United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED August 12, 2021 No. 20-20523 Lyle W. Cayce Clerk

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. Case: 20-20523 Document: 00515975891 Page: 2 Date Filed: 08/12/2021

No. 20-20523

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