Appeal from the United States District Courtfor the Central District of CaliforniaJ. Spencer Letts, District Judge, PresidingSubmitted April 19, 19991Pasadena, CaliforniaFiled February 4, 2000Before: William C. Canby, Jr., John T. Noonan, andAndrew J. Kleinfeld, Circuit Judges.Opinion by Judge Kleinfeldpractices for the characters; and edited parts of the movie dur-ing post production. Once production ended, Aalmuhammedmet with numerous Islamic organizations to persuade themthat the movie was an accurate depiction of Malcolm X's life.Aalmuhammed never had a written contract with WarnerBrothers, Lee, or Lee's production companies, but heexpected Lee to compensate him for his work. He did notintend to work and bear his expenses in New York and Egyptgratuitously.In the summer of 1992, Aalmuhammed asked for a writingcredit as a co-writer of the film, but was refused. The filmcredited Aalmuhammed only as an Islamic TechnicalConsultant." In November 1995, Aalmuhammed applied fora copyright with the U.S. Copyright Office, claiming he wasa co-creator, co-writer, and co-director of the movie. TheCopyright Office issued him a copyright registration certifi-cate, but advised him that his claims conflicted with previousregistrations of the film.On November 17, 1995, Aalmuhammed filed a complaintagainst Spike Lee, his production companies, and WarnerBrothers, (collectively Lee) and their foreign distributors(Largo), alleging breach of implied contract, quantum meruit,and unjust enrichment, and federal (Lanham Act) and stateunfair competition claims. The suit sought declaratory reliefand an accounting under the Copyright Act. The district courtdismissed some of the claims under Rule 12(b)(6) and the reston summary judgment.Aalmuhammed appealed, claiming that (1) the movie Mal-colm X was a "joint work" of which he was an author, thusmaking him a co-owner of the copyright; (2) Lee accepted hisservices, knowing that they were not being provided gratu-itously, yet paid him neither the fair value of his services noreven his full expenses; and (3) Lee passed off his scriptwrit-ing, directing and other work as that of other persons, in vio-lation of the Lanham Act and the California statuteprohibiting unfair competition.Lee argued that Aalmuhammed's claim that he was one ofthe authors of a joint work was barred by the statute of limita-tions, and that Aalmuhammed's claims that he was not paidthe full value of his services were barred by California's twoyear statute of limitations. Aalmuhammed argued that NewYork's six year statute of limitations applied.[1] A claim of authorship of a joint work must be broughtwithin three years of when it accrues. Because creation ratherthan infringement is the gravamen of an authorship claim, theclaim accrues on account of creation, not subsequent infringe-ment, and is barred three years from "plain and expressrepudiation" of authorship.[2] The movie credits plainly and expressly repudiatedauthorship, by listing Aalmuhammed far below the moreprominent names, as an "Islamic technical consultant." Thatrepudiation, though, was less than three years before the law-suit was filed. The record left open a genuine issue of fact asto whether authorship was repudiated before that. A trier offact could have construed that the question of authorship wasunresolved. There was a genuine issue of fact as to whetherAalmuhammed's claim was barred by limitations. It had to bedetermined whether there is a genuine issue of fact as towhether Aalmuhammed was an author of a "joint work."[3] For a work to be a "joint work" there must be (1) acopyrightable work, (2) two or more "authors, " and (3) theauthors must intend their contributions be merged into insepa-rable or interdependent parts of a unitary whole. In a "jointwork" each author must make an independently copyrightablecontribution to the disputed work. Malcolm X was a copy-rightable work, and the movie was intended by everyoneinvolved with it to be a unitary whole. Aalmuhammed madesubstantial and valuable contributions to the movie. Aal-muhammed presented a genuine issue of fact as to whether hemade a copyrightable contribution.[4] However, a "joint work" includes "two or moreauthors." Aalmuhammed established that he contributed sub-stantially to the film, but not that he was one of its "authors."Authorship is required under the statutory definition of a jointwork, and authorship is not the same thing as making a valu-able and copyrightable contribution. The issue was whetherAalmuhammed was an author of the joint work within themeaning of 17 U.S.C. S 101.[5] The definition of "author" requires more than a minimalcreative or original contribution to the work. An author is theperson to whom the work owes its origin and who superin-tended the whole work, the mastermind. In a movie this defi-nition, in the absence of a contract to the contrary, wouldgenerally limit authorship to someone at the top of the screencredits--someone who has artistic control.