An Ohio appellate court held that the trial court erred in dismissing the plaintiff's breach of contract claim as pre-empted by the Copyright Act. The dispute concerned a royalty-split between co-authors of a song, later licensed to the Blacked Eyed Peas, pursuant to an alleged oral agreement. Although the dispute did concern a song and recording, there was no "extra element" because "Th[e] alleged promise to split the proceeds is 'qualitatively different' than that of a copyright infringement claim."
McCants does not argue that Tolliver could not reproduce, perform, or distribute the song. See 17 U.S.C. § 106. Instead, McCants argues that he should be compensated according to the alleged agreement between the parties. Because McCants’ claim for breach of contract is qualitatively different than that of a copyright infringement claim, his claim is not preempted by the Copyright Act and the court erred in finding that it was preempted.