26. Federal Preemption
Learning Objectives: Unit 26
Upon completion of this unit, you should be able to:
- Explain the concept of federal preemption of state law.
- Describe the analytical frameworks for federal preemption.
- Explain the difference between preemption in copyright, patent and trademark law.
Most of the law we discussed this semester is federal law. However, state law also operates in this space, either by express statute or by application of common law. These cases address the question of when federal law supersedes that of the states.
17 U.S. Code §301. Preemption with respect to other laws (2018)
(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of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title.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).
