Page:Murray v. Gelderman (566 F.2d 1307).pdf/2

 Thomas S. Keaty, C. Emmett Pugh (on rehearing) New Orleans, La., for plaintiff-appellant.

Michael F. Little, New Orleans, La., for defendants-appellees.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC.

Before THORNBERRY, RONEY and HILL, Circuit Judges.

THORNBERRY, Circuit Judge:

The petition for rehearing is GRANTED, this panel’s opinion of November 23, 1977, 5 Cir., 563 F.2d 773, is withdrawn, and the following is substituted in lieu thereof.

Appellant Murray brought this action for copyright infringement pursuant to 28 U.S.C. § 1338 against New Orleans a La Carte, Ltd., and its shareholders. The district court dismissed the complaint for failure to state a cause of action. Rule 12(b) Fed.R.Civ.P. For the reasons stated below, we affirm.

Because the district court considered matters outside the pleadings in ruling on defendants’ motion to dismiss, we must treat the motion as one for summary judgment. Rule 12(b), Fed.R.Civ.P.; Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972); Arrington v.