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JEFRI AALMUHAMMED,
Plaintiff-Appellant,

v.

SPIKE LEE; FORTY ACRES AND A
No. 99-55224
MULE FILMWORKS, INC.; BY ANY
MEANS NECESSARY CINEMA, INC.;
D.C. No.
WARNER BROTHERS, a division of
CV-95-07885-JSL
Time-Warner Entertainment LP;
OPINION
VICTOR COMPANY OF JAPAN
LIMITED; LARGO INTERNATIONAL
N.V.; LARGO ENTERTAINMENT, INC.;
JCV ENTERTAINMENT, INC.,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
J. Spencer Letts, District Judge, Presiding

Submitted April 19, 19991
Pasadena, California
Filed February 4, 2000

Before: William C. Canby, Jr., John T. Noonan, and
Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge Kleinfeld

practices for the characters; and edited parts of the movie dur-
ing post production. Once production ended, Aalmuhammed
met with numerous Islamic organizations to persuade them
that the movie was an accurate depiction of Malcolm X's life.

Aalmuhammed never had a written contract with Warner
Brothers, Lee, or Lee's production companies, but he
expected Lee to compensate him for his work. He did not
intend to work and bear his expenses in New York and Egypt
gratuitously.

In the summer of 1992, Aalmuhammed asked for a writing
credit as a co-writer of the film, but was refused. The film
credited Aalmuhammed only as an Islamic Technical
Consultant." In November 1995, Aalmuhammed applied for
a copyright with the U.S. Copyright Office, claiming he was
a co-creator, co-writer, and co-director of the movie. The
Copyright Office issued him a copyright registration certifi-
cate, but advised him that his claims conflicted with previous
registrations of the film.

On November 17, 1995, Aalmuhammed filed a complaint
against Spike Lee, his production companies, and Warner
Brothers, (collectively Lee) and their foreign distributors
(Largo), alleging breach of implied contract, quantum meruit,
and unjust enrichment, and federal (Lanham Act) and state
unfair competition claims. The suit sought declaratory relief
and an accounting under the Copyright Act. The district court
dismissed some of the claims under Rule 12(b)(6) and the rest
on summary judgment.

Aalmuhammed appealed, claiming that (1) the movie Mal-
colm X was a "joint work" of which he was an author, thus
making him a co-owner of the copyright; (2) Lee accepted his
services, knowing that they were not being provided gratu-
itously, yet paid him neither the fair value of his services nor
even 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 statute
prohibiting unfair competition.

Lee argued that Aalmuhammed's claim that he was one of
the authors of a joint work was barred by the statute of limita-
tions, and that Aalmuhammed's claims that he was not paid
the full value of his services were barred by California's two
year statute of limitations. Aalmuhammed argued that New
York's six year statute of limitations applied.

[1] A claim of authorship of a joint work must be brought
within three years of when it accrues. Because creation rather
than infringement is the gravamen of an authorship claim, the
claim accrues on account of creation, not subsequent infringe-
ment, and is barred three years from "plain and express
repudiation" of authorship.

[2] The movie credits plainly and expressly repudiated
authorship, by listing Aalmuhammed far below the more
prominent names, as an "Islamic technical consultant." That
repudiation, though, was less than three years before the law-
suit was filed. The record left open a genuine issue of fact as
to whether authorship was repudiated before that. A trier of
fact could have construed that the question of authorship was
unresolved. There was a genuine issue of fact as to whether
Aalmuhammed's claim was barred by limitations. It had to be
determined whether there is a genuine issue of fact as to
whether Aalmuhammed was an author of a "joint work."

[3] For a work to be a "joint work" there must be (1) a
copyrightable work, (2) two or more "authors, " and (3) the
authors must intend their contributions be merged into insepa-
rable or interdependent parts of a unitary whole. In a "joint
work" each author must make an independently copyrightable
contribution to the disputed work. Malcolm X  was a copy-
rightable work, and the movie was intended by everyone
involved with it to be a unitary whole. Aalmuhammed made
substantial and valuable contributions to the movie. Aal-
muhammed presented a genuine issue of fact as to whether he
made a copyrightable contribution.

