original complaint was filed, this is an argument that should have been made prior to
the entry of judgment. Consequently, Brady insists that relief is not called for under
Rule 59(e).

If the amendment sought did not involve allegations of jurisdiction, we would be
inclined to agree with Brady. District court opinions are not “mere first drafts, subject

to revision and reconsideration at a litigant’s pleasure.” Quaker Alloy Casting Co. v.

Gulfco Industries, Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988). Moreover, Rule 59(e) is

not to be used to enable a party to complete his case after the court has ruled against

him. Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir. 1995). The time for research

and development of the plaintiffs’ theories of recovery is before papers are filed, not
after the court has spent significant time and effort on the assumption that the parties
have put their best foot forward. However, pleadings can be amended to cure defective
allegations of jurisdiction at any time, even after the entry of judgment. 28 U.S.C.
§ 1653; Shaw v. Dow Brands, Inc., 994 F.2d 364, 368-69 (7th Cir. 1993). As it appears

from the allegations of the new complaint that the parties are in fact diverse, we vacate
our prior decision that no federal jurisdiction could be asserted over Villa’s state-law
claims.

The conclusion that the proposed complaint rests on a solid jurisdictional footing
is only the starting point of our inquiry in deciding whether leave to amend is warranted
in this case. Although leave to amend is “freely given when justice so requires,” justice

does not allow a plaintiff to file an amendment that would ultimately prove futile, even

-4-


Villa asserts in the amended complaint are qualitatively identical to those that would
be form the basis of a copyright infringement claim. Accordingly, § 301 bars his
attempt to style them as state-law causes of action.

Count II purports to bring a claim for invasion of privacy. Until 1999, the
common-law tort of invasion of privacy in Illinois took one of four specific forms: 1)
intrusion upon the seclusion of another; 2) public disclosure of private facts; 3) placing
another in a false light before the public; and 4) appropriation of another’s name or
likeness. Ainsworth v. Century Supply Co., 693 N.E.2d 510, 512 (Ill. App. Ct. 1998).
In June 1999, the Illinois legislature enacted the Right of Publicity Act. See 765 ILCS
1075/1 et seq. The act completely replaced the fourth incarnation, appropriation, with
a broader statutory right to control the use of one’s name or likeness. See 765 ILCS
1075/60. Villa therefore can no longer do what he attempts to do in Count II, namely
to assert a common-law cause of action for appropriation of his name.

Finally, Count III alleges a violation of Villa’s right of publicity. Villa does not
make reference to the Right of Publicity Act, but because the act supplies the only basis
remaining for such a claim in Illinois, we assume that he intended to invoke his
statutory rights. Although this count recites the correct statutory language of improper
use of a name without permission, and the mural does contain the letters UNONE, the
conduct in question is once again the inclusion of the artwork. The fact that the mural
incorporates the pseudonym is incidental; the essence of the behavior with which Villa

truly takes issue is the reproduction, distribution, and display of his artwork without his

-7-


Fed. R. Civ. Proc. 15(a) provides that leave to amend “shall be freely given when
justice so requires.” As with motions brought pursuant to Rule 59(e), the decision

whether to grant leave to amend a pleading rests in the broad discretion of the trial

court. See Jones v. Hamelman, 869 F.2d 1023, 1026 (7th Cir. 1989). Despite the
typically liberal application of leave under Rule 15(a), it is appropriate to deny leave
to amend where “there has been undue delay or there would be undue prejudice to the
opposing party, or when the amendment would be futile.” Wade v. Hopper, 993 F.2d
1246, 1249 (7th Cir. 1993). With these principles in mind, we turn to the motions
before us.
DISCUSSION

Amendments to pleadings are liberally granted consistent with Rule 15(a)
standards throughout the pendency ofa suit. See Rodriguez v. U.S., 286 F.3d 972, 980
(7th Cir. 2002). Once judgment has been entered, however, the complaint cannot be
amended unless the prior judgment is first vacated. Diersen v. Chicago Car Exchange,
110 F.3d 481, 488 (7th Cir. 1997). Villa therefore moves to vacate our May 1
judgment, claiming that the conclusion that we had no subject matter jurisdiction in this
case represented a manifest error of law that would warrant relief under Rule 59(e).

