United States Court of Appeals

for the Fifth Circuit

No. 20-20523

Di Angelo Publications, Incorporated, 

Plaintiff—Appellant,

versus

Jentry Kelley, 

Defendant—Appellee.

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:20-CV-115

Before Higginbotham, Southwick, and Engelhardt, Circuit 

Judges.

Patrick E. Higginbotham, Circuit Judge:

This appeal brings a variation on the often-thorny question of whether 

a claim involving a copyright arises under federal law. If Di Angelo 

Publications’ claim to a copyright requires a construction of copyright law,

there is exclusive federal jurisdiction; but if its claim calls only upon contract 

law, jurisdiction lies with the Texas courts. The district court determined 

that only contract law applied and dismissed Di Angelo’s claim for want of 

federal jurisdiction. Finding federal jurisdiction, we reverse and remand.

United States Court of Appeals

Fifth Circuit

FILED

August 12, 2021

Lyle W. Cayce

Clerk

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I.

The dispute centers on a book titled “Hooker to Looker; a makeup 

guide for the not so easily offended” (the “Book”). Jentry Kelley, a makeup 

artist with her own cosmetics business, first approached Di Angelo’s 

principal, Sequoia Schmidt, with the idea of publishing the Book to promote

Kelley’s business. In June 2015, the parties signed a publishing contract (the 

“Contract”) in which Di Angelo agreed to publish and distribute Kelley’s 

then-unwritten Book, with Kelly receiving 50 percent of the net royalties. 

Kelley provided Di Angelo with an initial, three-page manuscript, detailing

her background in cosmetics and outlining the Book’s topics. According to 

Di Angelo, it then wrote the Book for Kelley while “communicating and/or 

collaborating with Kelley” during the drafting process. This process 

allegedly included Di Angelo’s creation, selection, and arrangement of the 

images appearing in the Book. Nonetheless, the Book Di Angelo distributed 

lists only Jentry Kelley as the holder of the copyright.

Di Angelo published the Book and sold the initial 1,000-copy print 

run. Kelley then asked Di Angelo to prepare an updated or revised version of 

the Book for sale. Di Angelo alleges that it had prepared the updated work for 

print when it discovered that Kelley was attempting to work directly with Di 

Angelo’s printer, in violation of the Contract, to reduce the costs she would 

incur selling the revised edition. 

Shortly after unsuccessful overtures to the printer, in November 2018, 

Kelley filed a complaint in Harris County, Texas, claiming that Di Angelo 

intentionally misled her regarding the costs of publishing her Book and 

overcharged her for publishing services. Relevant here, Kelley alleged that 

she “is the sole owner of all copyrights, trademark rights, trade secret rights, 

concepts and other intellectual property . . . in the Book.” She further alleged 

that Di Angelo “did not develop any intellectual property or other rights in 

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connection with the Book” and that Di Angelo’s contrary assertions were 

false. At the summary judgment stage, Kelley asked the Harris County court 

to rescind her Contract with Di Angelo as a penalty for the alleged 

misrepresentations. Di Angelo counterclaimed for breach of contract, sworn 

account, quantum meruit, and a judgment declaring “that Kelley failed to 

substantially perform under the Contract.” Among other things, Di Angelo 

alleged that “Kelley has prevented Di Angelo from selling the 2nd edition and 

making a profit therefrom.” The Harris County action is still pending.

Di Angelo filed this case in the Southern District of Texas in January 

2020. According to Kelley, the filing came on the heels of a November 2019 

ruling in Harris County that granted summary judgment to Kelley on certain 

Di Angelo counterclaims including the declaratory judgment claim. 

Di Angelo’s federal complaint asserts a single claim for relief, titled 

“Declaratory Judgment Of Authorship and Copyright Ownership of the 

Book and Its Update/Sequel.” Specifically, Di Angelo seeks a declaration 

that it “owns copyrights in the [B]ook and its update and those copyrights 

include among other rights, the right of Di Angelo Publications to control the 

printing and distribution of the [B]ook [,] its update,” and any derivative 

works. 

