Copyrights - 17 USC Section 301

01/19/04

Sec. 301. Preemption with respect to other laws

(a) On and after January 1, 1978, all legal or equitable rights
that are equivalent to any of the exclusive rights within the
general scope of copyright as specified by section 106 in works of
authorship that are fixed in a tangible medium of expression and
come within the subject matter of copyright as specified by
sections 102 and 103, whether created before or after that date and
whether published or unpublished, are governed exclusively by this
title. Thereafter, no person is entitled to any such right or
equivalent right in any such work under the common law or statutes
of any State.
(b) Nothing in this title annuls or limits any rights or remedies
under the common law or statutes of any State with respect to -
(1) subject matter that does not come within the subject matter
of copyright as specified by sections 102 and 103, including
works of authorship not fixed in any tangible medium of
expression; or
(2) any cause of action arising from undertakings commenced
before January 1, 1978;
(3) activities violating legal or equitable rights that are not
equivalent to any of the exclusive rights within the general
scope of copyright as specified by section 106; or
(4) State and local landmarks, historic preservation, zoning,
or building codes, relating to architectural works protected
under section 102(a)(8).
(c) With respect to sound recordings fixed before February 15,
1972, any rights or remedies under the common law or statutes of
any State shall not be annulled or limited by this title until
February 15, 2067. The preemptive provisions of subsection (a)
shall apply to any such rights and remedies pertaining to any cause
of action arising from undertakings commenced on and after February
15, 2067. Notwithstanding the provisions of section 303, no sound
recording fixed before February 15, 1972, shall be subject to
copyright under this title before, on, or after February 15, 2067.
(d) Nothing in this title annuls or limits any rights or remedies
under any other Federal statute.
(e) The scope of Federal preemption under this section is not
affected by the adherence of the United States to the Berne
Convention or the satisfaction of obligations of the United States
thereunder.
(f)(1) On or after the effective date set forth in section 610(a)
of the Visual Artists Rights Act of 1990, all legal or equitable
rights that are equivalent to any of the rights conferred by
section 106A with respect to works of visual art to which the
rights conferred by section 106A apply are governed exclusively by
section 106A and section 113(d) and the provisions of this title
relating to such sections. Thereafter, no person is entitled to any
such right or equivalent right in any work of visual art under the
common law or statutes of any State.
(2) Nothing in paragraph (1) annuls or limits any rights or
remedies under the common law or statutes of any State with respect
to -
(A) any cause of action from undertakings commenced before the
effective date set forth in section 610(a) of the Visual Artists
Rights Act of 1990;
(B) activities violating legal or equitable rights that are not
equivalent to any of the rights conferred by section 106A with
respect to works of visual art; or
(C) activities violating legal or equitable rights which extend
beyond the life of the author.

HISTORICAL AND REVISION NOTES
HOUSE REPORT NO. 94-1476
Single Federal System. Section 301, one of the bedrock provisions
of the bill, would accomplish a fundamental and significant change
in the present law. Instead of a dual system of "common law
copyright" for unpublished works and statutory copyright for
published works, which has been the system in effect in the United
States since the first copyright statute in 1790, the bill adopts a
single system of Federal statutory copyright from creation. Under
section 301 a work would obtain statutory protection as soon as it
is "created" or, as that term is defined in section 101 when it is
"fixed in a copy or phonorecord for the first time." Common law
copyright protection for works coming within the scope of the
statute would be abrogated, and the concept of publication would
lose its all-embracing importance as a dividing line between common
law and statutory protection and between both of these forms of
legal protection and the public domain.
By substituting a single Federal system for the present
anachronistic, uncertain, impractical, and highly complicated dual
system, the bill would greatly improve the operation of the
copyright law and would be much more effective in carrying out the
basic constitutional aims of uniformity and the promotion of
writing and scholarship. The main arguments in favor of a single
Federal system can be summarized as follows:
1. One of the fundamental purposes behind the copyright clause
of the Constitution, as shown in Madison's comments in The
Federalist, was to promote national uniformity and to avoid the
practical difficulties of determining and enforcing an author's
rights under the differing laws and in the separate courts of the
various States. Today when the methods for dissemination of an
author's work are incomparably broader and faster than they were
in 1789, national uniformity in copyright protection is even more
essential than it was then to carry out the constitutional
intent.
