Re: preemption

On Thu, 28 Oct 1999, Lynn Winebarger <owinebar[_at_]free-expression.org> wrote:
>
> On Tue, 26 Oct 1999, Steven D. Jamar <sjamar[_at_]law.howard.edu> wrote:
> >
> > In a conflict between state law and federal law, the state law would
> > clearly be preempted under the supremacy clause regardless of any
> > statutory preemption. There is always the problem of what is a
> > conflict. For example, a state copyright law may well not conflict
> > with federal law. But a state copyright law covering the same subject
> > matter as the federal law would be statutorily preempted.
>
> Could you give an (hypothetical) example of what you mean by the
> last 2 sentences?

Surely.

State law: "A 20 year copyright is granted to the author of an original work fixed in a tangible medium of expression."

This does not conflict with federal law -- it overlaps it -- though is not coextensive with it.

But it clearly is preempted by the copyright statutory preemption clause.

Many less obvious types of state laws similiarly would not conflict with federal law but would be statutorily preempted as impermissibly regulating the same subject matter as copyright. I think a law that were to try to protect layout may be preempted under the same subject matter idea - though it may also be preempted as conflicting since layout may be considered to be within the subject matter of copyright law but not protected.

BTW, I think layout is a bit more complicated than this.

--
Steven D. Jamar
Professor of Law
Director LRW Program (http://www.law.howard.edu/lrw/)
Howard University School of Law
2900 Van Ness Street NW
Washington, DC  20008

vox:  202-806-8017   fax:  202-806-8428
mailto:sjamar[_at_]law.howard.edu

He who loves the law dies either mad or poor.

Thomas Middleton, "The Phoenix," c. 1607