Copyright Law Introduction – Federal Law Preempts State Law

Historically, copyright protection had been provided through a dual system under which the federal government, by statute, provided limited monopolies for intellectual property concurrently with state statutory and common laws that established roughly equivalent protections. In 1976, Congress fundamentally changed this system by introducing a single, preemptive federal statutory scheme. The federal preemption provision, codified at 17 U.S.C. § 301(a), states that:

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of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title.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.


As stated in the legislative history, “[a]s long as a work fits within one of the general subject matter categories [of federal statutory copyrights], the bill prevents the States from protecting it even if it fails to achieve federal statutory copyright because it is too minimal or lacking in originality to qualify, or because it has fallen into the public domain.” H.R. Rep. No. 1476, 94th Cong., 2d Sess. 51, 131 (1976).

Section 301 establishes a two-pronged test to determine whether preemption applies. Under this preemption test, states are precluded from enforcing penalties for copyright violations if the intellectual property at issue falls within the “subject matter of copyright” as defined by federal law and if the claimed property rights are “equivalent to” the exclusive rights provided by federal copyright law.

Practice Tip: Indiana is one of over 40 states with a “true name and address” provision in its code. That section applies only to tangible “recordings” of sounds and/or visual images. Under § 24-4-10-4:

A person may not:

(1) sell;

(2) rent;

(3) transport; or

(4) possess;

a recording for commercial gain or personal financial gain if the recording does not conspicuously display the true name and address of the manufacturer of the recording.

Violation of that provision constitutes a Class A infraction.

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