Bassett Entertainment Corp. v. Mashantucket Pequot Tribe

Affirmed in part, vacated and remanded in part.[Copyrighted Material Omitted]

RICHARD A. GOREN, Framingham, MA (Ellen Rappaport Tanowitz, Rubin, Hay & Gould, P.C., Framingham, MA, on the brief), for Plaintiffs- Appellants,

DAVID S. WILLIAMS, Norwich, CT (Elizabeth Conway, Brown, Jacobson, Tillinghast, Lahan & King, P.C., Norwich, CT, on the brief), for Defendants- Appellees.

Before: LEVAL and SOTOMAYOR, Circuit Judges, and POLLACK, District Judge.*

Plaintiff Debra Bassett, doing business as Bassett Productions, appeals from the dismissal of her complaint against Defendants Mashantucket Pequot Tribe (the "Tribe"), Mashantucket Pequot Museum & Research Center (the "Museum"), Theresa Bell, and Jack Campisi. The complaint charged Defendants with copyright infringement, breach of contract, and various state-law torts. The United States District Court for the District of Connecticut (Christopher F. Droney, Judge) dismissed the copyright claims against the Tribe and the Museum1 for lack of subject matter jurisdiction, dismissed the state-law claims against the Tribe pursuant to the doctrine of tribal immunity, and dismissed all of the claims against the non-tribal Defendants upon finding the Tribe to be an "indispensable party" under Fed. R. Civ. P. 19(b). We affirm the dismissal of the copyright claims against the Tribe, although for different reasons, and vacate and remand the dismissal of the claims against the non-tribal Defendants.

A. Events giving rise to this lawsuit.

According to the allegations of the complaint: Plaintiff Debra Bassett operates a business, Bassett Productions, that produces films and television programs. Defendant Mashantucket Pequot Tribe is a federally recognized Indian tribe with a reservation located within the geographical boundaries of the State of Connecticut. Defendant Mashantucket Pequot Museum is a Connecticut corporation located on the Pequot Reservation.

In October 1994, Bassett met with representatives of the Tribe to discuss the possibility of producing a film for the Museum about the Pequot War of 1636-38. In November, Defendant Theresa Bell, acting individually and as a representative of the Tribe, signed a "confidential disclosure agreement" in which she agreed that all information received from Bassett Productions was proprietary, and was to be returned to Bassett Productions at its request. In May 1995, Defendant Jack Campisi, communicating with Bassett on behalf of the Tribe, advised her that the Tribe intended to hire her to produce the film, contingent on the negotiation of a satisfactory contract and the Tribe's acceptance of a script for the film.

In August 1995, Bassett Productions entered into a letter agreement with the Tribe (the "Letter Agreement") for the development and production of a film about the 1636-38 Pequot War. The Letter Agreement identified Bassett Productions as the "Producer" and the Tribe as the "Owner," but did not define these terms. It stipulated that Bassett Productions would "hire and supervise the development and writing of a screenplay by Keith Merrill and George Burdeau," and that the Tribe would "compensate" Bassett Productions for development costs according to an agreed schedule. It also stipulated that "at such time" that the Tribe approved the final draft of the screenplay, Bassett Productions would have exclusive rights to produce the film for exhibition at the Pequot Museum.

Some time before October 30, 1995, Bassett had delivered to the Tribe a script that she herself had written, based on a "script scenario" she had developed with assistance from her associate Allan Eckert. The script was prominently marked on its first page, "(c) 1995 Bassett Entertainment Corporation."2

On October 30, 1995, Bassett received a notice from the Tribe terminating the Letter Agreement. The notice asserted that Bassett had not "perform[ed] the contract as the parties anticipated."

Following the termination of the Letter Agreement, the Tribe continued to pursue the development and production of a film on the 1636-38 Pequot War for exhibition at the Museum. In October 1996, filming was completed on a motion picture entitled, "The Witness." Bassett asserts the Tribe intends to screen the film at the Museum "in the near future" as part of "an interstate-driven tourist attraction."

