Chapman, Michael Joe v. Air Leaf Publ Book S , 292 F. App'x 500 ( 2008 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 24, 2008*
Decided August 28, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 07-3334 Appeal from the United
States District Court for the
MICHAEL JOE C HAPMAN, Southern District of Indiana,
Plaintiff-Appellant, Indianapolis Division.
v. No. 1-06-cv-1052-DFH-JMS
AIRLEAF PUBLISHING AND BOOK SELLING David F. Hamilton, Chief
and BRIEN JONES, Judge.
Defendants-Appellees.
Order
Michael Chapman published a 47-page book, “History of the World and Good or
Evil Since the Garden of Edon” [sic], through Airleaf Publishing and Book Selling. This
appears to be a trade name; it may be a division of either Bookman Marketing LLC or
Airleaf LLC. It is hard to pin down Airleaf’s legal status because it is defunct. Before
closing its doors at the end of 2007 Airleaf was accused by authors, as well as state and
local officials in Indiana, of failing to print and distribute books that had been paid for
(Airleaf was part of the “vanity press”) and of failing to remit royalties when books
were sold. See http://airleafvictims.blogspot.com/2007/12/airleaf-publishing-self-
publishing.html.
Chapman, who has received $9 in royalties to date, accuses Airleaf of underpaying;
Airleaf responded (before its attorneys, who like Chapman were not paid, withdrew
from the litigation) that only two copies had been sold. Chapman maintains, however,
that because at least 20 web sites (including Barnes & Noble, where its sales rank is
728,827) list his book for sale, Airleaf must have sold hundreds of copies and might
have sold tens of thousands. To this Airleaf replied that these booksellers do not stock
* The appellees did not file a brief. After examining appellant’s brief and the record, we have concluded
that oral argument is unnecessary. See Fed. R. App. P. 31(c), 34(a); Cir. R. 31(d), 34(f).
No. 07-3334 Page 2
Chapman’s volume but order only after a sale. Yet Amazon’s web site reported on July
24, 2008, that it had two copies in stock, so this cannot be entirely right.
Although Airleaf is out of business, it does not appear to be a debtor in bankruptcy, so
the automatic stay, 11 U.S.C. §362, does not affect this litigation. And a second defendant,
Brien Jones, still operates book-related businesses, see http://www.brienjones.com/,
though the relation of Jones to Airleaf is not developed in Chapman’s complaint or appel-
late brief.
Contending that Airleaf has violated the copyright laws by failing to pay all royal-
ties, Chapman invoked federal jurisdiction under 28 U.S.C. §1331 and §1337. The district
court dismissed this claim under Fed. R. Civ. P. 12(b)(6) because Chapman conceded
that he had authorized Airleaf to print and distribute the book, and it then relinquished
supplemental jurisdiction over state-law claims such as breach of contract.
Chapman’s pro se brief in this court asserts only one theory: that Airleaf must have
sold more than two copies, so it must owe him additional royalties. This is a claim for
breach of contract, not for copyright infringement. Indeed, the complaint in the district
court asserts no theory other than breach of contract. How much a publisher owes un-
der a license depends on state rather than federal law. See Saturday Evening Post Co. v.
Rumbleseat Press, Inc., 816 F.2d 1191, 1194–95 (7th Cir. 1987); T.B. Harms Co. v. Eliscu, 339
F.2d 823, 824, 828 (2d Cir. 1964) (Friendly, J.). Chapman’s claim “will [not] be supported
if the Constitution or laws of the United States are given one construction or effect, and
defeated if they receive another”. Gulley v. First National Bank, 299 U.S. 109, 112 (1936).
Chapman apparently believes that, if an agreed royalty is not paid, then the license
should be ignored and the claim treated as one for infringement, but this kind of artful
pleading did not succeed in T.B. Harms and is unsound. It is just an attempt to disguise
the real nature of a dispute about how much is owed in royalties. Because the complaint
alleges that Chapman authorized Airleaf to print and sell the book, Chapman has ad-
mitted that the claim does not arise under federal law.
Nonpayment may allow an author to rescind a license and prevent future copying
and sale of his work. That would create a genuine claim under federal law, if the ex-
licensee went on printing and selling the work. See Vincent v. City Colleges of Chicago, 485
F.3d 919 (7th Cir. 2007). But Chapman does not allege that he revoked the license, and
Airleaf is not now making new copies of Chapman’s work—or anyone else’s.
A claim for money supposedly due as royalties belongs in state court. The judgment
of the district court is vacated, and the case is remanded with instructions to dismiss for
lack of jurisdiction.