[6] Several factors suggest themselves as among the criteriafor joint authorship in the absence of contract. First, an authorsuperintends the work by exercising control. Second, putativecoauthors make objective manifestations of a shared intent tobe coauthors. Third, the audience appeal of the work turns onboth contributions and the share of each in its success cannotbe appraised.[7] Aalmuhammed did not have superintendence of thework. Warner Brothers and Spike Lee controlled it. Aal-muhammed could make extremely helpful recommendations,but Lee was not bound to accept any of them, and the workwould not benefit in the slightest unless Lee chose to acceptthem. Aalmuhammed lacked control over the work, andabsence of control is strong evidence of the absence of co-authorship.[8] Aalmuhammed was not the inventive or mastermind ofthe movie. Subject to Lee's authority to accept them, Aal-muhammed made very valuable contributions to the movie.That is not enough for co-authorship of a joint work.[9] A prima facie case for ownership established by theissuance of a copyright registration certificate could not haveprevented summary judgment in the presence of all the evi-dence rebutting Aalmuhammed's claim of ownership. [10]Because there was no genuine issue of fact as to Aalmuham-med's co-authorship of the movie as a joint work, the districtcourt correctly granted summary judgment dismissing hisclaims for declaratory judgment and an accounting resting onco-authorship.[11] The question on review of Aalmuhammed's claims ofunjust enrichment was limited to which state's statute of limi-tations applies. [12] The applicable rule required that the courtapply the law of the state whose interest would be moreimpaired if its law were not applied.[13] California's interest in protecting its residents fromstale claims arising from work done outside the state wasweak. New York's interest in governing the remedies avail-able to parties working in New York was far more significant.New York's connection with Aalmuhammed's claim wasconsiderably more substantial, immediate and concrete thanCalifornia's. New York would have suffered more damage toits interest if California law were applied than would Califor-nia if New York law were applied.[14] New York's six-year statute of limitations governed.Aalmuhammed's claims were brought within six years ofwhen they accrued. The dismissal of Aalmuhammed'simplied contract, quantum meruit, and unjust enrichmentclaims had to be vacated and remand was required.[15] The failure to give appropriate credit for a film maybe actionable under the Lanham Act. Whether enough of Aal-muhammed's proposed script was used verbatim to amount toa violation went to the evidence and could not sustain a12(b)(6) dismissal.[16] It could not be determined whether the acts of the for-eign distributors Aalmuhammed complained of occurredwholly outside of the United States. Therefore, dismissalbased on the extraterritoriality of Aalmuhammed's claimagainst the foreign distributors had to be reversed.
_____________________________COUNSEL Philip H. Stillman and Stephen S. Lux, Flynn, Sheridan, Tabb& Stillman, Del Mar, California, for the plaintiff-appellant.Bruce Isaacs, Karen Brodkin & Jason A. Forge, Wyman,Isaacs, Blumenthal, & Lynne, Los Angeles, California, for thedefendants-appellees.Bruce P. Vann, Kelly, Lytton, Mintz & Vann, Los Angeles,California, for the defendants-appellees.
_____________________________OPINION KLEINFELD, Circuit Judge:This is a copyright case involving a claim of coauthorshipof the movie Malcolm X. We reject the "joint work" claim butremand for further proceedings on a quantum meruit claim.I. FACTSIn 1991, Warner Brothers contracted with Spike Lee andhis production companies to make the movie Malcolm X, tobe based on the book, The Autobiography of Malcolm X. Leeco-wrote the screenplay, directed, and co-produced the movie,which starred Denzel Washington as Malcolm X. Washingtonasked Jefri Aalmuhammed to assist him in his preparation forthe starring role because Aalmuhammed knew a great dealabout Malcolm X and Islam. Aalmuhammed, a devout Mus-lim, was particularly knowledgeable about the life of Mal-colm X, having previously written, directed, and produced adocumentary film about Malcolm X.Aalmuhammed joined Washington on the movie set. Themovie was filmed in the New York metropolitan area andEgypt. Aalmuhammed presented evidence that his involve-ment in making the movie was very extensive. He reviewedthe shooting script for Spike Lee and Denzel Washington andsuggested extensive script revisions. Some of his script revi-sions were included in the released version of the film; otherswere filmed but not included in the released version. Most ofthe revisions Aalmuhammed made were to ensure the reli-gious and historical accuracy and authenticity of scenesdepicting Malcolm X's religious conversion and pilgrimage toMecca.Aalmuhammed submitted evidence that he directed DenzelWashington and other actors while on the set, created at leasttwo entire scenes with new characters, translated Arabic intoEnglish for subtitles, supplied his own voice for voice-overs,selected the proper prayers and religious practices for thecharacters, and edited parts of the movie during post produc-tion. Washington