CLE November 28: Removal of Copyright Cases From State Court and Preemption of State Law By the Copyright Act

Tomorrow, November 28, West LegalEdcenter is hosting a live audio CLE titled Copyright Litigation:  Removal and Preemption Below is the description from the West LegalEdcenter website, more information and signup here. Description: Ray Dowd, author of West’s acclaimed Copyright Litigation Handbook and a partner in Dunnington Bartholow & Miller LLP in New York City will take us through the surprisingly complex process of deciding whether an action belongs in federal or state court and whether claims are properly pleaded under federal or state law. The situation: client storms in wanting a lawsuit filed tomorrow over a copyright dispute. What court should it be filed in? Do the claims “arise under” the Copyright Act or are they really state law claims? If you are not sure, should your complaint plead lots of “kitchen sink” state law claims? Another situation: your client has been sued in state court. You think it’s a federal case. How do you kick it out (remove) it to federal court? And what are the downsides if you are wrong and the case is remanded to state court? Conserving and focusing litigation resources at the outset of a case may save a client thousands of hours of litigation anguish. Dowd walks practitioner through some of the tactical and strategic choices that a litigator faces in understanding the interplay between the federal and state fora and legal regimes. Dowd’s entertaining presentation will clue you in to some of the tricks and surprises that may cut off the rights of the unprepared. The Copyright Act and the Federal Rules of Civil Procedure interact in ways that may help your client to turn early skirmishes into decisive victories. Dowd’s Copyright Litigation Handbook is the first publication aimed at the practitioner who must make quick practical decisions in the heat of battle and evaluate the immediate procedural consequences. Copyright Litigation Handbook devotes attention to procedural case law that rarely reaches the appellate level, but is of critical importance to the life of everyday practitioners. The New York Law Journal called Dowd’s Copyright Litigation Handbook “an indispensable guide and supplement to the ins and outs of copyright litigation…”. Join us for a lively session on a hot topic. For more information on Copyright Litigation Handbook 2012-2013 ed, please visit the Thomson Reuters Westlaw Store here. Practice Areas: Copyright Law, Intellectual Property Law Online Media Type: Audio Production Date: 11/28/2012 12:00 PM EST Level: Basic Category: Standard Duration: 1 Hours, 0 Minutes Online Format: Live

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2d Cir: Tortious Interference and Conversion Claims Preempted By Copyright Act

Miller v. Holtzbrinck Publishers, L.L.C., 2010 WL 1932322, 1 -2 (2d Cir. May 14, 2010):

First, we consider Miller's claims against the third-party defendants. The Copyright Act preempts a state law claim when: “(1) the particular work to which the claim is being applied falls within the type of works protected by the Copyright Act under 17 U.S.C. §§ 102 and 103, and (2) the claim seeks to vindicate legal or equitable rights that are equivalent to one of the bundle of exclusive rights already protected by copyright law under 17 U.S.C. § 106.” Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 305 (2d Cir.2004). State law claims may proceed only if those claims contain “extra elements that make it qualitatively different from a copyright infringement claim.” Id. In applying this standard, “we take a restrictive view of what extra elements transform an otherwise equivalent [state law] claim into one that is qualitatively different from a copyright infringement claim.” Id . at 306; accord Nat'l Basketball Ass'n v. Motorola, Inc., 105 F.3d 841, 851 (2d Cir.1997). More specifically, “[i]f unauthorized publication is the gravamen of [plaintiff's] claim, then it is clear that the right [she] seek[s] to protect is coextensive with an exclusive right already safeguarded by the [Copyright] Act” and thus that state law claim is preempted. Harper & Row Publishers, Inc. v. Nation Enterprises, 723 F.2d 195, 201 (2d Cir.1983), rev'd on other grounds, 471 U.S. 359 (1985) (holding that plaintiff's claims of tortious interference and conversion were preempted by the Copyright Act).


 Applying the above framework to this case, we conclude that the Copyright Act preempts Miller's claims of tortious interference and conversion. Here, as in Harper & Row, “unauthorized publication is the gravamen of [her] claim.” Id. As the District Court stated, “[h]er case rests on her theory that [the third-party defendants] tortiously interfered with her business relations and converted her literary work by publishing the book without authorization [by her] or credit [to her].” Miller v. Holtzbrinck Publishers, L.L.C., 2008 U.S. Dist. LEXIS 92038 at *8 (S.D.N.Y. Nov. 12, 2008). For this reason, we conclude that Miller's claims against the third-party defendants are preempted by the Copyright Act.