Re: preemption

On Fri, 5 Nov 1999, Vance R. Koven <vrkoven[_at_]world.std.com> wrote:
>
> On Wed, 03 Nov 1999, Steven D. Jamar <sjamar[_at_]law.howard.edu> wrote:
> >
> > On Tue, 02 Nov 1999, Scott Brody <asbrody[_at_]earthlink.net>
> > >
> > > There is a state action tantamount to a federal copyright action.
> > > It is Plagerism. At least there was about 12 rears ago, which
> > > was the last time I was involved in litigation of this sort.
> > > The elements of proof, as I recall, were virtually identicle to
> > > the Fed action. Of course it can be removed to fed court if
> > > defendant so chooses.
> >
> > I am most skeptical that plagiarism is illegal in any state. If it
> > is, then a book like Passages would need to be illegal to sell in the
> > state -- as would Watership Down for that matter -- depending slightly,
> > I suppose, on one's definition of plagiarism -- but the standard one --
> > presenting another's work as one's own -- would seem to encompass two
> > things: first, the ideas. Ideas cannot be protected -- because to do
> > so would violate the federal copyright law. And the expression cannot
> > be separately protected by the state -- because it is preempted by the
> > federal copyright act.
>
> As to Prof. Jamar's second point, I think he's quite right: copying
> expression is exactly what the Copyright Act is about. As to the
> first, though, passing off someone else's work as one's own seems
> like classic unfair competition, which is protected by statute and
> common law in most places. There may even be implications in those
> states that have "misappropriation of identity" laws.

This is known as "reverse passing off" in the trademark world, and there is a famous case involving bongo drums that was the seminal case defining the issue. The defendant bought bongo drums, and then changed the label to his own. There may be a trademark action in the situation, though one would have to study to determine if such was the case...

Tom Workman
<tworkman[_at_]erols.com> Received on Mon Nov 08 1999 - 18:13:59 GMT