Di Angelo alleges that it “acquired copyrights in the [B]ook” and its 

update by “writing, editing, planning and taking all photographs and making 

all illustrations, and planning, designing, and arranging the layout of the 

[B]ook.” Elsewhere in its complaint, Di Angelo alleges that it “wrote the 

[B]ook, planned and illustrated the [B]ook, prepared the layout for the 

[B]ook,” as well as “planned, took or made, and formatted all of the 

photographs and illustrations in the [B]ook.” Apart from these allegations, 

much of Di Angelo’s complaint describes the contract dispute Kelley 

initiated in state court. Di Angelo contends that an actual controversy has 

arisen between the parties because Kelley has asserted exclusive ownership 

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of all rights in the Book and its update and seeks rescission of the Contract, 

which if granted, would give Kelley sole control over the Book’s sale and 

distribution absent a declaration of Di Angelo’s copyrights.

Kelley moved to dismiss Di Angelo’s declaratory relief claim under 

Rules 12(b)(1) and 12(b)(6). Kelley argued that the claim did not give rise to 

federal jurisdiction because it was premised solely on her alleged breach of 

the Contract, a controversy governed by Texas law. Kelley further argued the 

federal filing as an end-run around rulings against Di Angelo in the Harris 

County case. Kelley went on to argue that Di Angelo’s claim would fail on its 

merits because the Contract conclusively established that Kelley alone 

authored the Book. Di Angelo responded that its claim was distinct from any 

claims or counterclaims asserted in state court because it was premised on a 

dispute over who wrote the Book, not on the terms of the Contract. In Di 

Angelo’s view, resolution of this authorship dispute requires the district 

court to interpret federal copyright law, including the definitional and 

ownership provisions in 17 U.S.C. §§ 101 & 201, which the state court lacks

jurisdiction to address.

The district court agreed with Kelley on the jurisdictional question 

and granted the motion to dismiss.1Although the district court acknowledged 

that certain ownership claims require interpretation of the Copyright Act,2 it 

determined that here “the disputed ownership and authorship of the Book 

hinges on the terms of the Contract.”3 The district court explained that while 

the “Contract does not explicitly provide for ownership of copyrights,” it 

1 Di Angelo Publ’ns, Inc. v. Kelley, No. CV H-20-115, 2020 WL 5884659, at *3 (S.D. 

Tex. Aug. 28, 2020).

2 Id. at *2 (citing Goodman v. Lee, 815 F.2d 1030, 1031 (5th Cir. 1987)).

3 Id. at *2.

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“refers to Kelley as the author of the Book.”4 The district court further noted 

that Di Angelo’s complaint was heavy on contract-related allegations 

including that “Kelley acted ‘contrary to the terms of the contract’” and that 

“the Contract . . . provides Kelley a buyout option of Di Angelo’s rights.”5

As Di Angelo’s claim sounded in contract, the dispute did not require 

construction of the Copyright Act and, thus, did not arise under federal law.6

The district court declined to reach Kelley’s arguments that Di Angelo failed 

to state a claim under Rule 12(b)(6) or that the court should abstain from 

hearing the dispute while the Harris County case was pending.7 Di Angelo 

appealed.

II.

We review a district court’s decision to dismiss under Rule 12(b)(1) 

de novo.8 Di Angelo, as the party asserting federal jurisdiction, has the 

burden of “alleg[ing] a plausible set of facts establishing jurisdiction.”9

Where, as here, “the district court rules on jurisdiction without resolving 

factual disputes . . . we consider the allegations in the plaintiff’s complaint as 

true and review whether the district court’s application of the law is 

correct.”10 Generally, we affirm a dismissal under 12(b)(1) only if “‘it 

4 Id.

5 Id.

6 Id.

7 Id. at n.10.

8 In re S. Recycling, L.L.C., 982 F.3d 374, 379 (5th Cir. 2020).

9 Laufer v. Mann Hosp., L.L.C., 996 F.3d 269, 271 (5th Cir. 2021).

10 Id. at 271-72 (internal quotations omitted).

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appears certain that the plaintiff cannot prove any set of facts in support of 

his claim that would entitle plaintiff to relief.’”11

The parties agree that there is federal jurisdiction over Di Angelo’s 

declaratory judgment claim only if it raises an issue arising under copyright 

law.12 A claim arises under copyright law in three circumstances: “‘[1] if the 

complaint is for a remedy expressly granted by the Act . . . or [2] asserts a 

claim requiring constructi[on] of the Act, . . . or, [3] at the very least and 

perhaps more doubtfully, presents a case where a distinctive policy of the Act 

requires that federal principles control the disposition of the claim.’”13 Only 

the second of these—construction of the Copyright Act—is implicated 

here.14

11 See Williams On Behalf of J.E. v. Reeves, 954 F.3d 729, 734 (5th Cir. 2020)

(quoting Gilbert v. Donahoe, 751 F.3d 303, 307 (5th Cir. 2014)).