B. Bassett's lawsuit and the district court's ruling.

In September 1996, Bassett commenced this lawsuit in the United States District Court for the District of Connecticut. The complaint sought an injunction as well as other copyright remedies on the ground that the Tribe and the Museum used Bassett's copyrighted script without her consent or license in order to produce their own film; it further alleged that they breached the Letter Agreement, and that they committed various state-law torts resulting in injury to Bassett. It also charged Bell and Campisi with tortious interference with contract. The charge against Bell and Campisi was expanded in an amended complaint to allege that they infringed Bassett's copyrights in violation of federal law, while acting "on behalf of the Tribe" but "beyond the scope of authority" it could "lawfully bestow" on them.

In March 1997, Defendants moved to dismiss Bassett's complaint for lack of subject matter jurisdiction and for failure to exhaust tribal remedies. In their motion papers, Defendants argued (inter alia) that the court lacked federal question jurisdiction because Bassett's sole federal claim-her claim for copyright infringement-was "incidental to" her contract claims, and therefore did not "arise under" federal law.

The district court granted Defendants' motion to dismiss the complaint, and Bassett appealed.

Bassett advances three arguments: (1) the district court was mistaken in its impression that the copyright infringement claims against the Tribe and the Museum are "merely incidental" to the contract claims and do not "arise under" federal copyright law for purposes of 28 U.S.C. 1338(a); (2) the Tribe is not immune from suits in copyright brought by private parties, because the Copyright Act abrogated the sovereign immunity of the Indian Tribes; and (3) even if the claims against the Tribe were properly dismissed, the claims against the remaining defendants should proceed, because the Tribe is not an indispensable party under Rule 19(b).

I. Whether the district court erred in ruling that Bassett's copyright claims against the Tribe and the Museum are "merely incidental" to her contract claims and therefore do not "arise under" federal law.

28 U.S.C. 1338(a) states that federal district courts "shall" have exclusive, original jurisdiction "of any civil action arising under any Act of Congress relating to . . . copyrights." It is well-established that not every complaint that refers to the Copyright Act "arises under" that law for purposes of Section 1338(a). See, e.g., T.B. Harms Co. v. Eliscu, 339 F.2d 823, 824 (2d Cir. 1964) (Friendly, J.) (noting that this principle traces to "precedents going back for more than a century"). In particular, "the federal grant of a . . . copyright has not been thought to infuse with any national interest a dispute as to ownership or contractual enforcement turning on the facts or on ordinary principles of contract law." Id. at 826. Here, the district court, relying on our discussion in dictum in Schoenberg v. Shapolsky Publishers, Inc., 971 F.2d 926, 932-33 (2d Cir. 1992), dismissed the claims based on the conclusion that Bassett's "copyright infringement claims . . . do not 'arise under' federal copyright laws for purposes of 28 U.S.C. 1338(a), but are merely incidental to [her] state law [contract] claims." Bassett contends that the court erred in dismissing her claims on the basis of Schoenberg. She argues that her copyright claims neither depend on nor result from claims for breach of contract. She further maintains that, because she sought a remedy expressly granted by the Copyright Act, her copyright claims do "arise under" the Act pursuant to the rule of T.B. Harms.

Whether a complaint asserting factually related copyright and contract claims "arises under" the federal copyright laws for the purposes of Section 1338(a) "poses among the knottiest procedural problems in copyright jurisprudence."3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright 12.01[A], at 12-4 (1999) ("Nimmer"). See also Schoenberg, 971 F.2d at 931 ("The question of whether the breach of a contract licensing or assigning a copyright gives rise to a federal cause of action under the Copyright Act is a complex issue in a 'murky' area."). Such claims characteristically arise where the defendant held a license to exploit the plaintiff's copyright, but is alleged to have forfeited the license by breaching the terms of the licensing contract and thus to infringe in any further exploitation. See id.

