Federal Preemption

The rule of preemption states that the common law or statutes of any U.S. state creating legal or equitable rights, or any exclusive right within the general scope of copyright to published or unpublished works of authorship that are fixed in a tangible medium of expression, and was created before or after January 1, 1978 shall be preempted.  Any adherence to the principles of Berne Convention shall not affect federal preemption.  However, the rights or remedies under the common law or statute of any state relating to the following are not preempted.

  • Any subject matter that does not come within the scope of copyright as defined in the statute.
  • Any cause of action arising from “undertakings” that commenced before January 1, 1978.
  • Any activity that violates legal or equitable rights not equivalent to any exclusive right that falls within the general scope of copyright.
  • Any state or local landmark, historic preservation, zoning, or building codes, that are related to architectural works as specifically defined by statute.

Any right or remedy under the common law or statutes of any state related to sound recordings fixed before February 15, 1972 shall not be annulled or limited until February 15, 2067.  The Federal preemptive provisions shall apply to the rights and remedies pertaining to any cause of action arising from undertakings commencing after February 15, 2067.


Inside Federal Preemption