Plaintiff brought this action seeking damages against the Defendants in the sum of $100,000.00 for alleged copyright infringement, intellectual theft, unlawful and unauthorized copying and unlawful and unauthorized selling and distribution.

Plaintiff contends that in 1999 she wrote a book based on a true story accounting what happened to her son who was born with lead poison in 1996. The book was entitled "A Child Is A Terrible Thing To Waste" and was published by United Parents Against Lead in 1999. Defendant Melchisedek Shabazz-Allah, hereinafter referred to as Defendant Shabazz-Allah, had a relationship with Plaintiff wherein the parties held themselves out to be common law husband and wife. The parties are the parents of a six year old son. Defendant A&B Books Distributors Warehouse DBA A&B Book Store, Inc., hereinafter referred to as Defendant A&B Books, is the owner and operator of a bookstore.

Plaintiff alleges that Defendant Shabazz-Allah, without her authorization, consent or knowledge, caused to have an identical book bearing the same title with the same cover page published and distributed by Poole & Smith Publishing Company in 1999. Plaintiff did not receive any proceeds from the sale of this book. Plaintiff further alleges that Defendant A&B Books caused to have a third book identical in contents with a different cover page published and distributed without her authorization, consent or knowledge. Plaintiff did not receive any proceeds from the sale of the third book.

Defendant Shabazz-Allah alleges that based on their personal relationship, Plaintiff

authorized him and gave him verbal permission to oversee the sale and distribution of the books. Defendant Shabazz-Allah further alleges that Plaintiff was aware that Defendant A&B Books were given a limited number of books to sell in their bookstore. [*2]

Defendant A&B Books alleges that they were not the printer, publisher or distributor of the book. That, at the request of Defendant Shabazz-Allah, they agreed to sell ten copies of the book in their bookstore. That they sold two copies and returned the remaining ten copies to Defendant Shabazz-Allah.

Both Defendants alleges that Plaintiff does not have standing to bring this action because at the time Plaintiff commenced this action she did not have Copyrights to the book "A Child Is A Terrible Thing To Waste". Plaintiff did not obtain Copyrights to the book until October 27, 2006, the Summons & Complaint was filed February 26, 2006. Defendants further alleges that prior to October 27, 2006, Plaintiff did not have sole or exclusive control of printing, distribution and sale of the book.

There is no dispute that plaintiff had not obtain Copyrights to her book in 1999. Therefore, plaintiff has no statutory copyright claim which claim would be under the exclusive jurisdiction of the Federal courts. State courts have jurisdiction over all common law copyright cases.

Common law copyright is the term applied to an author's proprietary interest in his literary or artistic creations before they have been generally available to the public. However, it is extinguished immediately upon publication of the work by the author (Estate of Hemingway v. Random Houses, Inc., 23 NY2d 341). Here, plaintiff's common law copyright was therefore extinguished at the time of publication of her book by United Parents Against Lead in 1999.

When a book is unpatented and uncopyrighted, state law does not prohibit the copying of the book or award damages for such copying (Sears, Roebuck & Co. v. Stiffed Co. 376 US 225,226, 84 S. Ct. 784). When plaintiff placed her book in the public domain, anyone who saw or bought one was free to make an exact copy, and to market the reproduction. If the copy was represented to be the defendant's product, the deception known as "palming off",would be treated as unfair competition, but the process of copying and selling is itself not actionable (Mastro Plastcs Corp. V. Emenee Industries, Inc. 16 AD2d 420).

Here, the publication, distribution and sale of the book by the defendants was in 1999, when plaintiff had no statutory or common law copyright. Therefore, defendants could reproduce and sell plaintiff's book without incurring liability as long as there was no palming off. Since there is no indication that defendants were claiming the book as being their very own, plaintiff has no actionable right in the defendants' use of her book. Accordingly, her complaint is hereby dismissed.

This constitutes the decision and order of the court.

Dated: March 1, 2007

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Sylvia G. Ash, J. C. C. [*3]