testified in his deposition that Aalmuham-med's contribution to the movie was "great" because he"helped to rewrite, to make more authentic." Once productionended, Aalmuhammed met with numerous Islamic organiza-tions to persuade them that the movie was an accurate depic-tion of Malcolm X's life.Aalmuhammed never had a written contract with WarnerBrothers, Lee, or Lee's production companies, but heexpected Lee to compensate him for his work. He did notintend to work and bear his expenses in New York and Egyptgratuitously. Aalmuhammed ultimately received a check for$25,000 from Lee, which he cashed, and a check for $100,000from Washington, which he did not cash.During the summer before Malcolm X's November 1992release, Aalmuhammed asked for a writing credit as a co-writer of the film, but was turned down. When the film wasreleased, it credited Aalmuhammed only as an "Islamic Tech-nical Consultant," far down the list. In November 1995, Aal-muhammed applied for a copyright with the U.S. CopyrightOffice, claiming he was a co-creator, co-writer, and co-director of the movie. The Copyright Office issued him a"Certificate of Registration," but advised him in a letter thathis "claims conflict with previous registrations " of the film.On November 17, 1995, Aalmuhammed filed a complaintagainst Spike Lee, his production companies, and WarnerBrothers, (collectively "Lee"), as well as Largo International,N.V., and Largo Entertainment, Inc. (collectively "Largo"),and Victor Company of Japan and JVC Entertainment, Inc.(collectively "Victor"). The suit sought declaratory relief andan accounting under the Copyright Act. In addition, the com-plaint alleged breach of implied contract, quantum meruit, andunjust enrichment, and federal (Lanham Act) and state unfaircompetition claims. The district court dismissed some of theclaims under Rule 12(b)(6) and the rest on summary judg-ment.II. ANALYSISA. Copyright claimAalmuhammed claimed that the movie Malcolm X was a"joint work" of which he was an author, thus making him aco-owner of the copyright.2 He sought a declaratory judgmentto that effect, and an accounting for profits. He is not claimingcopyright merely in what he wrote or contributed, but ratherin the whole work, as a co-author of a "joint work."3 The dis-trict court granted defendants summary judgment against Mr.Aalmuhammed's copyright claims. We review de novo. 4[1] Defendants argue that Aalmuhammed's claim that he isone of the authors of a joint work is barred by the applicablestatute of limitations. A claim of authorship of a joint workmust be brought within three years of when it accrues.5Because creation rather than infringement is the gravamen ofan authorship claim, the claim accrues on account of creation,not subsequent infringement, and is barred three years from"plain and express repudiation" of authorship. 6[2] The movie credits plainly and expressly repudiatedauthorship, by listing Aalmuhammed far below the moreprominent names, as an "Islamic technical consultant." Thatrepudiation, though, was less than three years before the law-suit was filed. The record leaves open a genuine issue of factas to whether authorship was repudiated before that. Aal-muhammed testified in his deposition that he discussed withan executive producer at Warner Brothers his claim to creditas one of the screenwriters more than three years before hefiled suit. Defendants argue that this discussion was anexpress repudiation that bars the claim. It was not. Aal-muhammed testified that the producer told him "there is noth-ing I can do for you," but "[h]e said we would discuss itfurther at some point." A trier of fact could construe that com-munication as leaving the question of authorship open for fur-ther discussion. That leaves a genuine issue of fact as towhether the claim is barred by limitations, so we must deter-mine whether there is a genuine issue of fact as to whetherAalmuhammed was an author of a "joint work."[3] Aalmuhammed argues that he established a genuineissue of fact as to whether he was an author of a "joint work,"Malcolm X. The Copyright Act does not define "author," butit does define "joint work": A "joint work" is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.7"When interpreting a statute, we look first to the language."8The statutory language establishes that for a work to be a"joint work" there must be (1) a copyrightable work, (2) twoor more "authors," and (3) the authors must intend their con-tributions be merged into inseparable or interdependent partsof a unitary whole. A "joint work" in this circuit "requireseach author to make an independently copyrightablecontribution" to the disputed work.9 Malcolm X is a copyright-able work, and it is undisputed that the movie was intendedby everyone involved with it to be a unitary whole. It is alsoundisputed that Aalmuhammed made substantial and valuablecontributions to the movie, including technical help, such asspeaking Arabic to the persons in charge of the mosque inEgypt, scholarly and creative help, such as teaching the actorshow to pray properly as Muslims, and script changes to addverisimilitude