2. "Publication," perhaps the most important single concept
under the present law, also represents its most serious defect.
Although at one time when works were disseminated almost
exclusively through printed copies, "publication" could serve as
a practical dividing line between common law and statutory
protection, this is no longer true. With the development of the
20th-century communications revolution, the concept of
publication has become increasingly artificial and obscure. To
cope with the legal consequences of an established concept that
has lost much of its meaning and justification, the courts have
given "publication" a number of diverse interpretations, some of
them radically different. Not unexpectedly, the results in
individual cases have become unpredictable and often unfair. A
single Federal system would help to clear up this chaotic
situation.
3. Enactment of section 301 would also implement the "limited
times" provision of the Constitution [Const. Art. I, Sec. 8, cl.
8], which has become distorted under the traditional concept of
"publication." Common law protection in "unpublished" works is
now perpetual, no matter how widely they may be disseminated by
means other than "publication"; the bill would place a time limit
on the duration of exclusive rights in them. The provision would
also aid scholarship and the dissemination of historical
materials by making unpublished, undisseminated manuscripts
available for publication after a reasonable period.
4. Adoption of a uniform national copyright system would
greatly improve international dealings in copyrighted material.
No other country has anything like our present dual system. In an
era when copyrighted works can be disseminated instantaneously to
every country on the globe, the need for effective international
copyright relations, and the concomitant need for national
uniformity, assume ever greater importance.
Under section 301, the statute would apply to all works created
after its effective date [Jan 1, 1978], whether or not they are
ever published or disseminated. With respect to works created
before the effective date of the statute [Jan. 1, 1978] and still
under common law protection, section 303 of the statute would
provide protection from that date on, and would guarantee a minimum
period of statutory copyright.
Preemption of State Law. The intention of section 301 is to
preempt and abolish any rights under the common law or statutes of
a State that are equivalent to copyright and that extend to works
coming within the scope of the Federal copyright law. The
declaration of this principle in section 301 is intended to be
stated in the clearest and most unequivocal language possible, so
as to foreclose any conceivable misinterpretation of its
unqualified intention that Congress shall act preemptively, and to
avoid the development of any vague borderline areas between State
and Federal protection.
Under section 301(a) all "legal or equitable rights that are
equivalent to any of the exclusive rights within the general scope
of copyright as specified by section 106" are governed exclusively
by the Federal copyright statute if the works involved are "works
of authorship that are fixed in a tangible medium of expression and
come within the subject matter of copyright as specified by
sections 102 and 103." All corresponding State laws, whether common
law or statutory, are preempted and abrogated. Regardless of when
the work was created and whether it is published or unpublished,
disseminated or undisseminated, in the public domain or copyrighted
under the Federal statute, the States cannot offer it protection
equivalent to copyright. Section 1338 of title 28, United States
Code, also makes clear that any action involving rights under the
Federal copyright law would come within the exclusive jurisdiction
of the Federal courts. The preemptive effect of section 301 is
limited to State laws; as stated expressly in subsection (d) of
section 301, there is no intention to deal with the question of
whether Congress can or should offer the equivalent of copyright
protection under some constitutional provision other than the
patent-copyright clause of article 1, section 8 [Const. Art. I,
Sec. 8, cl. 8].
As long as a work fits within one of the general subject matter
categories of sections 102 and 103, the bill prevents the States
from protecting it even if it fails to achieve Federal statutory
copyright because it is too minimal or lacking in originality to
qualify, or because it has fallen into the public domain. On the
other hand section 301(b) explicitly preserves common law copyright
protection for one important class of works: works that have not
been "fixed in any tangible medium of expression." Examples would
include choreography that has never been filmed or notated, an
extemporaneous speech, "original works of authorship" communicated
solely through conversations or live broadcasts, and a dramatic
sketch or musical composition improvised or developed from memory
and without being recorded or written down. As mentioned above in
connection with section 102, unfixed works are not included in the
specified "subject matter of copyright." They are therefore not
affected by the preemption of section 301, and would continue to be
subject to protection under State statute or common law until fixed
in tangible form.