[4] However, a "joint work" includes "two or more
authors." 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 joint
work, and authorship is not the same thing as making a valu-
able and copyrightable contribution. The issue was whether
Aalmuhammed was an author of the joint work within the
meaning of 17 U.S.C. S 101.

[5] The definition of "author" requires more than a minimal
creative or original contribution to the work. An author is the
person 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, would
generally limit authorship to someone at the top of the screen
credits--someone who has artistic control.

[6] Several factors suggest themselves as among the criteria
for joint authorship in the absence of contract. First, an author
superintends the work by exercising control. Second, putative
coauthors make objective manifestations of a shared intent to
be coauthors. Third, the audience appeal of the work turns on
both contributions and the share of each in its success cannot
be appraised.

[7] Aalmuhammed did not have superintendence of the
work. 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 work
would not benefit in the slightest unless Lee chose to accept
them. Aalmuhammed lacked control over the work, and
absence of control is strong evidence of the absence of co-
authorship.

[8] Aalmuhammed was not the inventive or mastermind of
the 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 the
issuance of a copyright registration certificate could not have
prevented 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 district
court correctly granted summary judgment dismissing his
claims for declaratory judgment and an accounting resting on
co-authorship.

[11] The question on review of Aalmuhammed's claims of
unjust enrichment was limited to which state's statute of limi-
tations applies. [12] The applicable rule required that the court
apply the law of the state whose interest would be more
impaired if its law were not applied.

[13] California's interest in protecting its residents from
stale claims arising from work done outside the state was
weak. 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 was
considerably more substantial, immediate and concrete than
California's. New York would have suffered more damage to
its 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 of
when they accrued. The dismissal of Aalmuhammed's
implied contract, quantum meruit, and unjust enrichment
claims had to be vacated and remand was required.

[15] The failure to give appropriate credit for a film may
be actionable under the Lanham Act. Whether enough of Aal-
muhammed's proposed script was used verbatim to amount to
a violation went to the evidence and could not sustain a
12(b)(6) dismissal.

[16] It could not be determined whether the acts of the for-
eign distributors Aalmuhammed complained of occurred
wholly outside of the United States. Therefore, dismissal
based on the extraterritoriality of Aalmuhammed's claim
against 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 the
defendants-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 coauthorship
of the movie Malcolm X. We reject the "joint work" claim but
remand for further proceedings on a quantum meruit claim.

I. FACTS

In 1991, Warner Brothers contracted with Spike Lee and
his production companies to make the movie Malcolm X, to
be based on the book, The Autobiography of Malcolm X. Lee
co-wrote the screenplay, directed, and co-produced the movie,
which starred Denzel Washington as Malcolm X. Washington
asked Jefri Aalmuhammed to assist him in his preparation for
the starring role because Aalmuhammed knew a great deal
about 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 a
documentary film about Malcolm X.

Aalmuhammed joined Washington on the movie set. The
movie was filmed in the New York metropolitan area and
Egypt. Aalmuhammed presented evidence that his involve-
ment in making the movie was very extensive. He reviewed
the shooting script for Spike Lee and Denzel Washington and
suggested extensive script revisions. Some of his script revi-
sions were included in the released version of the film; others
were filmed but not included in the released version. Most of
the revisions Aalmuhammed made were to ensure the reli-
gious and historical accuracy and authenticity of scenes
depicting Malcolm X's religious conversion and pilgrimage to
Mecca.

Aalmuhammed submitted evidence that he directed Denzel
Washington and other actors while on the set, created at least
two entire scenes with new characters, translated Arabic into
English for subtitles, supplied his own voice for voice-overs,
selected the proper prayers and religious practices for the
characters, 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 production
ended, 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 Warner
Brothers, Lee, or Lee's production companies, but he
expected Lee to compensate him for his work. He did not
intend to work and bear his expenses in New York and Egypt
gratuitously. Aalmuhammed ultimately received a check for
$25,000 from Lee, which he cashed, and a check for $100,000
from Washington, which he did not cash.

