MEMORANDUM
Plaintiff, Natalie Donna, and defendant, Peter Larsen, are co-authors of a children’s book entitled Boy of the Masai, the former having provided the text and the latter illustrative photographs. The work was published in January, 1964, by defendant, Dodd, Mead & Company (“Dodd, Mead”). Subsequently, Larsen and his wife, also a defendant here, collaborated on three books entitled *430 Boy of Nepal, Boy of Dahomey and Boy of Bolivia, using substantially the same format as the original book. These works were also published by Dodd, Mead.
According to the complaint, Donna and Larsen are “sole proprietors” of the copyright on Boy of the Masai. (Complaint, par. 8.) Donna claims that publication of the three later works was unlawful and seeks damages for 1). infringement of her copyright on Boy of the Masai; 2) conspiracy to infringe the copyright; and 3) unfair trade practices and unfair trade competition. Dodd, Mead 1 moves to dismiss the complaint on the ground that the first and second causes of action do not state a claim upon which relief can be granted, because Larsen is a joint owner of the copyright and the other defendants are his licensees, and that the third claim must be dismissed for lack of jurisdiction.
It is settled law, which Donna does not dispute, that a joint owner of a copyright and his licencees cannot be liable to a co-owner for copyright infringement
(see
Edward B. Marks Music Corp. v. Jerry Vogel Music Co.,
(“Marks”),
Although traditionally creation of a joint work required a common design which existed before the elements of the work were produced, that requirement has been considerably eroded. Nimmer on Copyright § 69. In
Marks, supra,
the Court of Appeals for this Circuit held that a joint work can result from the labors of persons who are strangers to each other and who work at different times, if each contributor contemplates that his work will form part of a whole to' which someone else will also contribute.
See also
Shapiro, Bernstein & Co., Inc. v. Jerry Vogel Music Co., Inc.
(“Melancholy Baby”),
Applying these rules to the present case, it is clear that Boy of the Masai is a joint work. Although Larsen’s photographs were not taken with Donna’s text specifically in mind, it appears that they may have been intended from the start to become part of a joint work with text from another source. Donna’s own affidavit states that she was informed by Larsen before she worked with him that he had already submitted the photographs to a publisher and been rejected. (Affidavit of January 22, 1974, par. 4.) If so, their subsequent collaboration would fall squarely within the Marks — Melancholy Baby rule. However, even if Larsen had no such intention when he took the photographs, Boy of the Masai is a joint work under the 12th Street Rag approach, because once Larsen and Donna reached agreement on its creation it is evident that Larsen had the intention that his photographs by subsumed into their joint effort. At the very least, Donna’s contribution, which came into being solely to complement Larsen’s photographs, is jointly owned and can be li *431 censed without her consent, subject only to a duty to account. Nimmer on Copyright § 73.1.
Donna concedes that, under the case law discussed above,
“Boy of the Masai
would probably be considered a joint work”. (Memorandum at 11.) However, she argues that this approach was modified in Picture Music, Inc. v. Bourne, Inc.,
Since no possibility of copyright infringement existed, the cause of action for conspiracy to infringe does not state a valid claim. It follows that the remaining cause of action for unfair trade practices and unfair competition must be dismissed, since the predicate for pendent jurisdiction has been destroyed. United Mine Workers v. Gibbs,
It is so ordered.
Notes
. The motion is also made on behalf of Rosemary Casey, a Dodd Mead editor.