Partner Lee S. Brenner co-authored the article, “Interference With Contract Claims Concerning Copyrightable Subject Matter Are Likely Preempted In The Ninth Circuit” published in the Los Angeles County Bar Association Entertainment Law and Intellectual Property Section’s, the ELIPS Law Lab. The article discusses the nationwide trend holding lawsuits for interference with contract to be preempted by the Copyright Act as long as the matter is copyrightable and the “wrong” alleged is equivalent to violations that the Copyright Act is designed to remedy.
While the five elements needed to file an interference claim clearly differ from those of copyright infringement, numerous courts have found that those elements do not “establish qualitatively different conduct on the part of the infringing party, nor a fundamental non-equivalence between the state and federal rights implicated.” The fact that a claim for interference with contract includes additional elements does not mean that a claim will avoid preemption. Instead, the existence of additional prerequisites to maintain an interference claim simply means that the state-created right is slimmer than its copyright counterpart.
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