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Valparaiso Univ. Law School

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Thursday, May 26, 2005

Cases: No copyright preemption in contract claim

An author’s breach of contract claims against a publisher for violation of a publication agreement are not preempted by federal copyright law, according to a new decision by the Massachusetts Court of Appeals.

The case involved author Misha Levy Defonseca, a Holocaust survivor whose harrowing story of survival as a 7-year-old in hiding became a best-seller in several countries, though not in the U.S.  The story of the publishing fiasco she entered when she signed a deal with a shady fly-by-night publisher, detailed in Lee v. Mt. Ivy Press, L.P., is also harrowing in its way.  Ultimately, she and her co-author Vera Lee won verdicts of $22.5 million and $9 million respectively against the publisher.  On appeal, the publisher argued that there was no jurisdiction in the Massachusetts courts because the basic claim, that the publisher involved in various machinations to steal all the profits from the book, was rooted in copyright.

A contract claim is preempted, said the court, if it’s essentially the same as a copyright claim—as when the publisher exercises a right reserved to the author.  But where there are other provisions that are breached, the claim isn’t preempted.  Here, in addition to publishing the work in some countries without authority, the publisher engaged in other breaches, such as failing to pay royalties, do sufficient publicity, and give the co-author proper credit.  The contract claim was therefore properly before the court and verdict was affirmed.

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