Prior to our landmark decision in T.B. Harms, several district courts in the Second Circuit resolved the issue of jurisdiction under Section 1338 for "hybrid" claims raising both copyright and contract issues by attempting to discern whether the copyright issues constituted the "essence" of the dispute, or whether instead the copyright issues were "incidental to" the contract dispute. See, e.g., T.B. Harms Co. v. Eliscu, 226 F. Supp. 337, 340 (S.D.N.Y. 1964) (the district court reasoned that a suit "charging infringement . . . which is in reality merely a suit to enforce a contract . . . is not a case arising under the copyright laws") (internal quotation marks and citation omitted); Muse v. Mellin, 212 F. Supp. 315, 318 (S.D.N.Y. 1962) (finding no federal jurisdiction even though the complaint sought an injunction under the Copyright Act, because "[t]he primary and controlling purpose of the complaint [was] to secure an interpretation" of ownership rights); Cresci v. Music Publishers Holding Corp., 210 F. Supp. 253, 256 (S.D.N.Y. 1962) (finding no federal jurisdiction because "the copyrights and the renewals in them are only incidentally involved in the claim of fraud").

That approach, however, left a class of plaintiffs who suffered copyright infringement bereft of copyright remedies. Plaintiffs whose federal lawsuits were dismissed for lack of subject matter jurisdiction on the ground that their copyright claims were "incidental to" their contract claims had no way either to obtain an adjudication of infringement or to obtain relief provided by the Copyright Act, because the Act confers exclusive jurisdiction over copyright claims on federal courts. See 28 U.S.C. 1338. Such plaintiffs would be deprived of the injunctive relief, impoundment remedies, statutory damages, and attorneys fees provided by the Act. See 17 U.S.C. 502 (injunctive relief); id. 503 (impoundment of infringing articles); id. 504 (damages); id. 505 (costs and attorneys' fees). That approach had the added defect of requiring a court to make findings at the outset of the litigation that could not be discerned from the complaint but instead required a deep understanding of the dispute not usually gained until the case had been heard at trial.

In T.B. Harms, Judge Friendly recognized the complexity of the problem of defining when a case "arises under" the Copyright Act. In synthesizing Supreme Court cases that had considered the issue of federal jurisdiction in a variety of contexts, Judge Friendly established a test for this circuit that focused on whether and how a complaint implicates the Copyright Act. The plaintiff in T.B. Harms sought a declaratory judgment that he was the sole owner of renewal copyrights. See 339 F.2d at 825. At issue was whether one of the defendants had previously assigned his interest in the copyrights to the plaintiff's agent, or whether this defendant had retained his interest and had validly assigned it at a later date to a second defendant. See id. at 824-25. No claim of infringement was asserted and no relief provided by the Copyright Act was sought. The district court dismissed the action for lack of subject matter jurisdiction on the ground that the "fundamental controversy" at issue concerned the execution of an assignment, not an alleged infringement of copyright. See 226 F. Supp. at 338. The court of appeals likewise found a lack of jurisdiction, but relied on quite different reasoning. See 339 F.2d at 824-25.

Judge Friendly began his analysis by examining Supreme Court precedent addressing the question when a federal court properly exercises jurisdiction under Section 1338, which creates jurisdiction in the federal courts in "any civil action arising under any Act of Congress relating to patents . . . [and] copyrights," among others. 28 U.S.C. 1338(a). He identified two lines of authority as particularly important. First, in American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916), Justice Holmes explained that a "suit arises under the law that creates the cause of action." See T.B. Harms, 339 F.2d at 826. According to Judge Friendly, Justice Holmes' interpretation of Section 1338 explained the exercise of federal jurisdiction "in a great many cases, notably copyright and patent infringement actions, both clearly authorized by the respective federal acts, and thus unquestionably within the scope of 28 U.S.C. 1338." Id. (citation omitted). Judge Friendly observed that "in the many infringement suits that depend only on some point of fact and require no construction of federal law, no other explanation may exist." Id. Second, Judge Friendly discussed Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921), in which the Supreme Court held that a claim created by state law might still "arise under" federal law "if the complaint discloses a need for determining the meaning or application of such a law." Id. at 827.