The preemption of rights under State law is complete with respect
to any work coming within the scope of the bill, even though the
scope of exclusive rights given the work under the bill is narrower
than the scope of common law rights in the work might have been.
Representatives of printers, while not opposed to the principle
of section 301, expressed concern about its potential impact on
protection of preliminary advertising copy and layouts prepared by
printers. They argued that this material is frequently "pirated" by
competitors, and that it would be a substantial burden if, in order
to obtain full protection, the printer would have to make
registrations and bear the expense and bother of suing in Federal
rather than State courts. On the other hand, these practical
problems are essentially procedural rather than substantive, and
the proposal for a special exemption to preserve common law rights
equivalent to copyright in unpublished advertising material cannot
be justified. Moreover, subsection (b), discussed below, will
preserve other legal grounds on which the printers can protect
themselves against "pirates" under State laws.
In a general way subsection (b) of section 301 represents the
obverse of subsection (a). It sets out, in broad terms and without
necessarily being exhaustive, some of the principal areas of
protection that preemption would not prevent the States from
protecting. Its purpose is to make clear, consistent with the 1964
Supreme Court decisions in Sears, Roebuck & Co., v. Stiffel Co.,
376 U.S. 225 [84 S.Ct. 784, 11 L.Ed.2d 661, rehearing denied 84
S.Ct. 1131, 376 U.S. 973, 12 L.Ed.2d 87], and Compco Corp. v.
Day-Brite Lighting, Inc., 376 U.S. 234 [84 S.Ct. 779, 11 L.Ed.2d
669, rehearing denied 84 S.Ct. 1162, 377 U.S. 913, 12 L.Ed.2d 183],
that preemption does not extend to causes of action, or subject
matter outside the scope of the revised Federal copyright statute.
The numbered clauses of subsection (b) list three general areas
left unaffected by the preemption: (1) subject matter that does not
come within the subject matter of copyright; (2) causes of action
arising under State law before the effective date of the statute
[Jan. 1, 1978]; and (3) violations of rights that are not
equivalent to any of the exclusive rights under copyright.
The examples in clause (3), while not exhaustive, are intended to
illustrate rights and remedies that are different in nature from
the rights comprised in a copyright and that may continue to be
protected under State common law or statute. The evolving common
law rights of "privacy," "publicity," and trade secrets, and the
general laws of defamation and fraud, would remain unaffected as
long as the causes of action contain elements, such as an invasion
of personal rights or a breach of trust or confidentiality, that
are different in kind from copyright infringement. Nothing in the
bill derogates from the rights of parties to contract with each
other and to sue for breaches of contract; however, to the extent
that the unfair competition concept known as "interference with
contract relations" is merely the equivalent of copyright
protection, it would be preempted.
The last example listed in clause (3) - "deceptive trade
practices such as passing off and false representation" -
represents an effort to distinguish between those causes of action
known as "unfair competition" that the copyright statute is not
intended to preempt and those that it is. Section 301 is not
intended to preempt common law protection in cases involving
activities such as false labeling, fraudulent representation, and
passing off even where the subject matter involved comes within the
scope of the copyright statute.
