Copyright LawPreemption of State Law
Historically, copyright protection had been provided through a dual
under which the Federal government, by statute, provided limited monopolies
intellectual property, at the same time that state statutory and common laws
established roughly equivalent protections. In 1976, Congress fundamentally
changed this system by introducing a single, preemptive federal statutory
The federal preemption provision, codified at 17 U.S.C. § 301(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
copyright as specified by section 106 in works of authorship that are fixed
a tangible medium of expression and come within the subject matter of
as specified by sections 102 and 103, whether created before or after that
and whether published or unpublished, are governed exclusively by this
Thereafter, no person is entitled to any such right or equivalent right in
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
of the general subject matter categories (of federal statutory copyrights),
bill prevents the states from protecting it even if it fails to achieve
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.
94th Cong., 2d Sess. 51, 131 (1976). "Section 301 in effect establishes a
two-pronged test to be applied in preemption cases." Crow v.
720 F.2d 1224, 1225 (11th Cir. 1983), cert. denied, 469 U.S. 819
Under this preemption test, the states are precluded from enforcing
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. Id. at 1225-26. Adopting this standard, the Eleventh
Circuit has held that section 301 now precludes state criminal prosecutions
acts of copyright infringement. Id.
Currently, 43 states have "true name and address" statutes that can be
to combat piracy. Many of these statutes, however, are narrowly drawn to
only to the sale of videotapes and sound recordings. Prosecutors are
to consult with state authorities, or with the Computer Crime and
Property Section of the Criminal Division for current information on the
operation of these statutes.
[cited in Criminal Resource Manual 1859; USAM 9-71.001; USAM 9-71.010]