to the religious aspects of the movie. SpeakingArabic to persons in charge of the mosque, however, does notresult in a copyrightable contribution to the motion picture.Coaching of actors, to be copyrightable, must be turned intoan expression in a form subject to copyright.10 The same maybe said for many of Aalmuhammed's other activities. Aal-muhammed has, however, submitted evidence that he rewroteseveral specific passages of dialogue that appeared inMalcolm X, and that he wrote scenes relating to Malcolm X'sHajj pilgrimage that were enacted in the movie. If Aalmuham-med's evidence is accepted, as it must be on summary judg-ment, these items would have been independentlycopyrightable. Aalmuhammed, therefore, has presented a gen-uine issue of fact as to whether he made a copyrightable con-tribution. All persons involved intended that Aalmuhammed'scontributions would be merged into interdependent parts ofthe movie as a unitary whole. Aalmuhammed maintains thathe has shown a genuine issue of fact for each element of a"joint work."[4] But there is another element to a "joint work." A "jointwork" includes "two or more authors."11 Aalmuhammedestablished that he contributed substantially to the film, butnot that he was one of its "authors." We hold that authorshipis required under the statutory definition of a joint work, andthat authorship is not the same thing as making a valuable andcopyrightable contribution. We recognize that a contributor ofan expression may be deemed to be the "author " of thatexpression for purposes of determining whether it is indepen-dently copyrightable. The issue we deal with is a different andlarger one: is the contributor an author of the joint workwithin the meaning of 17 U.S.C. S 101.By statutory definition, a "joint work" requires "two ormore authors."12 The word "author" is taken from the tradi-tional activity of one person sitting at a desk with a pen andwriting something for publication. It is relatively easy toapply the word "author" to a novel. It is also easy to apply theword to two people who work together in a fairly traditionalpen-and-ink way, like, perhaps, Gilbert and Sullivan. In thesong, "I Am the Very Model of a Modern Major General,"Gilbert's words and Sullivan's tune are inseparable, and any-one who has heard the song knows that it owes its existenceto both men, Sir William Gilbert and Sir Arthur Sullivan, asits creative originator. But as the number of contributorsgrows and the work itself becomes less the product of one ortwo individuals who create it without much help, the word isharder to apply.Who, in the absence of contract, can be considered anauthor of a movie? The word is traditionally used to mean theoriginator or the person who causes something to come intobeing, or even the first cause, as when Chaucer refers to the"Author of Nature." For a movie, that might be the producerwho raises the money. Eisenstein thought the author of amovie was the editor. The "auteur" theory suggests that itmight be the director, at least if the director is able to imposehis artistic judgments on the film. Traditionally, by analogy tobooks, the author was regarded as the person who writes thescreenplay, but often a movie reflects the work of manyscreenwriters. Grenier suggests that the person with creativecontrol tends to be the person in whose name the money israised, perhaps a star, perhaps the director, perhaps the pro-ducer, with control gravitating to the star as the financialinvestment in scenes already shot grows.13 Where the visualaspect of the movie is especially important, the chief cinema-tographer might be regarded as the author. And for, say, aDisney animated movie like "The Jungle Book," it might per-haps be the animators and the composers of the music.The Supreme Court dealt with the problem of defining"author" in new media in Burrow-Giles Lithographic Co. v.Sarony.14 The question there was, who is the author of a pho-tograph: the person who sets it up and snaps the shutter, or theperson who makes the lithograph from it. Oscar Wilde, theperson whose picture was at issue, doubtless offered somecreative advice as well. The Court decided that the photogra-pher was the author, quoting various English authorities: "theperson who has superintended the arrangement, who has actu-ally formed the picture by putting the persons in position, andarranging the place where the people are to be -- the manwho is the effective cause of that"; " `author' involves origi-nating, making, producing, as the inventive or master mind,the thing which is to be protected"; "the man who really rep-resents, creates, or gives effect to the idea, fancy, orimagination."15 The Court said that an "author," in the sensethat the Founding Fathers used the term in the Constitution,16was " `he to whom anything owes its origin; originator;maker; one who completes a work of science or literature.' "17Answering a different question, what is a copyrightable"work," as opposed to who is the "author, " the Supreme Courtheld in Feist Publications that "some minimal level ofcreativity" or "originality" suffices. 