v29 #3 Cases of Note — When Copyright Act Doesn’t Preempt

by | Jun 23, 2017 | 0 comments

PDF copyColumn Editor:  Bruce Strauch  (Retired, The Citadel) 

Loretta Lynn v. Sure-Fire Music Company.  United States Court of Appeals for the Sixth Circuit.  2007 U.S. App. LEXIS 14050.

“My daddy worked all night in the Van Lear coal mines

“All day long in the field a hoin’ corn”

Ah yes, Loretta Lynn, coal miner’s daughter from Butcher Hollow, Kentucky.  And Daddy indeed died of black lung.

And she married at 15, launched her career in 1953 with a $17 Harmony guitar, became a Nashville fixture with 16 number-one hits.

In 1961, Lynn contracted with Sure-Fire Music Company, giving them world-wide copyright interests in her songs in exchange for royalties.  In 1966, they re-executed with one big difference.  If there was a change of ownership of Sure-Fire, the contract “shall be null and void.”

i.e., better the bandits you know …

By 2003, the original Sure-Fire owner brothers were out and other family members in.  Lynn filed in state court for a whole bunch of stuff.

To wit: declaratory judgment that contract void;  recover master recordings;  breach of contract for failing to renew copyrights and failing to collect foreign royalties and other injuries, all of which were contract or tort claims.

The state court said it had no subject matter jurisdiction as the Copyright Act preempted the claims.  She had to go to federal court.

So Lynn refiled in federal court asserting the same claims.

Of course the opinion says “Lynn.”  It was her lawyer.  She was busy writing “Don’t Come Home A’Drinkin’.”  And I’m sure her lawyer had a delightful time explaining what happened next because clients are always so reasonable.

Sure-Fire moved to dismiss on the grounds that Lynn was asserting state law claims and she should be arguing copyright.  And the federal district court dismissed saying Copyright did not preempt and they had no subject matter jurisdiction.

Sure-Fire then appealed, insisting that Lynn’s claims lay in copyright.  And we go to the Sixth Circuit which hears appeals from Kentucky, Michigan, Ohio and Tennessee.  It sits in Cincinnati in solemn, black-robed majesty at the Potter Stewart U.S. Courthouse.

A federal court has jurisdiction if the complaint invokes federal law.  Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987).


Lynn’s complaint had no federal law.  It was all contract law.  But is the complaint, as Sure-Fire insisted, preempted by Copyright Law?

And what was Sure-Fire’s strategy?  Were they so insistent on copyright because they hadn’t violated copyright?

As you’re about to see, Lynn’s lawyer did the thing right from the get-go and has gotten totally jerked around and stalled.

Preemption can only happen if (1) the work is within the scope of the “subject matter of copyright” which the songs were;  and (2) her state law rights are equivalent to any exclusive rights within copyright per 17 U.S.C. § 106. Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001).

Rights protected under Copyright are to: (1) reproduce the work;  (2) prepare derivative works;  (3) distribute copies;  (4) in the case of music, to perform it;  (5) in the case of sound recordings, to perform by digital audio transmission.

Lynn wanted her recordings back and her foreign royalties paid over.  She had to prove the formation and breach of a contract.

So the Sixth Circuit affirmed the district court’s dismissal.

But back in state court, she would have to appeal their dismissal.  Ye-gads.

Perhaps inspiring her to write “Full Circle.”  And for her attorney, “All I Want From You Is Away.”  


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