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U.S. copyright law[]


For most of the history of the United States, state and common law copyright protections coexisted with federal copyright laws.[1] But the Copyright Act of 1976 amended Title 17 of the U.S. Code to preempt state laws that provide rights "equivalent to" rights granted under federal copyright law.[2]

Section 301 of the 1976 Copyright Act (17 U.S.C. §301) states, in pertinent part:

(a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

(b) Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to — (1) subject matter that does not come within the subject matter of copyright as specified by sections 102 and 103, including works of authorship not fixed in any tangible medium of expression; or (2) any cause of action arising from undertakings commenced before January 1, 1978; (3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106; or (4) State and local landmarks, historic preservation, zoning, or building codes, relating to architectural works protected under section 102(a)(8).* * * (d)Nothing in this title annuls or limits any rights or remedies under any other Federal statute. (e) The scope of Federal preemption under this section is not affected by the adherence of the United States to the Berne Convention or the satisfaction of obligations of the United States thereunder.

Despite this preemption, copyright law continues to be intertwined with state law in certain cases, such as those involving license agreements and other contracts governing ownership and use of copyrighted works.[3] State copyright law also continues to apply to sound recordings recorded before 1972, because sound recordings were not protected by federal copyright law until 1972. Consequently, pre-1972 sound recordings may still be protected by state copyrights until 2067.[4]

Preemption test[]

The Ninth Circuit uses a two-part test to determine whether a claim is preempted by the Copyright Act.[5]

First, preemption will only occur if the work in question falls within the scope of the Copyright Act as set forth in 17 U.S.C. §§102, 103.[6] Second, the specific state law rights claimed must be commensurate to rights that are protected by the Copyright Act in 17 U.S.C. §301(a).[7] "A 'right' which is equivalent to copyright is one which is infringed by the mere act of reproduction, performance, distribution, or display."[8] If the state law contains an element that is not present in the Copyright Act which materially changes the cause of action, the state law claim will not be preempted.[9]

“Under the general scope requirement, Section 301 ‘preempts only those state law rights that may be abridged by an act which, in and of itself, would infringe one of the exclusive rights' provided by federal copyright law.’”[10] Accordingly, the court stated the appropriate “general scope” test:

But if an “extra element" is "required instead of or in addition to the acts of reproduction, performance, distribution or display, in order to constitute a state-created cause of action, then the right does not lie within the general scope of copyright, and there is no preemption.[11]

"In Data General Corp. v. Grumman Sys. Support Corp.,[12] the First Circuit held that ‘if a state cause of action requires an extra element, beyond mere copying, preparation of derivative works, performance, distribution or display, then the state cause of action is qualitatively different from, and not subsumed within, a copyright infringement claim and federal law will not preempt the state action.’”[13] “To determine whether a claim is qualitatively different, we look at what the plaintiff seeks to protect, the theories in which the matter is thought to be protected and the rights sought to be enforced."[14]

“Not every extra element is sufficient to establish a qualitative variance between rights protected by federal copyright law and that by state law.”[15] “Indeed, courts have taken a ‘restrictive view of what extra elements transform an otherwise equivalent claim into one that is qualitatively different from a copyright infringement claim.’”[16]

Cases applying the preemption doctrine[]

Courts have had the opportunity to consider which state law claims are preempted by the Copyright Act and which are not.


While conversion is generally immune from copyright preemption because it involves tangible property, conversion actions seeking only damages for reproduction of the property — not return of tangible property — are preempted by the Copyright Act.[17]

Unfair competition[]

In National Basketball Association v. Motorola, Inc.,[18] the NBA brought two state law unfair competition claims along with four claims under federal statutes, including one claim of copyright infringement, against a manufacturer of pager devices used to broadcast and receive real-time data and statistics for in-progress NBA games. In its analysis, the court stated that “basketball games do not fall within the subject matter of federal copyright protection because they do not constitute ‘original works of authorship’ under 17 U.S.C. §102(a).”[19]

Even though the court determined that the underlying material at issue was not copyrightable, the court further noted that

[c]opyrightable material often contains uncopyrightable elements within it, but Section 301 preemption bars state law misappropriation claims with respect to uncopyrightable as well as copyrightable elements.[20]


  1. See, e.g., Wheaton v. Peters, 33 U.S. 591, 597-98 (1834) (full-text).
  2. 17 U.S.C. §301(a).
  3. See, e.g., Storage Technology Corp. v. Custom Hardware Eng'g & Consulting, Inc., 421 F.3d 1307 (Fed. Cir. 2005) (full-text).
  4. See La Cienega Music Co. v. ZZ Top, 53 F.3d 950 (9th Cir. 1995) (full-text); 17 U.S.C. §301(c).
  5. Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006) (full-text); Kodadek v. MTV, 152 F.3d 1209 (9th Cir. 1998) (full-text); Del Madera Properties v. Rhodes & Gardner, Inc., 820 F.2d 973 (9th Cir. 1987) (full-text) (overruled on other grounds).
  6. Id.
  7. Id.
  8. Balboa v. TransGlobal, 218 Cal.App.3d 1327, 267 Cal. Rptr. 787 (1990) (full-text).
  9. Id. at 1327.
  10. Id. at 850 (quoting Computer Assoc. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 716 (2d Cir. 1992)) (full-text).
  11. Id. (quoting Computer Assoc. Int'l, 982 F.2d at 716).
  12. 36 F.3d 1147 (1st Cir. 1994) (full-text).
  13. Daley, 2006 U.S. Dist. LEXIS 4061, at *6-7 (M.D. Pa. Jan. 19, 2006) (quoting Data General, 36 F.3d at 1164).
  14. Id. at *7 (quoting Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 306 (2d Cir. 2004)) (full-text).
  15. Id. (quoting Dun & Bradstreet Software Servs. v. Grace Consulting, 307 F.3d 197, 218 (3d Cir. 2002) (full-text)).
  16. Id. (quoting Briarpatch, 373 F.3d at 306).
  17. Firoozye v. Earthlink Network, 153 F.Supp.2d 1115, 1130 (N.D. Cal. 2001) (full-text).
  18. 105 F.3d 841 (2d Cir. 1997) (full-text).
  19. Id. at 846.
  20. Id. at 849.