Villa does not dispute that the only federal claim contained in his prior complaint
was properly dismissed. Instead, he asserts for the first time that this court has diversity
jurisdiction over the instant action. In response, Brady argues that because Villa knew

or should have known that diversity was a possible source of jurisdiction at the time the

-3-


if jurisdiction would lie for a viable claim. See Foman v. Davis, 83 S.Ct. 227, 230
(1962); Wade, 993 F.2d at 1249. Brady, relying on this proposition, argues that the
state-law claims Villa advances in the proposed amended complaint are preempted by
17 U.S.C. § 301, thus rendering Villa’s attempt to amend pointless.

Section 301 expressly provides that any state-law rights in copyrightable works
that are “equivalent to any of the exclusive rights within the general scope of copyright
as specified by section 106 in works of authorship that are fixed in a tangible medium
of expression” are governed solely by the Copyright Act. A state-law right is
preempted under this section if 1) the work is fixed in a tangible form and copyrightable
under 17 U.S.C. §§ 102 and 103 and 2) the state-law right expressed is equivalent to
those enumerated in 17 U.S.C. § 106: reproduction, derivation, display, and distribution.
Both conditions must be satisfied before a claim is preempted under § 301. Baltimore
Orioles, Inc. v. Major League Baseball Players Assoc., 805 F.2d 663, 674 (7th Cir.
1986).

We assume, without deciding, that the work is copyrightable and was, at some
point before its appearance in the Guide, fixed in a tangible form and focus our attention
solely on the equivalence prong of the analysis. Preemption in this context does not
necessarily apply categorically to a given statute or common-law right. A proper
assessment of equivalence looks beyond the bare elements of the state-law cause of

action to the particulars of each case. Stephen & Hayes Construction, Inc. v.
Meadowbrook Homes, Inc., 988 F. Supp. 1194, 1198-99 (N.D. Ill. 1998). A claim

-5-


permission. There is nothing in the allegations of Count III that would not also
implicate the rights contained in 17 U.S.C. § 106. Accordingly, the state-law claims
within the amended complaint would be preempted under 17 U.S.C. § 301, and to allow
Villa to file his amended complaint would be an exercise in futility. Because none of
the claims Villa has advanced can survive, the action has no substance and is
consequently dismissed.
CONCLUSION
Based on the foregoing, Villa’s motion to vacate our prior judgment is

granted. His motion for leave to file an amended complaint is denied, and because

no viable claims exist, the action is dismissed.

CO Daf beeero a

Charles P. Kocoras
United States District Judge

Dated: June 26, 2002



Minute Order Form (06/97)

United States District Court, Northern District of Mlinois

Name of Assigned Jud; Sitting Judge if Oth
or Magistrate Judge Charles P. Kocoras than Assigned Judge
CASE NUMBER 02 € 570 DATE 6/26/2002
CASE Villa vs. Brady Publishing
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.}

MOTION:
DOCKET ENTRY:
() oO Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) o Answer brief to motion due___. Reply to answer briefdue___.
(4) o Ruling/Hearing on setfor at
(5) o Status hearing[held/continued to] [set for/re-set for]on___——ssetfor saat
(6) 0 Pretrial conference[held/continued to] [set for/re-set for]on__setfor__— at.
(7) Oo Trial[set for/re-set for]on__at
(8) a (Bench/Jury trial] [Hearing] held/continued to___at
(9) OQ This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) General Rule2i1 CIFRCP41(a)\(1) CFRCP41(a)(2).
(0) of [Other docket entry] Ruling held. ENTER MEMORANDUM OPINION: Villa’s motion (Doc

12-1) to vacate our prior judgment is granted. His motion (Doc 12-2) for leave to file an amended
complaint is denied, and because no viable claim exist, the action is dismissed.

(ee!

[For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.
* umber of notices

Notices mailed by judge's staff.

JUN 27 2092

date docketed

Me initials

Notified counsel by telephone.

Y | Docketing to mail notices.

vo } Mail AO 450 form.

