Compendium of U.S. Copyright Practices, 3rd Edition

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102.5 State Laws

102.5 State Laws

U.S. copyright protection is governed by federal law. Section 301 (A) of the 1976 Act preempts all similar protections provided by state law, other than with respect to sound recordings fixed before February 15, 1972, as provided under Section 301 (C) of the Act. Preemption applies only when a state law provides protections that are equivalent to those set forth in the Copyright Act (i.e., rights equivalent to any of the exclusive rights under Section 106 of the Act in fixed works of authorship that fall within the subject matter of copyright). There are a significant number of court decisions interpreting exactly when a state claim is close enough to an exclusive right provided by the Copyright Act to be preempted. This case law should be consulted for questions regarding preemption and may vary to some extent by jurisdiction.

Sections 301 (B) and (C) of the 1976 Act also specifically set forth some types of copyright-like protections that states may provide. These include: (i) works not fixed in a tangible medium of expression; (ii) a narrow exception for nonsubscription broadcast transmission of pre-1972 sound recordings; (iii) state and local landmarks, historic preservation, zoning, or building codes relating to architectural works protected under Section 102 (A) (8) of the Act; and (iv) causes of actions for acts that took place before January 1, 1978.

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