Addressing the Incoherency of Judicial Interpretation of the Preemption Provision of the Copyright Act of 1976

Joseph P. Bauer, Notre Dame Law School

Abstract

Section 301 of the Copyright Act of 1976 expressly preempts state law actions which are within the “general scope of copyright” and which assert claims which are “equivalent to” the rights conferred by the Act. The Act eliminated the previous system of common law copyright for unpublished works, which had prevailed under the prior (the 1909) Copyright Act. By federalizing copyright law, the drafters of the statute sought to achieve uniformity and to avoid the potential for state protection of infinite duration.

The legislative history of Section 301 stated that this preemption provision was set forth “in the clearest and most unequivocal language possible, so as to foreclose any conceivable misinterpretation … and to avoid the development of any vague borderline between State and Federal protection.” In fact, this goal has never been realized. Instead, there are literally hundreds of federal and state decisions interpreting this provision, which can charitably be described as inconsistent and even incoherent. And, despite the plethora of court of appeals decisions which have overruled district court decisions, and/or which have contained strong dissenting opinions, the U.S. Supreme Court has never decided a case under Section 301. In short, it would not be an overstatement to describe this important provision in the Copyright Act as a “legislative failure.”

This Article first reviews the background of the 1909 and 1976 Acts, including the rationales for copyright protection and the role played by the preemption provision in advancing those goals. The Article canvasses extensively the judicial treatment of Section 301, including detailed critiques of many of these decisions. The Article also examines the constitutional aspects of preemption, including the role played by the Supremacy Clause. Most importantly, the Article seeks to provide ways to advance the original goal of the drafters of Section 301, of federalizing copyright law and of affording consistent interpretation of the preemption provisions. The Article continually returns to first principles – these goals of the drafters – and uses them to argue for expanded preemption of many state law claims.