During the summer before Malcolm X's November 1992
release, Aalmuhammed asked for a writing credit as a co-
writer of the film, but was turned down. When the film was
released, 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. Copyright
Office, 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 that
his "claims conflict with previous registrations " of the film.

On November 17, 1995, Aalmuhammed filed a complaint
against Spike Lee, his production companies, and Warner
Brothers, (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 and
an accounting under the Copyright Act. In addition, the com-
plaint alleged breach of implied contract, quantum meruit, and
unjust enrichment, and federal (Lanham Act) and state unfair
competition claims. The district court dismissed some of the
claims under Rule 12(b)(6) and the rest on summary judg-
ment.

II. ANALYSIS

A. Copyright claim

Aalmuhammed claimed that the movie Malcolm X was a
"joint work" of which he was an author, thus making him a
co-owner of the copyright.2 He sought a declaratory judgment
to that effect, and an accounting for profits. He is not claiming
copyright merely in what he wrote or contributed, but rather
in 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 is
one of the authors of a joint work is barred by the applicable
statute of limitations. A claim of authorship of a joint work
must be brought within three years of when it accrues.5
Because creation rather than infringement is the gravamen of
an 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 repudiated
authorship, by listing Aalmuhammed far below the more
prominent names, as an "Islamic technical consultant." That
repudiation, though, was less than three years before the law-
suit was filed. The record leaves open a genuine issue of fact
as to whether authorship was repudiated before that. Aal-
muhammed testified in his deposition that he discussed with
an executive producer at Warner Brothers his claim to credit
as one of the screenwriters more than three years before he
filed suit. Defendants argue that this discussion was an
express 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 it
further 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 to
whether the claim is barred by limitations, so we must deter-
mine whether there is a genuine issue of fact as to whether
Aalmuhammed was an author of a "joint work."

[3] Aalmuhammed argues that he established a genuine
issue of fact as to whether he was an author of a "joint work,"
Malcolm X. The Copyright Act does not define "author," but
it 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."8
The statutory language establishes that for a work to be a
"joint work" there must be (1) a copyrightable work, (2) two
or more "authors," and (3) the authors must intend their con-
tributions be merged into inseparable or interdependent parts
of a unitary whole. A "joint work" in this circuit "requires
each author to make an independently copyrightable
contribution" to the disputed work.9  Malcolm X is a copyright-
able work, and it is undisputed that the movie was intended
by everyone involved with it to be a unitary whole. It is also
undisputed that Aalmuhammed made substantial and valuable
contributions to the movie, including technical help, such as
speaking Arabic to the persons in charge of the mosque in
Egypt, scholarly and creative help, such as teaching the actors
how to pray properly as Muslims, and script changes to add
verisimilitude to the religious aspects of the movie. Speaking
Arabic to persons in charge of the mosque, however, does not
result in a copyrightable contribution to the motion picture.
Coaching of actors, to be copyrightable, must be turned into
an expression in a form subject to copyright.10 The same may
be said for many of Aalmuhammed's other activities. Aal-
muhammed has, however, submitted evidence that he rewrote
several specific passages of dialogue that appeared in
Malcolm X, and that he wrote scenes relating to Malcolm X's
Hajj 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 independently
copyrightable. 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's
contributions would be merged into interdependent parts of
the movie as a unitary whole. Aalmuhammed maintains that
he 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 "joint
work" includes "two or more authors."11 Aalmuhammed
established that he contributed substantially to the film, but
not that he was one of its "authors." We hold that authorship
is required under the statutory definition of a joint work, and
that authorship is not the same thing as making a valuable and
copyrightable contribution. We recognize that a contributor of
an expression may be deemed to be the "author " of that
expression for purposes of determining whether it is indepen-
dently copyrightable. The issue we deal with is a different and
larger one: is the contributor an author of the joint work
within the meaning of 17 U.S.C. S 101.

