State Anti-Copying Laws

• Author: Robert A. Gorman
• Profession: University of Virginia School of Law
• Pages: 113

Throughout the history of copyright law in the United States, the laws of the several states-under a variety of legal theories-have afforded protection against the unauthorized copying or other use of the intellectual creations of others. Most significantly, until 1978, state law generally forbade the unauthorized first printing or public distribution of an unpublished work. This was known as common-law copyright (typically afforded by judicial development but sometimes by state statute). Since the amendment of the Copyright Act, effective January 1, 1978, so as to extend federal protection to all works from the moment they are "fixed in a tangible medium of expression," federal copyright has automatically attached to even unpublished works, and-under the terms of section 301 of the Act--'no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State." Because state common-law copyright afforded relief against conduct-copying or public distribution pure and simple-that is exactly the same as that afforded under the 1976 Act, Congress determined that the exclusive rights, limitations, remedies and federal jurisdiction that are provided through the federal act should preempt state copyright law.

There are, however, a number of other state theories that bar one person's unauthorized use of another's intellectual product. State laws of unfair competition forbid one person's "passing off" his or her own work as having been created by another; this theory is frequently utilized to prevent the use of a title or a character (or character name) that has become popular in identifying another person's earlier work. State trademark law is an application of the doctrine of "passing off" to goods and services the labeling of which would cause confusion in the consumer marketplace. Another branch of unfair competition law is known as "misappropriation." The converse of "passing off,". pre 'ents one person from representing expressly or impliedly to be hiL c..'r own a work actually created by another person; the layman labels this as plagiarism, but the law has called this kind of typically unattributed copying "misappropriation." The Supreme Court decision in International News Service v. Associated Press,196 rendered as an elaboration of federal tort law in the early years of this century, articulated this doctrine and its underlying rationale and has inspired state...