion to dismiss Sharp’s unjust enrichment claim, holding that it is preempted by the Copyright Act. It indicates that the overwhelming majority of courts in the Southern District have held that an unjust enrichment claim based upon the copying of subject matter within the scope of the Copyright Act is preempted. Sharp alleges only that Patterson was enriched from his authorized use of Sharp’s work, a claim equivalent to the assertion of damages from the copying of materials protected by the Copyright Act.
Accordingly, Patterson’s motion to dismiss is granted as to Sharp’s claims for a misappropriation of novel and original literary ideas, implied contract regarding “Suzanne’s Diaries,” promissory estoppel, copyright infringement and unjust enrichment, but denied as to claims for breach of express or implied contract as to “Cat & Mouse” and copyright infringement as to “Cat & Mouse” and “Suzanne’s Diaries.”
1 Sharp v. Patterson, 03 Civ. 8772, 2004 WL 2480426 (S.D.N.Y. Nov. 3, 2004)