Synthesizing the Supreme Court authorities, Judge Friendly concluded that a suit "arises under" the Copyright Act if:

(1) "[T]he complaint is for a remedy expressly granted by the Act, e.g., a suit for infringement or for the statutory royalties for record reproduction . . . ;" or,

(2) "[T]he complaint . . . asserts a claim requiring construction of the Act . . . ." Id. at 828. 3

As the suit in T.B. Harms did not fall within any of these enumerated categories, the court found that it did not "arise under" the copyright laws for purposes of Section 1338 and that jurisdiction was therefore lacking. See id. at 825-28.

The T. B. Harms test differed significantly from the essence-of-the-dispute or merely-incidental test. The analysis under T.B. Harms turns on what is alleged on the face of the complaint, while the essence-of-the-dispute or merely-incidental test looks rather at what defense will be proffered. For example, if the complaint alleges copyright infringement or seeks an injunction under the Copyright Act, under T.B. Harms the federal court has jurisdiction; under the other test, in contrast, the court must ascertain whether the defendant will defend only by reference to state law matters, such as a claim of contractual entitlement, or will raise defenses based on the Copyright Act.

The T.B. Harms test avoids problems that result from the essence-of-the-dispute test. By rejecting reliance on whether the copyright claim could be characterized as "incidental" and instead focusing the inquiry under Section 1338 on whether a plaintiff's complaint "[was] for a remedy expressly granted by the Act," T.B. Harms ensured that plaintiffs who sought copyright remedies that depended on a prior showing of contractual entitlement would not be left without the remedies promised by the Copyright Act. T.B. Harms, 339 F.2d at 828. T.B. Harms also obviated the need for courts to determine at the outset of litigation whether copyright claims were incidental to contract claims-a difficult determination to make even after discovery and trial, and one that cannot be made reliably on the basis of the complaint alone.

Judge Friendly's solution to the problem posed by Section 1338 has been widely admired by the leading copyright scholars. See, e.g., 3 Nimmer 12.01[A], at 12-4 (noting that "[a]lthough no formulation [of Section 1338] can offer watertight compartmentalization consistent with all existing precedent, the best statement is found in Judge Friendly's thoughtful synthesis of the scope of federal jurisdiction [in T.B. Harms]"); 2 William F. Patry, Copyright Law and Practice 1065, 1067 (1994) ("Patry") (applauding the "elegance" of the T.B. Harms approach, and observing that "Judge Friendly's opinion . . . has the important virtue of avoiding premature (and therefore potentially erroneous) judgments," because it places dispositive weight on elements that can be accurately ascertained from the face of the complaint).4 The T.B. Harms test has been adopted by all the circuits that have considered the question whether a suit arises under the Copyright Act for purposes of Section 1338, if the disputed issues include non-copyright matters. See Royal v. Leading Edge Prods., Inc., 833 F.2d 1, 2 (1st Cir. 1987) (noting that T.B. Harms is "[t]he most frequently cited test" and applying it)5 ; Arthur Young & Co. v. City of Richmond, 895 F.2d 967, 969-70 (4th Cir. 1990) ("Judge Friendly, in T.B. Harms Co. v. Eliscu, 339 F.2d 823 (2d Cir. 1964), set out what has remained the definitive jurisdictional test for copyright cases . . . ."); Gibraltar, P.R., Inc. v. Otoki Group, Inc., 104 F.3d 616, 619 (4th Cir. 1997) (citing T.B. Harms); Goodman v. Lee, 815 F.2d 1030, 1031 (5th Cir. 1987) (adopting the T.B. Harms test); Vestron, Inc. v. Home Box Office Inc., 839 F.2d 1380, 1381 (9th Cir. 1988) ("We have settled on Judge Friendly's formulation of copyright jurisdiction law as our test . . . ."); Rano v. Sipa Press, Inc., 987 F.2d 580, 584 (9th Cir. 1993) (same); MCA Television Ltd. v. Public Interest Corp., 171 F.3d 1265, 1269 (11th Cir. 1999) ("In Sullivan, we cited with approval Judge Friendly's articulation of the standard for jurisdiction under 28 U.S.C. 1338 . . . .")(citing Sullivan v. Naturalis, Inc., 5 F.3d 1410, 1412 (11th Cir. 1993)).

