Re: preemption

On Fri, Nov 05, 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.
>
> The elements of proof, however, would not be identical between unfair
> competition and copyright.

I don't have citations handy, but there are cases in which unfair competition claims were held to be preempted to the extent they alleged causes of action that were unfair competition by unauthorized copying.

Harold Federow
<haroldf[_at_]bsquare.com> Received on Mon Nov 08 1999 - 18:41:57 GMT