18 But that measure of a"work" would be too broad and indeterminate to be useful ifapplied to determine who are "authors" of a movie. So manypeople might qualify as an "author" if the question were lim-ited to whether they made a substantial creative contributionthat that test would not distinguish one from another. Every-one from the producer and director to casting director, cos-tumer, hairstylist, and "best boy" gets listed in the moviecredits because all of their creative contributions really domatter. It is striking in Malcolm X how much the person whocontrolled the hue of the lighting contributed, yet no onewould use the word "author" to denote that individual's rela-tionship to the movie. A creative contribution does not sufficeto establish authorship of the movie.[5] Burrow-Giles, in defining "author," requires more thana minimal creative or original contribution to the work.19Burrow-Giles is still good law, and was recently reaffirmed inFeist Publications.20 Burrow-Giles and Feist Publicationsanswer two distinct questions; who is an author, and what isa copyrightable work.21 Burrow-Giles defines author as theperson to whom the work owes its origin and who superin-tended the whole work, the "master mind." 22 In a movie thisdefinition, in the absence of a contract to the contrary, wouldgenerally limit authorship to someone at the top of the screencredits, sometimes the producer, sometimes the director, pos-sibly the star, or the screenwriter -- someone who has artisticcontrol. After all, in Burrow-Giles the lithographer made asubstantial copyrightable creative contribution, and so did theperson who posed, Oscar Wilde, but the Court held that thephotographer was the author.23The Second and Seventh Circuits have likewise concludedthat contribution of independently copyrightable material to awork intended to be an inseparable whole will not suffice toestablish authorship of a joint work.24 Although the Secondand Seventh Circuits do not base their decisions on the word"authors" in the statute, the practical results they reach areconsistent with ours. These circuits have held that a personclaiming to be an author of a joint work must prove that bothparties intended each other to be joint authors. 25 In determin-ing whether the parties have the intent to be joint authors, theSecond Circuit looks at who has decision making authority,how the parties bill themselves, and other evidence. 26In Thomson v. Larson, an off-Broadway playwright hadcreated a modern version of La Boheme, and had been ada-mant throughout its creation on being the sole author.27 Hehired a drama professor for "dramaturgical assistance andresearch," agreeing to credit her as "dramaturg" but notauthor, but saying nothing about "joint work" or copyright.28The playwright tragically died immediately after the finaldress rehearsal, just before his play became the tremendousBroadway hit, Rent.29 The dramaturg then sued his estate fora declaratory judgment that she was an author of Rent as a"joint work," and for an accounting.30 The Second Circuitnoted that the dramaturg had no decision making authority,had neither sought nor was billed as a co-author, and that thedefendant entered into contracts as the sole author. 31 On thisreasoning, the Second Circuit held that there was no intent tobe joint authors by the putative parties and therefore it wasnot a joint work.32[6] Considering Burrow-Giles, the recent cases on jointworks33 (especially the thoughtful opinion in Thomson v.Larson34 ), and the Gilbert and Sullivan example, several fac-tors suggest themselves as among the criteria for joint author-ship, in the absence of contract. First, an author "superintend[s]"35 the work by exercising control.36 Thiswilllikely be a person "who has actually formed the picture byputting the persons in position, and arranging the place wherethe people are to be--the man who is the effective cause ofthat,"37 or "the inventive or master mind" who "creates, orgives effect to the idea."38 Second, putative coauthors makeobjective manifestations of a shared intent to be coauthors, asby denoting the authorship of The Pirates of Penzance as"Gilbert and Sullivan."39 We say objective manifestationsbecause, were the mutual intent to be determined by subjec-tive intent, it could become an instrument of fraud, were onecoauthor to hide from the other an intention to take sole creditfor the work. Third, the audience appeal of the work turns onboth contributions and "the share of each in its success cannotbe appraised."40 Control in many cases will be the mostimportant factor.The best objective manifestation of a shared intent, ofcourse, is a contract saying that the parties intend to be or notto be co-authors. In the absence of a contract, the inquiry mustof necessity focus on the facts. The factors articulated in thisdecision and the Second and Seventh Circuit decisions cannotbe reduced to a rigid formula, because the creative relation-ships to which they apply vary too much. Different people docreative work together in different ways, and even among thesame people working together the relationship may changeover time as the work proceeds.