By statutory definition, a "joint work" requires "two or
more authors."12 The word "author" is taken from the tradi-
tional activity of one person sitting at a desk with a pen and
writing something for publication. It is relatively easy to
apply the word "author" to a novel. It is also easy to apply the
word to two people who work together in a fairly traditional
pen-and-ink way, like, perhaps, Gilbert and Sullivan. In the
song, "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 existence
to both men, Sir William Gilbert and Sir Arthur Sullivan, as
its creative originator. But as the number of contributors
grows and the work itself becomes less the product of one or
two individuals who create it without much help, the word is
harder to apply.

Who, in the absence of contract, can be considered an
author of a movie? The word is traditionally used to mean the
originator or the person who causes something to come into
being, or even the first cause, as when Chaucer refers to the
"Author of Nature." For a movie, that might be the producer
who raises the money. Eisenstein thought the author of a
movie was the editor. The "auteur" theory suggests that it
might be the director, at least if the director is able to impose
his artistic judgments on the film. Traditionally, by analogy to
books, the author was regarded as the person who writes the
screenplay, but often a movie reflects the work of many
screenwriters. Grenier suggests that the person with creative
control tends to be the person in whose name the money is
raised, perhaps a star, perhaps the director, perhaps the pro-
ducer, with control gravitating to the star as the financial
investment in scenes already shot grows.13  Where the visual
aspect of the movie is especially important, the chief cinema-
tographer might be regarded as the author. And for, say, a
Disney 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 the
person who makes the lithograph from it. Oscar Wilde, the
person whose picture was at issue, doubtless offered some
creative advice as well. The Court decided that the photogra-
pher was the author, quoting various English authorities: "the
person who has superintended the arrangement, who has actu-
ally formed the picture by putting the persons in position, and
arranging the place where the people are to be -- the man
who 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, or
imagination."15 The Court said that an "author," in the sense
that the Founding Fathers used the term in the Constitution,16
was " `he to whom anything owes its origin; originator;
maker; one who completes a work of science or literature.' "17

Answering a different question, what is a copyrightable
"work," as opposed to who is the "author, " the Supreme Court
held in Feist Publications that "some minimal level of
creativity" or "originality" suffices. 18 But that measure of a
"work" would be too broad and indeterminate to be useful if
applied to determine who are "authors" of a movie. So many
people might qualify as an "author" if the question were lim-
ited to whether they made a substantial creative contribution
that 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 movie
credits because all of their creative contributions really do
matter. It is striking in Malcolm X how much the person who
controlled the hue of the lighting contributed, yet no one
would use the word "author" to denote that individual's rela-
tionship to the movie. A creative contribution does not suffice
to establish authorship of the movie.
[5] Burrow-Giles, in defining "author," requires more than
a minimal creative or original contribution to the work.19
Burrow-Giles is still good law, and was recently reaffirmed in
Feist Publications.20 Burrow-Giles and Feist Publications
answer two distinct questions; who is an author, and what is
a copyrightable work.21 Burrow-Giles defines author as the
person to whom the work owes its origin and who superin-
tended the whole work, the "master mind." 22 In a movie this
definition, in the absence of a contract to the contrary, would
generally limit authorship to someone at the top of the screen
credits, sometimes the producer, sometimes the director, pos-
sibly the star, or the screenwriter -- someone who has artistic
control. After all, in Burrow-Giles the lithographer made a
substantial copyrightable creative contribution, and so did the
person who posed, Oscar Wilde, but the Court held that the
photographer was the author.23