Nearly thirty years after the T.B. Harms decision, a panel of this court in Schoenberg undertook in dictum6 to state the test for determining the existence of Section 1338 jurisdiction in cases alleging violations of the Copyright Act resulting from breach of contract. The plaintiff, an author, alleged that he had licensed the defendant, a publisher, to publish plaintiff's work. The license obligated the defendant to publish within six months of plaintiff's delivery of the manuscript, to promote and market the work, and to license foreign language editions. According to plaintiff's allegations, the publisher breached numerous obligations of the license. As a result of these failures, plaintiff claimed that the license was terminated and that defendant's further publication of the work constituted an infringement. Although the appeal related to a different issue,7 the opinion undertook to state "the appropriate test under the T.B. Harms paradigm, for determining whether a suit 'arises under' the Copyright Act when it alleges infringement stemming from a breach of contract." Schoenberg, 971 F.2d at 932.

The opinion acknowledged that "[i]n T.B. Harms, Judge Friendly wrote that, 'an action 'arises under' the Copyright Act if and only if the complaint is for a remedy expressly granted by the Act," and that "[b]ecause Schoenberg is seeking damages for the alleged infringement as well as an injunction against future infringements, his complaint on its face asserts a claim 'arising under' the Copyright Act." Id. at 931. It observed, however, that notwithstanding the T.B. Harms formulation, some district courts had "looked beyond the complaint in order to determine whether the plaintiff was really concerned with the infringement of his copyright, or, alternatively, was, in fact, more interested in" free enjoyment of his property or other non-copyright issues. Id. at 932 (citing Berger v. Simon & Schuster, 631 F.Supp. 915, 919 (S.D.N.Y. 1986)). Other courts, it noted, had adopted the even "broader proposition that no claim arises under the Copyright Act whenever an infringement would necessarily result from the breach of a contract that licensed or assigned a copyright." Id. at 931 (citing Felix Cinematografica, 671 F.Supp. at 315 and Bear Creek Prods., Inc. v. Saleh, 643 F.Supp. 489, 492 n.9 (S.D.N.Y. 1986)).

In undertaking to reconcile the varying approaches of those district court opinions (and perhaps concluding that the authority of T.B. Harms extended only to disputes over copyright ownership and not to hybrid copyright/contract claims), Schoenberg created a new, complex three-step test; the first step of the test was precisely that which T.B. Harms had rejected-whether the claim for copyright remedies is "'merely incidental'" to a determination of contract rights. See id. The opinion declared that in hybrid copyright and contract cases Section 1338 jurisdiction should be analyzed in the following manner:

A district court must first ascertain whether the plaintiff's infringement claim is only "incidental" to the plaintiff's claim seeking a determination of ownership or contractual rights under the copyright. . . . If it is determined that the claim is not merely incidental, then a district court must next determine whether the complaint alleges a breach of a condition to, or a covenant of, the contract licensing or assigning the copyright. . . . [I]f a breach of a condition is alleged, then the district court has subject matter

jurisdiction. . . . But if the complaint merely alleges a breach of acontractual covenant in the agreement that licenses or assigns the copyright, then the court must undertake a third step and analyze whether the breach is so material as to create a right of rescission in the grantor. If the breach would create a right of rescission, then the asserted claim arises under the Copyright Act.