12 Additionally, the Declaratory Judgment Act requires an actual controversy 

before a plaintiff like Di Angelo can seek declaratory relief. See 28 U.S.C. § 2201(a). In the 

intellectual property context, this requires a showing that “the declaratory plaintiff has a 

real and reasonable apprehension of litigation and . . . the declaratory plaintiff has engaged 

in a course of conduct that brings it into adversarial conflict with the declaratory 

defendant.” Tex. v. W. Pub. Co., 882 F.2d 171, 175 (5th Cir. 1989). Kelley does not dispute 

that an actual controversy exists between the parties, and the district court seems to have 

assumed that one existed. Regardless, Di Angelo is likely correct that the requisite 

controversy exists: Kelley alleged in Harris County that she “is the sole owner of all 

copyrights . . . in the Book,” and Di Angelo has alleged that it “is preparing to publish the 

material that is subject to [Kelley’s] copyright.” W. Pub. Co., 882 F.2d at 176.

13 Goodman, 815 F.2d at 1031 (quoting T. B. Harms Co. v. Eliscu, 339 F.2d 823, 826 

(2d Cir. 1964)).

14 See Di Angelo Publ’ns, 2020 WL 5884659, at *2 (“Di Angelo does not assert its 

claim involves copyright infringement or statutory royalties or that this is a case where a 

distinctive policy of the Act requires that federal principles control. [] Therefore, the Court 

turns to whether Di Angelo’s complaint asserts a claim that requires construction of the 

Copyright Act.”) (internal quotations omitted).

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Di Angelo argues that resolving the dispute over who owns the 

copyrights in the Book and its update requires reference to federal copyright 

law. Claims of ownership in a copyright do not invariably arise under 

copyright law. It is well established that where a party holds a copyright by 

virtue of an assignment or similar contractual arrangement, state law is 

determinative of ownership.15 But claims of copyright ownership grounded 

in authorship touch on federal concerns. Section 201(a) of the Copyright Act 

provides that “[c]opyright in a work protected under this title vests initially 

in the author or authors of the work.”16 “An author gains ‘exclusive rights’

in her work immediately upon the work’s creation, including rights of 

reproduction, distribution, and display,” and thus registration is not a 

prerequisite to an author holding a copyright.

17

As early as 1987, we held in Goodman v. Lee “that exclusive federal 

district court jurisdiction exists in an action for a declaratory judgment to 

establish joint authorship of a copyrighted work” because such a claim 

“clearly involves the application and interpretation of the copyright 

ownership provisions.”18 Since Goodman, our sister courts of appeals have 

15 See T.B. Harms, 339 F.2d at 828 (“[T]he federal grant of a patent or 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.”).

16 17 U.S.C. § 201.

17 Fourth Est. Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 887 (2019); 

see also Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 165 (2010) (“[N]either § 1331, which 

confers subject-matter jurisdiction over questions of federal law, nor § 1338(a), which is 

specific to copyright claims, conditions its jurisdictional grant on whether copyright

holders have registered their works before suing for infringement.”).

18 Goodman, 815 F.2d at 1031-32 (emphasis added). Contrary to Kelley’s 

suggestion, the Copyright Act’s lack of a definition of authorship does not defeat the 

conclusion that authorship claims require construction of the Act. As our sister court 

noted, such a position is “without merit” because it rests on “the mistaken impression that 

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reached a consensus: competing authorship claims require “the application 

of the Copyright Act” and thus state a federal claim.19 Indeed, this appears 

to be the unanimous view among the courts of appeal that have squarely 

addressed the question.20 Courts have reached this conclusion in a variety of 

circumstances, including cases involving claims for declaratory judgment21

and cases where at least some portion of the parties’ business relationship 

was covered by an adjacent contract.22 Importantly, neither the presence of a 

related contract nor contract claims is dispositive of whether a valid copyright 

claim has been pled. As the Second Circuit explained, the T.B. Harms test—

the basis for each aforementioned decision—“obviated the need for courts 

courts ‘construe’ only those terms already defined in a statute.” Merchant v. Levy, 92 F.3d 

51, 55-56 (2d Cir. 1996).