"Misappropriation" is not necessarily synonymous with copyright
infringement, and thus a cause of action labeled as
"misappropriation" is not preempted if it is fact based neither on
a right within the general scope of copyright as specified by
section 106 nor on a right equivalent thereto. For example, state
law should have the flexibility to afford a remedy (under
traditional principles of equity) against a consistent pattern of
unauthorized appropriation by a competitor of the facts (i.e., not
the literary expression) constituting "hot" news, whether in the
traditional mold of International News Service v. Associated Press,
248 U.S. 215 (1918) [39 S.Ct. 68, 63 L.Ed. 211], or in the newer
form of data updates from scientific, business, or financial data
bases. Likewise, a person having no trust or other relationship
with the proprietor of a computerized data base should not be
immunized from sanctions against electronically or
cryptographically breaching the proprietor's security arrangements
and accessing the proprietor's data. The unauthorized data access
which should be remediable might also be achieved by the
intentional interception of data transmissions by wire, microwave
or laser transmissions, or by the common unintentional means of
"crossed" telephone lines occasioned by errors in switching.
The proprietor of data displayed on the cathode ray tube of a
computer terminal should be afforded protection against
unauthorized printouts by third parties (with or without improper
access), even if the data are not copyrightable. For example, the
data may not be copyrighted because they are not fixed in a
tangible medium of expression (i.e., the data are not displayed for
a period or not more than transitory duration).
Nothing contained in section 301 precludes the owner of a
material embodiment of a copy or a phonorecord from enforcing a
claim of conversion against one who takes possession of the copy or
phonorecord without consent.
A unique and difficult problem is presented with respect to the
status of sound recordings fixed before February 12, 1972, the
effective date of the amendment bringing recordings fixed after
that date under Federal copyright protection. In its testimony
during the 1975 hearings, the Department of Justice pointed out
that, under section 301 as then written:
This language could be read as abrogating the anti-piracy laws
now existing in 29 states relating to pre-February 15, 1972,
sound recordings on the grounds that these statutes proscribe
activities violating rights equivalent to * * * the exclusive
rights within the general scope of copyright. * * * Certainly
such a result cannot have been intended for it would likely
effect the immediate resurgence of piracy of pre-February 15,
1972, sound recordings.
The Department recommended that section 301(b) be amended to
exclude sound recordings fixed prior to February 15, 1972 from the
effect of the preemption.
The Senate adopted this suggestion when it passed S. 22. The
result of the Senate amendment would be to leave pre-1972 sound
recordings as entitled to perpetual protection under State law,
while post-1972 recordings would eventually fall into the public
domain as provided in the bill.
The Committee recognizes that, under recent court decisions,
pre-1972 recordings are protected by State statute or common law,
and that should not all be thrown into the public domain instantly
upon the coming into effect of the new law. However, it cannot
agree that they should in effect be accorded perpetual protection,
as under the Senate amendment, and it has therefore revised clause
(4) to establish a future date for the pre-emption to take effect.
The date chosen is February 15, 2047 which is 75 years from the
effective date of the statute extending Federal protection to
recordings.
Subsection (c) makes clear that nothing contained in Title 17
annuls or limits any rights or remedies under any other Federal
statute.

AMENDMENTS
1998 - Subsec. (c). Pub. L. 105-298 substituted "2067" for "2047"
wherever appearing.
1990 - Subsec. (b)(4). Pub. L. 101-650, Sec. 705, added par. (4).
Subsec. (f). Pub. L. 101-650, Sec. 605, added subsec. (f).
1988 - Subsec. (e). Pub. L. 100-568 added subsec. (e).
EFFECTIVE DATE OF 1990 AMENDMENT
Amendment by section 605 of Pub. L. 101-650 effective 6 months
after Dec. 1, 1990, see section 610 of Pub. L. 101-650, set out as
an Effective Date note under section 106A of this title.
Amendment by section 705 Pub. L. 101-650 applicable to any
architectural work created on or after Dec. 1, 1990, and any
architectural work, that, on Dec. 1, 1990, is unconstructed and
embodied in unpublished plans or drawings, except that protection
for such architectural work under this title terminates on Dec. 31,
2002, unless the work is constructed by that date, see section 706
of Pub. L. 101-650, set out as a note under section 101 of this
title.
EFFECTIVE DATE OF 1988 AMENDMENT
Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any
cause of action arising under this title before such date being
governed by provisions in effect when cause of action arose, see
section 13 of Pub. L. 100-568, set out as a note under section 101
of this title.

Last modified: April 19, 2006