[7] Aalmuhammed did not at any time have superinten-dence of the work.41 Warner Brothers and Spike Lee con-trolled it. Aalmuhammed was not the person "who hasactually formed the picture by putting the persons in position,and arranging the place . . . ."42 Spike Lee was, so far as wecan tell from the record. Aalmuhammed, like Larson's drama-turg, could make extremely helpful recommendations, butSpike Lee was not bound to accept any of them, and the workwould not benefit in the slightest unless Spike Lee chose toaccept them. Aalmuhammed lacked control over the work,and absence of control is strong evidence of the absence ofco-authorship.Also, neither Aalmuhammed, nor Spike Lee, nor WarnerBrothers, made any objective manifestations of an intent to becoauthors. Warner Brothers required Spike Lee to sign a"work for hire" agreement, so that even Lee would not be aco-author and co-owner with Warner Brothers. It would beillogical to conclude that Warner Brothers, while not wantingto permit Lee to own the copyright, intended to share owner-ship with individuals like Aalmuhammed who worked underLee's control, especially ones who at the time had madeknown no claim to the role of co-author. No one, includingAalmuhammed, made any indication to anyone prior to litiga-tion that Aalmuhammed was intended to be a co-author andco-owner.[8] Aalmuhammed offered no evidence that he was the"inventive or master mind" of the movie. He was the authorof another less widely known documentary about Malcolm X,but was not the master of this one. What Aalmuhammed'sevidence showed, and all it showed, was that, subject to SpikeLee's authority to accept them, he made very valuable contri-butions to the movie. That is not enough for co-authorship ofa joint work.The Constitution establishes the social policy that our con-struction of the statutory term "authors" carries out. TheFounding Fathers gave Congress the power to give authorscopyrights in order "[t]o promote the progress of Science anduseful arts."43 Progress would be retarded rather than pro-moted, if an author could not consult with others and adopttheir useful suggestions without sacrificing sole ownership ofthe work. Too open a definition of author would compelauthors to insulate themselves and maintain ignorance of thecontributions others might make. Spike Lee could not consulta scholarly Muslim to make a movie about a religious conver-sion to Islam, and the arts would be the poorer for that.The broader construction that Aalmuhammed proposeswould extend joint authorship to many "overreachingcontributors,"44 like the dramaturg in Thomson, and deny soleauthors "exclusive authorship status simply because anotherperson render[ed] some form of assistance."45 Claimjumpingby research assistants, editors, and former spouses, lovers andfriends would endanger authors who talked with people aboutwhat they were doing, if creative copyrightable contributionwere all that authorship required.[9] Aalmuhammed also argues that issuance of a copyrightregistration certificate to him establishes a prima facie casefor ownership. A prima facie case could not in any event pre-vent summary judgment in the presence of all the evidencerebutting his claim of ownership. "The presumptive validityof the certificate may be rebutted and defeated on summaryjudgment."46 The Copyright Office stated in its response toAalmuhammed's application for copyright (during the pen-dency of this litigation) that his claims "conflict with previousregistration claims," and therefore the Copyright Office had"several questions" for him. One of the questions dealt withthe "intent" of "other authors," i.e., Warner Brothers. The evi-dence discussed above establishes without genuine issue thatthe answers to these questions were that Warner Brothers didnot intend to share ownership with Aalmuhammed.[10] Because the record before the district court establishedno genuine issue of fact as to Aalmuhammed's co-authorshipof Malcolm X as a joint work, the district court correctlygranted summary judgment dismissing his claims for declara-tory judgment and an accounting resting on co-authorship.B. Quantum meruitAalmuhammed alleged in his complaint that defendantsaccepted his services, knowing that they were not being pro-vided gratuitously, yet paid him neither the fair value of hisservices nor even his full expenses. He wrote script material,particularly for the important Islamic religious scenes,arranged with the Egyptians in charge of the mosque for themovie to be shot inside (Aalmuhammed is a Muslim and wasthe only Arabic-speaking person in the production crew),taught the actors how to pray as Muslims and directed theprayer scenes, and talked to Islamic authorities after themovie was made to assure their support when it was exhib-ited. These services were very important. The movie would bea dark tale of hate, but for the redemptive, uplifting Islamicreligious scenes.