19 See, e.g., Severe Recs., LLC v. Rich, 658 F.3d 571, 582 (6th Cir. 2011) (“[W]e now 

join our sister circuits and adopt the “prevailing view that disputed claims about whether 

there is co-authorship require[s] application of the Copyright Act[,]” which is a dispute 

properly adjudicated in federal court.”) (internal citation omitted); Cambridge Literary 

Props., Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co. KG., 510 F.3d 77, 86 (1st Cir. 2007) 

(“All of the federal circuit courts of appeal that have addressed the issue, including this 

one, agree that a determination of copyright ownership based on a disputed allegation of 

co-authorship presents a federal question that arises under, and must be determined 

according to, the Copyright Act.”) (collecting cases); Gaiman v. McFarlane, 360 F.3d 644, 

652–53 (7th Cir. 2004); Merchant, 92 F.3d at 55 (citing 3 Melville B. Nimmer & 

David Nimmer, Nimmer on Copyright, § 12.01[A] at 12–13 (1994)) (“better 

view” that “in an action for a declaratory judgment to establish the plaintiff as the 

defendant’s co-author and for an accounting based thereon, . . . federal jurisdiction is 

exclusively [sic]”); Sullivan v. Naturalis, Inc., 5 F.3d 1410, 1414 (11th Cir. 1993).

20 Severe Recs., LLC, 658 F.3d at 582 (quoting Cambridge Literary Props., 510 F.3d 

at 86) (“All of the federal circuit courts of appeal that have addressed the issue . . . agree 

that a determination of copyright ownership based on a disputed allegation of co-authorship 

presents a federal question that arises under, and must be determined according to, the 

Copyright Act.”).

21 See, e.g., Severe Recs., LLC, 658 F.3d at 582; Merchant, 92 F.3d at 55.

22 See, e.g., Sullivan, 5 F.3d at 1414 (reversing district court’s determination that 

plaintiffs’ claim arose only under contract law).

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to determine at the outset of litigation whether copyright claims were 

incidental to contract claims.”23 Instead, what counts under T.B. Harms is 

“what is alleged on the face of the complaint.”24

Although Di Angelo muddles its complaint with contract allegations 

aplenty, it also alleges that it “acquired copyrights in the [B]ook” by 

“writing, editing, planning and taking all photographs and making all 

illustrations, and planning, designing, and arranging the layout of the 

[B]ook.” Di Angelo alleges that it made these same contributions both to the 

original Book and its update. Although the complaint uses neither the term 

“joint work” nor “co-author,” it is nigh impossible to read Di Angelo’s 

allegations that it “wrote the [B]ook . . . and illustrated the [B]ook” while 

“communicating and/or collaborating with Kelley” without concluding that 

Di Angelo is alleging, at minimum, co-authorship of the Book.25

Consequently, Di Angelo’s complaint appears to state a cognizable copyright 

claim.

Kelley contends that this is merely an appearance and that the 

question of authorship sounds in contract, not federal law. It bears repeating 

that the Contract never expressly vests a copyright or any intellectual 

23 Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 349 (2d Cir. 2000).

24 Id.

25 In fact, Di Angelo seems to be pursuing the even bolder argument that it alone 

was the author, so it alone owns the copyrights in the Book. This despite Di Angelo’s own 

allegations, acknowledging that Kelley made some contributions to the Book. Evidence also 

indicates that the copyright for the Book is formally registered to Kelley. These issues 

pertain more to the merits than to the limited jurisdictional question on appeal, but it bears 

noting that even a copyright registered to Kelley would not preclude Di Angelo from 

claiming to be a co-author: “A copyright registration, standing alone, does not serve as 

repudiation of joint authorship because coauthors are not expected to investigate the 

copyright register for competing registrations.” 18 Am. Jur. 2d Copyright and Literary 

Property § 69.