Id. at 932-33 (citations omitted).

We believe for a number of reasons that the Schoenberg test is unworkable.8 At the outset, it overlooks that, because the Copyright Act gives federal courts exclusive jurisdiction to enforce its provisions, see 28 U.S.C. 1338, a plaintiff who is denied access to a federal forum on the theory that his copyright claims are incidental to a contract dispute is thereby absolutely denied the benefit of copyright remedies. Such a denial of copyright remedies undermines the Act's capacity to protect copyright interests. A plaintiff with meritorious copyright claims and entitlement to the special remedies provided by the Act is deprived of these remedies merely because the first hurdle of proving entitlement is a showing of a contractual right.9

A second problem with the Schoenberg test is that it is vague. Schoenberg characterizes the first part of its test in two ways: whether "the 'essence' of the plaintiff's claim" is in contract or copyright, id. at 933, or whether the "infringement claim is only 'incidental' to the plaintiff's claim seeking determination of ownership or contractual rights under the copyright," id. at 932. The meaning of either of these phrases is difficult to discern. At one juncture, Schoenberg suggests that the focus of inquiry should be on the plaintiff's motivations ("whether the plaintiff was really concerned with the infringement of his copyright or, alternatively, was, in fact, more interested in whether he would be allowed to enjoy his property free from the contract claims of the defendant"). Id. at 932. District courts applying the "only incidental" test, in turn, have construed it in various other ways. See Athanasius-Design v. Cumberland Homes Ltd., No. 96 C 6764, 1997 WL 176448, at *3-4 (N.D. Ill. Apr. 4, 1997) (adopting the Schoenberg test and noting: (1) that determining if the copyright claim is incidental (prong one) is "a task easier said than done," and (2) that determining if the complaint alleged a breach of a condition or of a covenant (prong two) is "no small feat" because, inter alia, the allegations about the contract contained in the complaint were so cursory).10

The Schoenberg test suffers from other defects as well. Because the analysis under Schoenberg is based more on the defense than on the demands asserted in the complaint, the plaintiff's attorney can have no way of telling whether the action should be filed within the exclusive jurisdiction of the federal court or in state court.11 Furthermore, the complaint will not necessarily reveal whether its claim of infringement and prayer for copyright remedies is "incidental to" a contract dispute. Indeed, it might not mention the assertedly forfeited license at all. Instead, it might simply state that the defendant is infringing plaintiff's copyright and demand an injunction, leaving it to the defendant's answer to claim justification in the license (to which the plaintiff plans to reply that the defendant's license was terminated as a result of its breach.) A court examining such a complaint would have no idea whether the "essence" of plaintiff's claim would turn out to be a matter of contract, much less whether plaintiff's "real[] concern[]" lay in the infringement, or whether plaintiff was "more interested" in peaceful "enjoy[ment of] his property." Schoenberg, 971 F.2d at 932.

Nor can the court necessarily rely on the defendant to bring the question of subject matter jurisdiction promptly to its attention. When a complaint raises copyright issues, the defendant, like the plaintiff, may think it desirable to have them adjudicated in federal court, rather than entrust them to a state court, which has no experience with the Copyright Act. The consequence may well be that the federal court will not discover the predominance of contract issues, and consequently its own supposed lack of jurisdiction under Schoenberg, until well into trial; indeed, the discovery may not be made until the party that lost at trial (perhaps even the plaintiff) argues on appeal, for the first time, that the copyright issues were incidental and that the court therefore lacked subject matter jurisdiction.