[11] All the services were performed in New York and inEgypt (where the Hajj scenes were shot). Aalmuhammed'sfifth, sixth and seventh claims articulated this claim variouslyas quasicontract, quantum meruit, and unjust enrichment.These claims are different from Aalmuhammed's claim toauthorship of a joint work. Even though he was not an author,it is undisputed that he made a substantial contribution to thefilm. It may be that the producer or director, seeing that Aal-muhammed was performing valuable and substantial servicesand expending substantial amounts for travel and lodging, inthe apparent expectation of reimbursement, had a duty to signhim up as an employee or independent contractor, obtain hisacknowledgment that he was working gratuitously or perhapsfor Denzel Washington, or eject him from the set. 47 We neednot decide that, because the question on review is limited towhich state's statute of limitations applies.The defendants moved to dismiss these claims for failure tostate a claim under Rule 12(b)(6), on the ground that theclaims were barred by California's two year statute of limita-tions. Aalmuhammed argued that New York's six year statuteof limitations applied. The district court granted the motion todismiss, applying California's shorter statute.[12] The parties agree that the district court correctly usedlaw of the forum, California, as the source of its rule forchoice of law. The applicable rule required, in this case, that"the court must apply the law of the state whose interestwould be more impaired if its law were not applied."48Defendants argue that only California had an interest in theapplication of its statute of limitations, not New York. Theirtheory is that the defendant corporations have their principalplaces of business in California, Aalmuhammed resided inneither state (he lives in Florida, though he spent the monthsof shooting time in New York and Egypt), and Aalmuham-med filed his lawsuit in California.[13] The defense argument is unpersuasive. The question iswhich state's interest would suffer more by the application ofthe other's law.49 The strength of the interest is also a factor,however.50 California's interest in protecting its residents fromstale claims arising from work done outside the state is aweak one: "[t]he residence of the parties is not the determin-ing factor in a choice of law analysis."51 New York's interestin governing the remedies available to parties working in newYork is far more significant.52 New York's connection withAalmuhammed's claim is considerably more substantial,immediate and concrete than California's. We conclude thatNew York would suffer more damage to its interest if Califor-nia law were applied than would California if New York lawwere applied.[14] Because New York has the stronger interest and wouldsuffer more damage than California if its law were notapplied, New York's six year statute of limitations governs.The claims were brought within six years of when theyaccrued. We therefore vacate the dismissal of Aalmuham-med's implied contract, quantum meruit, and unjust enrich-ment claims and remand them for further proceedings.C. Unfair competitionAalmuhammed claimed that defendants passed off hisscriptwriting, directing and other work as that of other per-sons, in violation of the Lanham Act53 and the California stat-ute prohibiting unfair competition.54 The dismissal was underRule 12(b)(6), for failure to state a claim upon which reliefcan be granted, so we review de novo,55 on the basis of allega-tions in the complaint.56[15] We have held that, at least in some circumstances, fail-ure to give appropriate credit for a film is "reverse palmingoff" actionable under the Lanham Act.57 And we have heldthat "actions pursuant to California Business and ProfessionsCode S 17200 are substantially congruent to claims madeunder the Lanham Act."58 Defendants argue that not enoughof Aalmuhammed's proposed script was used verbatim toamount to a violation. But this argument goes to the evidence,not the complaint, so it cannot sustain the 12(b)(6) dismissal.The complaint alleged that Aalmuhammed "substantiallyrewrote and expanded the dialogue for various entire scenes"and otherwise alleged extensive and substantial use of hiswork in the final movie. We need not determine whether Aal-muhammed established a genuine issue of fact regardingunfair competition, because the claim never got as far as sum-mary judgment in the district court. We reverse the dismissalof these two claims.58 Cleary v. News Corp., 30 F.3d 1255, 1262-63 (9th Cir. 1994).D. Conduct abroadThe district court dismissed Aalmuhammed's claimsagainst the Largo defendants under Rule 12(b)(6) for failureto state a claim. The dismissal was based on our decision inSubafilms, that acts of copyright infringement that occurwholly outside of the United States are not actionable underthe U.S. Copyright Act.59[16] The complaint does not say whether the Largo defen-dants' conduct occurred outside the United States. Defendantsargue that it does, by referring to them as "the film's foreigndistributors." But it also says that their principal place of busi-ness is in California. These allegations leave room for proofthat the conduct that the Largo defendants engaged in tookplace within California, even though it had consequencesabroad. We cannot tell from the complaint whether foreigndistributors do their work in foreign countries, or do it by fax,phone, and email from California. We therefore reverse thedismissal based on extraterritoriality of the claims against theLargo defendants.AFFIRMED in part, REVERSED and REMANDED inpart. Each party to bear its own costs.