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property right in either party. But, as Kelley points out, the Contract 

addresses her as the “author.” From this, she concludes that the Contract 

plainly does not contemplate the ghostwriting arrangement alleged by 

Di Angelo. Indeed, the district court listed the Contract’s references to 

Kelley as the “author” among its reasons for concluding that Di Angelo had 

pled only a contractual claim.26 At this stage, we are not persuaded that the 

term “author” carries the determinative significance Kelley assigns it.

Put simply, neither the Contract’s use of “author” nor its more 

general terms preclude Di Angelo from adducing facts that would make it a 

statutory author for purposes of 17 U.S.C. § 201(a). The Contract does not 

define author, and the word’s common meaning can apply to multiple parties 

who collaboratively engage in producing one creative work, a possibility 

expressly contemplated by copyright law.27 And contrary to Kelley’s 

suggestion, the terms of the Contract lend some support to the notion that 

the Book would be produced collaboratively. 

In addition to traditional editing, proofing, and distribution services, 

the Contract specifies that Kelley paid Di Angelo for services described as 

“manuscript development” and “elaboration on [the] base manuscript.” 

The Book is no tome, but at 124 pages, it grew considerably from the threepage manuscript Kelley originally submitted. On this limited record, it is 

plausible to infer that the manuscript’s transformation into a book of sorts is 

attributable, at least partially, to the “development” and “elaboration” 

services expressly provided for in the Contract. In this sense, the Contract 

26 Di Angelo Publ’ns, 2020 WL 5884659, at *2.

27 See 17 U.S.C. § 101 (defining “joint work” as “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”).

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itself permits the inference that the parties’ envisioned Di Angelo making 

substantive contributions to the work. 

But the Contract may not even be the final word on the matter. We 

note that the document lacks a merger or integration clause, thus allowing for 

the possibility that the parties’ agreement extended beyond the terms which 

they reduced to writing.28 Accordingly, the Contract alone is not dispositive 

of the jurisdictional question.

In a similar vein, the rights Di Angelo seeks to vindicate through a 

declaratory judgment invite further comment. Di Angelo seeks a declaration 

of its copyright so that it may control the “use,” “printing and distribution 

of the [B]ook and its update.” Although these are rights the holder of a 

copyright would enjoy,29 they also seem to be rights that Di Angelo enjoys

under the Contract, the terms of which dictate that Kelley shall not “proceed 

with business ventures that directly or indirectly affect the business services 

Di Angelo Publications is providing.” If Di Angelo could vindicate the same 

rights without reference to copyright law, then one might question whether 

the claim truly arises under copyright law or whether the federal proceeding 

ought to be stayed in favor of the earlier-filed state lawsuit. But viewing the 

allegations in the light most favorable to Di Angelo, we conclude that at least 

some of the rights referenced in Di Angelo’s complaint are not co-extensive 

with its rights under the Contract. Specifically, rights in the Book’s update 

are not expressly addressed by the Contract’s terms. 

28 See, e.g., Digby v. Texas Bank, 943 S.W.2d 914, 929 (Tex. App. El Paso 1997, writ 

denied) (holding that when parties neglect to include a merger clause, Texas courts are not 

precluded from considering extrinsic evidence).

29 See 17 U.S.C. § 106.

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Although that document contains a passing reference to a second print 

run of the original Book, none of the agreement’s terms deal with the 

possibility of an update or revision to the Book, such as the one Di Angelo 

allegedly prepared before the parties’ breakdown in relations. Thus, a 

declaration of Di Angelo’s copyright in the updated work could permit it to 

exercise rights with respect to that work that it would not enjoy under the 

Contract. For instance, a declaration could allow Di Angelo to profit from the 

Book’s update, which according to its state court complaint, Kelley currently

prevents it from doing. 

III.

The district court confined its dismissal order to the jurisdictional 

question, and the parties generally limited their briefing and oral arguments 

to this issue, so we limit our holding accordingly. At the same time as we hold 

that Di Angelo’s claim necessarily implicates 17 U.S.C. § 201, it bears 

mentioning that subsection (a)’s definition of “Initial ownership” is not the 

only portion of that statute with apparent relevance to the facts at hand. 

Subsection (b), which defines “Works made for hire,” may address the 

merits disputes to which the parties allude. We leave to the parties and the 

district court the applicability of this section.

We VACATE the district court’s order dismissing Di Angelo’s 

declaratory judgment claim and REMAND the case for further proceedings 

consistent with this opinion. 

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