Furthermore, even if the complaint sets forth in full the allegations relating to the license, and the defendant promptly moves to dismiss, the Schoenberg test requires the court to make complex factual determinations relating to the merits at the outset of the litigation-before the court has any familiarity with the case. Ascertaining what are a plaintiff's principal motives in bringing suit, and what issues will loom largest in the case, may well require extensive hearings and fact finding. The need for such fact finding recurs at each stage of Schoenberg's three-step formula. Thus, if a court finds that a copyright claim is not "merely incidental to" a contract claim (step one), it must still determine whether the contractual term alleged to have been breached was in the nature of a covenant or a condition (step two). And if it finds that the alleged breach was of a covenant, the court must next determine "whether the breach is so material as to create a right of rescission," 971 F.2d at 933, failing which the case must be dismissed (step three).12 This third inquiry in particular, which entails an assessment of the importance of the particular covenant, as well as the seriousness of the breach, raises questions that are not appropriately, easily or reliably answered at the start of litigation.

Finally, Schoenberg failed to recognize that in deviating from the test explained in T.B. Harms, it was failing to follow the governing Supreme Court authority on which T.B. Harms relied. Schoenberg's reliance on whether the disputed issues focus on matters of contract ownership rather than copyright cannot be reconciled with Justice Holmes' formulation in American Well Works that a "suit arises under the law that creates the cause of action." 241 U.S. at 260. The test, furthermore, is at odds with the well-established approach to federal question jurisdiction, pursuant to which jurisdiction is determined by ascertaining whether the plaintiff's complaint asserts a right under federal law. See, e.g., Taylor v. Anderson, 234 U.S. 74, 75 (1914) ("[W]hether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute, . . . must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration . . . ."); The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913) (Holmes, J.) ("[T]he party who brings a suit is master to decide what law he will rely upon, and therefore does determine whether he will bring a 'suit arising under' the patent or other law of the United States by his declaration or bill."); cf. Derry v. Wyer, 265 F.2d 804, 808 (2d Cir. 1959) ("[t]he sufficiency of jurisdiction should be determined once and for all at the threshold and if found to be present then should continue until final disposition of the action.").

For the reasons discussed above, we conclude that, for claims of infringement arising from, or in the context of, an alleged contractual breach, this circuit's standard for determining jurisdiction under Section 1338 is furnished by T.B. Harms, and not by Schoenberg.13 When a complaint alleges a claim or seeks a remedy provided by the Copyright Act, federal jurisdiction is properly invoked. See T.B. Harms, 339 F.2d at 828.

Applying the T.B. Harms standard to this case leads us to conclude that Bassett's copyright claims "arise under" the Copyright Act for purposes of Section 1338. Unlike the complaint in T.B. Harms, the complaint in this case alleges that the defendants, without authority, used plaintiff's copyrighted script to produce a new film intended and advertised for imminent exhibition. The amended complaint alleged copyright infringement and sought "a remedy expressly granted by the Act," T.B. Harms, 339 F.2d at 828, specifically, an injunction against further infringement of Bassett's copyrighted script. Because the complaint alleges the defendants violated the Copyright Act and seeks the injunctive remedy provided by the Act, under the rule of T.B. Harms, the action falls within the jurisdictional grant of Section 1338. The district court's contrary holding was in error.14

II. Whether the Tribe is immune from suits in copyright brought by private parties.

The Tribe contends that, even if the court has federal question jurisdiction over the copyright claims under Section 1338, the Tribe's sovereign immunity from suit bars the court from adjudicating them. Bassett maintains that, to the extent the Tribe enjoys such immunity, it implicitly waived it by participating in the interstate, nongovernmental, commercial activities that gave rise to this lawsuit. We agree with the Tribe's contention, reject Bassett's, and therefore affirm on other grounds the district court's judgment dismissing the copyright claims against the Tribe.

It is by now well established that Indian tribes possess the common-law immunity from suit traditionally enjoyed by sovereign powers. See, e.g., Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991); United States v. United States Fidelity & Guar. Co., 309 U.S. 506, 512 (1940). It is also well established that Congress possesses plenary control over tribal sovereignty, and the