Re: Preemption

     I have a hypo to throw in to the preemption argument.

     Let's say two authors have an argument over rights in a particular work. P brings (and for the sake of the argument let's say P's counsel is able to paint the facts enough) as a contract claim in state court as licensor vs. licensee. Even though D's anticipated affirmative defense is his rights as an author in the work, since the court cannot consider affirmative defenses in determining whether or not a case is preempted, is D stuck in state court? Any claim a co-author can bring against another co-author, where the latter initially attempted to assert his rights as an author against the former? Is D's best plan to bring counteclaims for dec. relief in Federal Court and seek supplemental jurisdiction?

     Sorry if it is confusing, its just the more I think about it the more I realize that preemption seems to require some eggshell walking. Thanks in advance for responses.

Michael V. LiRocchi
Lanahan & Reilley, L.L.P
3558 Round Barn Blvd., Ste. 300
Santa Rosa, CA 95403
(707) 524-4270
<mlirocchi[_at_]lanahan.com> Received on Mon Jan 11 1999 - 17:53:26 GMT