Complete Preemption and Copyright: Toward a Successive Analysis

Abstract

District courts in most circuits face a problem: does the so-called “complete preemption” doctrine apply to the Copyright Act — that is, does the complete preemption doctrine allow a defendant to remove a case that states only state law claims from state court to federal court if the Copyright Act seems to cover the subject matter of the claims? This Article proposes that courts and practitioners need to start arguing the merits of both the complete preemption doctrine and the tests that apply to the doctrine — the congressional intent test, the exclusive federal cause of action test, and the extra element test.Commentators and courts disagree on the merits of using the complete preemption doctrine in context of the Copyright Act. Plaintiffs prefer state courts, and defendants prefer federal courts. Therefore, defendants often remove cases to federal courts, and plaintiffs move to remand cases to state courts. In cases that involve copyrights, sometimes plaintiffs file cases in state courts and omit claims of copyright infringement to avoid federal court jurisdiction, while defendants increasingly assert that causes of action of breach of contract claims and other claims that involve copyrights relate to the Copyright Act. Thus, the complete preemption doctrine allows the defendant to remove the case to federal court. The competing views of commentators and courts inform plaintiffs and defendants sufficiently to allow them to argue the merits of each step of the analysis.