The Second and Seventh Circuits have likewise concluded
that contribution of independently copyrightable material to a
work intended to be an inseparable whole will not suffice to
establish authorship of a joint work.24  Although the Second
and Seventh Circuits do not base their decisions on the word
"authors" in the statute, the practical results they reach are
consistent with ours. These circuits have held that a person
claiming to be an author of a joint work must prove that both
parties intended each other to be joint authors. 25 In determin-
ing whether the parties have the intent to be joint authors, the
Second Circuit looks at who has decision making authority,
how the parties bill themselves, and other evidence. 26

In Thomson v. Larson, an off-Broadway playwright had
created a modern version of La Boheme, and had been ada-
mant throughout its creation on being the sole author.27 He
hired a drama professor for "dramaturgical assistance and
research," agreeing to credit her as "dramaturg" but not
author, but saying nothing about "joint work" or copyright.28
The playwright tragically died immediately after the final
dress rehearsal, just before his play became the tremendous
Broadway hit, Rent.29 The dramaturg then sued his estate for
a declaratory judgment that she was an author of Rent as a
"joint work," and for an accounting.30 The Second Circuit
noted that the dramaturg had no decision making authority,
had neither sought nor was billed as a co-author, and that the
defendant entered into contracts as the sole author. 31 On this
reasoning, the Second Circuit held that there was no intent to
be joint authors by the putative parties and therefore it was
not a joint work.32

[6] Considering Burrow-Giles, the recent cases on joint
works33 (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 Thiswill
likely be a person "who has actually formed the picture by
putting the persons in position, and arranging the place where
the people are to be--the man who is the effective cause of
that,"37 or "the inventive or master mind" who "creates, or
gives effect to the idea."38 Second, putative coauthors make
objective manifestations of a shared intent to be coauthors, as
by denoting the authorship of The Pirates of Penzance as
"Gilbert and Sullivan."39 We say objective manifestations
because, were the mutual intent to be determined by subjec-
tive intent, it could become an instrument of fraud, were one
coauthor to hide from the other an intention to take sole credit
for the work. Third, the audience appeal of the work turns on
both contributions and "the share of each in its success cannot
be appraised."40 Control in many cases will be the most
important factor.

The best objective manifestation of a shared intent, of
course, is a contract saying that the parties intend to be or not
to be co-authors. In the absence of a contract, the inquiry must
of necessity focus on the facts. The factors articulated in this
decision and the Second and Seventh Circuit decisions cannot
be reduced to a rigid formula, because the creative relation-
ships to which they apply vary too much. Different people do
creative work together in different ways, and even among the
same people working together the relationship may change
over 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 has
actually formed the picture by putting the persons in position,
and arranging the place . . . ."42 Spike Lee was, so far as we
can tell from the record. Aalmuhammed, like Larson's drama-
turg, could make extremely helpful recommendations, but
Spike Lee was not bound to accept any of them, and the work
would not benefit in the slightest unless Spike Lee chose to
accept them. Aalmuhammed lacked control over the work,
and absence of control is strong evidence of the absence of
co-authorship.

Also, neither Aalmuhammed, nor Spike Lee, nor Warner
Brothers, made any objective manifestations of an intent to be
coauthors. Warner Brothers required Spike Lee to sign a
"work for hire" agreement, so that even Lee would not be a
co-author and co-owner with Warner Brothers. It would be
illogical to conclude that Warner Brothers, while not wanting
to permit Lee to own the copyright, intended to share owner-
ship with individuals like Aalmuhammed who worked under
Lee's control, especially ones who at the time had made
known no claim to the role of co-author. No one, including
Aalmuhammed, made any indication to anyone prior to litiga-
tion that Aalmuhammed was intended to be a co-author and
co-owner.

[8] Aalmuhammed offered no evidence that he was the
"inventive or master mind" of the movie. He was the author
of another less widely known documentary about Malcolm X,
but was not the master of this one. What Aalmuhammed's
evidence showed, and all it showed, was that, subject to Spike
Lee's authority to accept them, he made very valuable contri-
butions to the movie. That is not enough for co-authorship of
a joint work.

