Re: "state copyright" -- history question

On Wed, May 03, 2000, Lynn Winebarger <owinebar[_at_]free-expression.org> wrote:
>
> I've recently been confronted by someone claiming that the rise
> of federal copyright law preemption of state/common law copyright
> is motivated by big business (Sony and the like).
>
> In my reading I haven't seen much (any that I recall, actually)
> mention of state copyright law (which I would assume would have to
> be prior to the statutory preemption clause at least). Does anyone
> know of any useful reference materials in this regard? I had thought
> that state copyright laws would be constitutionally preempted, even
> without the specific statutory language currently used. Certainly
> the notion of fair use (which this fellow regards as a horrendous
> affront to his "natural" right to control his work) has been around
> for a long long time in the common law -- did state laws repudiate
> this notion? Did the federal courts uphold such laws?

One of the main purposes of the '76 revision revolved around uniformity -- the kind that would come from getting rid of state common law copyright. Nimmer on copyright is pretty good on this point in his discussion of sound recordings. Radio broadcasts, for example, were protected by state misappropriation law before that time. They may have not called it "copyright" but it would have had the same effect.

I'm pretty sure that the '09 act did not have the same kind of prohibition as the revision, and thus those who would want to preempt a state cause would have to rely on the broader "field" preemption, which would likely not exist for subject matter outside the scope of copyright at that time.

But hey, that's off the top of my head, and you get what you pay for... :-)

Cheers.

Chris Mohr
<chrismohr[_at_]sprintmail.com> Received on Wed May 03 2000 - 22:37:50 GMT