The U.S. Court of Appeals for the Second Circuit, in a case decided on pre-emption, affirmed the dismissal of the basis of copyright complaint for unauthorized publication, tortious interference and conversion brought by an author against three book publishers and adult film star. Dianne Miller v. Holtzbrinck Publishers LLC, MacMillan Publishers Inc., Saint Martin’s Press, Heather Hunter, Michelle Valentine Case No. 09-0919 (2nd Cir., May 14, 2010) (Underhill, Distr. J. sitting by designation).
After the publishers released a book “Insatiable: The Rise of a Porn Star,” purportedly written by Hunter but that Miller claims and was in fact written by her at the adult film star’s request, Miller filed suit, alleging unauthorized publication, tortious interferences and conversion. Miller alleged that Hunter agreed to pay her $25,000 for ghost-writing the book, but never intended to make good on the deal and that the publishers knew that Hunter had not written the book, but nevertheless published it without regard to rights of the actual author, i.e., Miller.
After district court dismissed the claims, including the conversion and tortious interference claims, Miller appealed. Miller argued that the Copyright Act did not preempt her tortious interference or conversion claims.
The 2nd Circuit, viewing unauthorized publication as the “gravamen of [her] complaint,” found that the rights Miller was trying to protect were “coextensive with an exclusive right already safeguarded by the [Copyright] Act,” and were therefore preempted.
In terms of Miller’s fraud claims against Hunter, the court noted that although Miller did not expressly plead a breach of contract, “the essence of her fraud claim was that Hunter did not intend to perform an oral agreement” between the two. On this issue the 2nd Circuit agreed with the district court that Miller did not meet the pleading standard for fraud, despite seeking special damages, and “failed to allege any actual pecuniary loss stemming from the fraud.” Thus, the 2nd Circuit concluded that the district court properly dismissed the fraud claims.