The Constitution establishes the social policy that our con-
struction of the statutory term "authors" carries out. The
Founding Fathers gave Congress the power to give authors
copyrights in order "[t]o promote the progress of Science and
useful arts."43 Progress would be retarded rather than pro-
moted, if an author could not consult with others and adopt
their useful suggestions without sacrificing sole ownership of
the work. Too open a definition of author would compel
authors to insulate themselves and maintain ignorance of the
contributions others might make. Spike Lee could not consult
a 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 proposes
would extend joint authorship to many "overreaching
contributors,"44 like the dramaturg in Thomson, and deny sole
authors "exclusive authorship status simply because another
person render[ed] some form of assistance."45 Claimjumping
by research assistants, editors, and former spouses, lovers and
friends would endanger authors who talked with people about
what they were doing, if creative copyrightable contribution
were all that authorship required.

[9] Aalmuhammed also argues that issuance of a copyright
registration certificate to him establishes a prima facie case
for ownership. A prima facie case could not in any event pre-
vent summary judgment in the presence of all the evidence
rebutting his claim of ownership. "The presumptive validity
of the certificate may be rebutted and defeated on summary
judgment."46 The Copyright Office stated in its response to
Aalmuhammed's application for copyright (during the pen-
dency of this litigation) that his claims "conflict with previous
registration claims," and therefore the Copyright Office had
"several questions" for him. One of the questions dealt with
the "intent" of "other authors," i.e., Warner Brothers. The evi-
dence discussed above establishes without genuine issue that
the answers to these questions were that Warner Brothers did
not intend to share ownership with Aalmuhammed.

[10] Because the record before the district court established
no genuine issue of fact as to Aalmuhammed's co-authorship
of Malcolm X as a joint work, the district court correctly
granted summary judgment dismissing his claims for declara-
tory judgment and an accounting resting on co-authorship.

B. Quantum meruit

Aalmuhammed alleged in his complaint that defendants
accepted his services, knowing that they were not being pro-
vided gratuitously, yet paid him neither the fair value of his
services 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 the
movie to be shot inside (Aalmuhammed is a Muslim and was
the only Arabic-speaking person in the production crew),
taught the actors how to pray as Muslims and directed the
prayer scenes, and talked to Islamic authorities after the
movie was made to assure their support when it was exhib-
ited. These services were very important. The movie would be
a dark tale of hate, but for the redemptive, uplifting Islamic
religious scenes.

[11] All the services were performed in New York and in
Egypt (where the Hajj scenes were shot). Aalmuhammed's
fifth, sixth and seventh claims articulated this claim variously
as quasicontract, quantum meruit, and unjust enrichment.
These claims are different from Aalmuhammed's claim to
authorship of a joint work. Even though he was not an author,
it is undisputed that he made a substantial contribution to the
film. It may be that the producer or director, seeing that Aal-
muhammed was performing valuable and substantial services
and expending substantial amounts for travel and lodging, in
the apparent expectation of reimbursement, had a duty to sign
him up as an employee or independent contractor, obtain his
acknowledgment that he was working gratuitously or perhaps
for Denzel Washington, or eject him from the set. 47 We need
not decide that, because the question on review is limited to
which state's statute of limitations applies.

The defendants moved to dismiss these claims for failure to
state a claim under Rule 12(b)(6), on the ground that the
claims were barred by California's two year statute of limita-
tions. Aalmuhammed argued that New York's six year statute
of limitations applied. The district court granted the motion to
dismiss, applying California's shorter statute.

[12] The parties agree that the district court correctly used
law of the forum, California, as the source of its rule for
choice of law. The applicable rule required, in this case, that
"the court must apply the law of the state whose interest
would be more impaired if its law were not applied."48
Defendants argue that only California had an interest in the
application of its statute of limitations, not New York. Their
theory is that the defendant corporations have their principal
places of business in California, Aalmuhammed resided in
neither state (he lives in Florida, though he spent the months
of shooting time in New York and Egypt), and Aalmuham-
med filed his lawsuit in California.

