Kabehie

This case involves causes of action for breach of contract, fraud and interference with economic relations, arising out of contracts for the purchase of exclusive rights to music compositions. The trial court granted defendants’ motion for judgment on the pleadings on the ground these state law causes of action were preempted by federal copyright law. We conclude that such state law causes of action are preempted by federal copyright law only to the extent they assert rights equivalent to the exclusive rights protected by federal copyright law. State law causes of action are not preempted if they require elements that are qualitatively different from the elements of a federal copyright infringement action. This is the “extra element” test for federal copyright preemption. In the context of a breach of contract cause of action, the extra element is not supplied by the mere breach of a promise giving rise to rights equivalent to copyright *518 protection; the extra element must be a contractual promise creating a right not existing under federal copyright law. We conclude some of the causes of action are preempted and others are not. We reverse with directions to grant the…

I concur.

A contract claim is qualitatively different from a copyright infringement claim and should not be preempted unless the contract claim is based upon the enforcement or determination of federal copyright law. Thus, I do not agree with the majority’s “fact-specific analysis” to determine the existence of preemption.

I concur in the majority’s determination in this case as to the noncontractrelated claims. I also concur in the majority’s conclusion with respect to the contract and contract-related claims because the pleadings of those causes of action are deficient. The allegations in the complaint show that in some instances plaintiffs did not have a contractual relationship with defendants in connection with the musical properties. It appears that in some instances the transferors just transferred whatever rights they had; plaintiffs did not plead explicitly that they had all rights in the properties. Plaintiffs did not plead that there was any promise or agreement, express or implied, that defendants would not use the properties. It is unclear if the copyrights were transferred or whether plaintiffs owned them. It is also unclear if the alleged breaches of contracts are…

GRIGNON, Acting P.J.

This case involves causes of action for breach of contract, fraud and interference with economic relations, arising out of contracts for the purchase of exclusive rights to music compositions. The trial court granted defendants' motion for judgment on the pleadings on the ground these state law causes of action were preempted by federal copyright law. We conclude that such state law causes of action are preempted by federal copyright law only to the extent they assert rights equivalent to the exclusive rights protected by federal copyright law. State law causes of action are not preempted if they require elements that are qualitatively different from the elements of a federal copyright infringement action. This is the "extra element" test for federal copyright preemption. In the context of a breach of contract cause of action, the extra element is not supplied by the mere breach of a promise giving rise to rights equivalent to copyright protection; the extra element must be a contractual promise creating a right not existing under federal copyright law. We conclude some of the causes of action are preempted and others are not. We reverse with directions to…