___________________________FOOTNOTES 1 The panel unanimously finds this case suitable for decision withoutoral argument. See Fed. R. App. P. 34(a)(2).This dispute was originally submitted and argued on May 5, 1998 as 97-55403. However, on October 29, 1998, that appeal was dismissed for wantof jurisdiction. The District Court had entered a judgment that stated "TheCourt may amend or amplify this order with a more specific statement ofthe grounds for its decision." National Distrib. Agency v. NationwideMutual Ins. Co., 117 F.3d 432 (9th Cir. 1997), held that the identical lan-guage prevented review because "the court left open the possibility thatthe court might change its ruling," so no final judgment was entered.On December 10, 1998, the District Court amended its order by remov-ing that one sentence, thus making its order final. The parties thenappealed the District Court's decision again. On April 19, 1999, this courtgranted appellant's motion to submit the case without oral argument, totake judicial notice of the briefs and excerpts filed in 97-55403, and toallow filing of letter briefs supplementing the earlier briefs.2 17 U.S.C. SS 101, 201(a).3 Cf. Thomson v. Larson, 147 F.3d 195, 206 (2nd Cir. 1998).4 See Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9thCir. 1997), amended by, 125 F.3d 1281 (1997).5 See 17 U.S.C. S 507(b); Zuill v. Shanahan, 80 F.3d 1366, 1371 (9thCir. 1996), cert. denied,
519 U.S. 1090
(1997).6 Zuill, 80 F.3d at 1371.7 17 U.S.C. S 101.8 Richardson v. United States, 119 S. Ct. 1707, 1710 (1999).9 Ashton-Tate Corp. v. Ross, 916 F.2d 516, 521 (9th Cir. 1990).10 See Ashton-Tate Corp. v. Ross , 916 F.2d 516, 521 (9th Cir. 1990).11 17 U.S.C. S 101.12 17 U.S.C. S 101.13 See Richard Grenier, Capturing the Culture, 206-07 (1991).14 Burrow-Giles Lithographic Co. v. Sarony,
111 U.S. 53
, 61 (1884).15 Id. at 61 (quoting Nottage v. Jackson, 11 Q. B. D. 627 (1883)).16 U.S. Const. Art. 1, S 8, cl. 8.17 Burrow-Giles,
111 U.S. at 58
(quoting Worcester).18 Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S.340, 345 (1991).19 Burrow-Giles Lithographic Co. v. Sarony,
111 U.S. 53
, 58 (1883).20 Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S.340, 346 (1991).21 See Burrow-Giles Lithographic Co. v. Sarony,
111 U.S. 53
(1884);Feist Publications, Inc. v. Rural Telephone Service Co., Inc.,
499 U.S. 340
(1991).22 Burrow-Giles,
111 U.S. at 61
(quoting Nottage v. Jackson, 11 Q. B.D. 627 (1883)).23 Id. at 61.24 Thomson v. Larson, 147 F.3d 195, (2nd Cir. 1998); Erickson v. TrinityTheatre, Inc., 13 F.3d 1061 (7th Cir. 1994); Childress v. Taylor, 945 F.2d500 (2d Cir. 1991).25 Thomson, 147 F.3d at 202-05.26 Id.27 Id. at 197.28 Id.29 Id. at 198.30 Id.31 Id. at 202-04.32 Id. at 202-24.33 See Thomson v. Larson, 147 F.3d 195, (2nd Cir. 1998); Erickson v.Trinity Theatre, Inc., 13 F.3d 1061 (7th Cir. 1994); Childress v. Taylor,945 F.2d 500 (2nd Cir. 1991).34 Thomson v. Larson, 147 F.3d 195 (2nd Cir. 1998).35 Burrow-Giles v. Sarony,
111 U.S. at 61
(quoting Nottage v. Jackson,11 Q. B. div. 627 (1883)).36 Thomson, 147 F.3d at 202.37 Burrow-Giles v. Sarony,
111 U.S. at 61
(quoting Nottage v. Jackson,11 Q. B. Div. 627 (1883)).38 Id.39 Cf. Thomson v. Larson , 147 F.3d 195, 202 (2nd Cir. 1998).40 Edward B. Marks Music Corp. v. Jerry Vogel Music Co., Inc., 140F.2d 266, 267 (2nd Cir. 1944) (Hand, J.) modified by, 140 F.2d 268(1944).41 See Burrow-Giles v. Sarony,
111 U.S. 53
, 61 (1883).42 Id.43 U.S. Const. Art. 1, S 8, cl. 8.44 Thomson, 147 F.3d at 200 (internal quotations omitted).45 Id. at 202 (citing Childress v. Taylor, 945 F.2d 500, 504 (1991)).46 S.O.S., Inc. v. Payday, Inc. , 886 F.2d 1081, 1086 (9th Cir. 1989).47 See 2 George E. Palmer,Law of Restitution S 10.11, at 463 (1978)("When the plaintiff voluntarily submits an idea to the defendant whichthe defendant uses to his economic advantage, without any express agree-ment to pay the plaintiff for such use, . . . the plaintiff will be able [insome circumstances] to recover the reasonable value of the use of the ideain a contract action.").48 Waggoner v. Snow, Becker, Kroll, Klaris & Krauss, 991 F.2d 1501,1507 (9th Cir. 1993) (citing Ledesma v. Jack Stewart Produce, Inc., 816F.2d 482, 484 (9th Cir. 1987)).49 Waggoner v. Snow, Becker, Kroll, Klaris & Krauss, 991 F.2d 1501,1507 (9th Cir. 1993) (citing Ledesma v. Jack Stewart Produce, Inc., 816F.2d 482, 484 (9th Cir. 1987)).50 Id.51 Id.52 See Rosenthal v. Fonda, 862 F.2d 1398, 1403 (9th Cir. 1988).53 15 U.S.C. SS 1117, 1125.54 Cal. Bus. & Prof. Code S 17203.55 See Cohen v. Stratosphere Corp., 115 F.3d 695, 700 (9th Cir. 1997).56 See Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996).57 Smith v. Montoro, 648 F.2d 602, 607 (9th Cir. 1981); See also59 See Subafilms, Ltd. v. MGM-Pathe Communications, 24 F.3d 1088,1095-96 (9th Cir. 1994) (en banc).