[13] The defense argument is unpersuasive. The question is
which state's interest would suffer more by the application of
the other's law.49 The strength of the interest is also a factor,
however.50 California's interest in protecting its residents from
stale claims arising from work done outside the state is a
weak one: "[t]he residence of the parties is not the determin-
ing factor in a choice of law analysis."51 New York's interest
in governing the remedies available to parties working in new
York is far more significant.52 New York's connection with
Aalmuhammed's claim is considerably more substantial,
immediate and concrete than California's. We conclude that
New York would suffer more damage to its interest if Califor-
nia law were applied than would California if New York law
were applied.

[14] Because New York has the stronger interest and would
suffer more damage than California if its law were not
applied, New York's six year statute of limitations governs.
The claims were brought within six years of when they
accrued. 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 competition

Aalmuhammed claimed that defendants passed off his
scriptwriting, 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 under
Rule 12(b)(6), for failure to state a claim upon which relief
can 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 palming
off" actionable under the Lanham Act.57  And we have held
that "actions pursuant to California Business and Professions
Code S 17200 are substantially congruent to claims made
under the Lanham Act."58 Defendants argue that not enough
of Aalmuhammed's proposed script was used verbatim to
amount 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 "substantially
rewrote and expanded the dialogue for various entire scenes"
and otherwise alleged extensive and substantial use of his
work in the final movie. We need not determine whether Aal-
muhammed established a genuine issue of fact regarding
unfair competition, because the claim never got as far as sum-
mary judgment in the district court. We reverse the dismissal
of these two claims.
58 Cleary v. News Corp., 30 F.3d 1255, 1262-63 (9th Cir. 1994).

D. Conduct abroad

The district court dismissed Aalmuhammed's claims
against the Largo defendants under Rule 12(b)(6) for failure
to state a claim. The dismissal was based on our decision in
Subafilms, that acts of copyright infringement that occur
wholly outside of the United States are not actionable under
the U.S. Copyright Act.59

[16] The complaint does not say whether the Largo defen-
dants' conduct occurred outside the United States. Defendants
argue that it does, by referring to them as "the film's foreign
distributors." But it also says that their principal place of busi-
ness is in California. These allegations leave room for proof
that the conduct that the Largo defendants engaged in took
place within California, even though it had consequences
abroad. We cannot tell from the complaint whether foreign
distributors do their work in foreign countries, or do it by fax,
phone, and email from California. We therefore reverse the
dismissal based on extraterritoriality of the claims against the
Largo defendants.

AFFIRMED in part, REVERSED and REMANDED in
part. Each party to bear its own costs.
_______________________________________________________________

FOOTNOTES

1 The panel unanimously finds this case suitable for decision without
oral 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 want
of jurisdiction. The District Court had entered a judgment that stated "The
Court may amend or amplify this order with a more specific statement of
the grounds for its decision." National Distrib. Agency v. Nationwide
Mutual Ins. Co., 117 F.3d 432 (9th Cir. 1997), held that the identical lan-
guage prevented review because "the court left open the possibility that
the 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 court
granted appellant's motion to submit the case without oral argument, to
take judicial notice of the briefs and excerpts filed in 97-55403, and to
allow 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 (9th
Cir. 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 (9th
Cir. 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. Trinity
Theatre, Inc., 13 F.3d 1061 (7th Cir. 1994); Childress v. Taylor, 945 F.2d
500 (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., 140
F.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 which
the defendant uses to his economic advantage, without any express agree-
ment to pay the plaintiff for such use, . . . the plaintiff will be able [in
some circumstances] to recover the reasonable value of the use of the idea
in 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., 816
F.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., 816
F.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 also

59 See Subafilms, Ltd. v. MGM-Pathe Communications, 24 F.3d 1088,
1095-96 (9th Cir. 1994) (en banc).