Copy teRudge/magistrste judge

led noti
courtroom date mailed notice

scT deputy’s
initials

ey i efocict ih

htal Clerk’s Office trailing deputy initials



escapes the preemption bar only if the rights alleged to have been violated are
qualitatively different from those protected by copyright. Id. ( Uniform Deceptive
Trade Practices Act claim not preempted by § 301); Abn v. Midway Manufacturing Co.,
965 F. Supp. 1134, 1138 (N.D. Hil. 1997) (right of publicity claim preempted by § 301);
FASA Copp. v. Pla s Toys, Inc., 8369 F. Supp. 1334, 1361 (N.D. Ill. 1994) (unfair
competition claim preempted by § 301). The labels a plaintiff affixes to a defendant’s

activities are insignificant if the complaint does not assert rights that fall outside the

scope of those listed in § 106. See FASA., 869 F. Supp. at 1361.

Count I of the instant complaint is equivocally titled “deceptive business
practice.” The specific legal underpinning of this count is unclear; Villa specifically
mentions the Iilinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS
505/1 et seq., but characterizes Brady’s actions in terms more properly suited to an
action brought under the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS
510/1 etseg. Compl., {| 9, 10. Both statutes prohibit the use of deceptive business
practices, such as passing off another’s goods as one’s own and misrepresenting support
or endorsement, for commercial gain. Whether Villa seeks to state a claim under either
statute or both, and despite the fact that he characterizes Brady’s actions with terms
used within those statutes, the fact remains that the conduct he alleges as the basis of
liability is the same: inclusion of a copy of his artwork in the Guide. Proposed Am.
Compl., { 9. The allegations of Count I therefore rest solely on the unauthorized

reproduction, display, and distribution of Villa’s artistic expression. As such, the rights

-6-


aia)

UNITED STATES DISTRICT COURT. ~ ~
NORTHERN DISTRICT OF ILLINOIS yorsered

EASTERN DIVISION
JUN 27
HIRAM VILLA, ) .
Plaintiff, ) gate
)
Vs. ) 02 C570
)
BRADY PUBLISHING, )
)
Defendant. )
MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

This matter comes before the court on the motions of Plaintiff Hiram Villa
(“Villa”) to vacate our prior judgment and for leave to amend his previous complaint.
BACKGROUND

Villa is a graffiti artist who sometimes goes by the pseudonym “UNONE.” He
specializes in outdoor murals that incorporate highly stylized renditions of the letters
of his pseudonym. He claims that his particular style of artwork is distinctive and
recognizable (though the precise nature of its contents may not be) to anyone familiar
with his work.

Defendant Brady Publishing (“Brady”) published a book entitled “Tony Hawk’s
Pro Skater 2 Official Strategy Guide” (“the Guide”), which included a reproduction of
one of Villa’s UNONE murals without permission from Villa. Upon learning of the

mural’s appearance in the Guide, Villa filed suit, alleging copyright infringement and

[b


pendent state law claims of deceptive business practice, invasion of privacy, and
violation of the right to publicity. Because Villa has yet to register his copyright with
the Copyright Office, the copyright claim was dismissed, and we declined to exercise
supplemental jurisdiction over the remaining state-law claims. Villa now moves to
vacate the prior judgment and seeks leave to amend the complaint to allege diversity
jurisdiction.
LEGAL STANDARD

Fed. R. Civ. Proc. 59(e) permits parties to file, within ten days of the entry of

judgment, a motion to alter or amend the judgment. This procedural mechanism is often

invoked to alert the court to matters such as newly discovered evidence or manifest

errors of law or fact. See In re Prince, 85 F.3d 314, 324 (7th Cir. 1996); Russell v.
Delco Remy Div. of General Motors Corp.., 51 F.3d 746, 749 (7th Cir. 1995). However,
parties cannot use the rule to undo their own procedural failures or to present new
evidence or arguments “that could and should have been presented to the district court
prior to judgment.” Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996). To be
successful, a Rule 59(e) motion “must clearly establish either a manifest error of law or
fact or must present newly discovered evidence.” LB Credit Corp., 49 F.3d at 1267
(quoting FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)). The decision to grant
relief under Rule 59(e) is left to the discretion of the district court. Prince, 85 F.3d at

324.