University of Baltimore Law Forum Volume 16 Article 2 Number 3 Spring, 1986

1986 Idea Protection and the Copyright Clause: The Problems of Preemption Laura Anne Moeller

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by Laura Anne Moeller

opyright does not protect ideas, purpose was to provide "a single Federal Background but only the expression of ideas. I system" of statutory copyright that "would The United States Constitution states, C This distinction, long recognized greatly improve the operation of the copy­ "Congress shall have the power ... To in copyright law as the idea-expression right law and would be much more effec­ Promote the Progress of Science and the dichotomy, was given express statutory tive in carrying out the basic constitutional useful Arts, by securing for limited Times recognition in the 1976 Copyright Act. 2 aims of uniformity and the promotion of to Authors and Inventors the exclusive Section 102(b) provides: "In no case does writing and scholarship." II Section 301 Right to their respective Writings and Dis­ copyright protection for an original work of attempts to state this principle "in the coveries." 13 The constitutional limitation authorship extend to any idea, procedure, clearest and most unequivocal language of copyright to works of "Authors" 14 has process, system, method of operation, con­ possible, so as to foreclose any conceivable been construed to impose a threshold re­ cept, principle, or discovery, regardless of misinterpretation of its unqualified inten­ quirement of an act of authorship - the the form in which it is described, explained, tion that Congress shall act preemptively, work must be original with him. This low illustrated, or embodied in such a work." 3 and to avoid the development of any vague level threshold has no real concern for While ideas have never received federal borderline areas between State and Federal aesthetic merit or creative genius, serving copyright protection, state law doctrines protection." 12 Unfortunately, this intent mainly to prevent copyrighting of public have traditionally provided protection for was not effected and the determination of domain material. 15 Copyright is also lim­ such creative investments, subject to su­ preemption under Section 301 is still sub­ ited to "Writings," 16 which has been de­ premacy clause and first amendment limi­ ject to some very diverse interpretations. fined to include any physical renderings of tations. the fruits of creative intellectual or aesthetic Copyright preemption issues invariably labor. 17 The primary purpose ofcopyright arose as state law became a source of pro­ protection is to encourage contributions to tection for intellectual property. In Sears, recorded knowledge. Reward in the form Roebuck & Co. v. StlfJe! Co. 4 and Compco of property rights to the author is a secon­ Corp. v. Day-Brite Lighting, Inc.,5 the Su­ dary consideration; the limited monopoly preme Court adopted a sweeping standard created being justified by the public inter­ offederal preemption, suggesting that state est in the creation and dissemination of in­ protection of intellectual property would tellectual works. IS As the Supreme Court be preempted whenever it conflicted, even recently reiterated in Harper & Row Pub­ indirectly, with the objectives of the fed­ lishers, Inc. v. Nation Enterprises,19 this eral copyright and patent laws. However, limited grant achieves an important public in Goldstein v. Calzfornia 6 and Kewanee purpose. "It is intended to motivate the Co. v. Bicron Oil Corp., 7 the Supreme creative activity of authors and inventors Court curbed the preemptive sweep of the by the provision of a special reward, and to Sears-Compco doctrine and allowed for allow the public access to the products of state protection in all areas which Congress their genius after the limited period of ex­ had left "unattended."s clusive control has expired." 20 The idea­ Section 301 of the 1976 Copyright Revi­ expression dichotomy balances these two sion Act9 was intended to provide a statu­ competing interests by limiting copyright tory resolution of the copyright preemption protection to the author's expression, not issues. The section effectively abolished the underlying ideas or facts he expresses. 21 common law copyright and established This limit on an author's control is argu­ that state laws regulating copyright gen­ ably necessary. Were an author able to pre­ erally would be preempted. 10 The avowed vent subsequent authors from using con-

6-The Law Forum/Spring, 1986 cepts, ideas, or facts contained in his or her Preemption Before the 1976 Act limited ambit and renewing the vigor of 42 work, the creative process would wither The Supreme Court considered the ques­ state doctrines. and scholars would be forced into unpro­ tion of federal preemption of copyright for Kewanee allowed trade secret protection ductive replication of the research of their the first time in Sears, Roebuck & Co. v. for processes that were disqualified from 22 predecessors. First amendment princi­ Stlffel Co., 31 and its companion case Compeo federal patent protection under one of the ples are also brought into play, as a broad Corp. v. Day-Brite Lighting, Inc. 32 In each, patent law's novelty requirements. 43 The dissemination of principles, ideas, and fac­ the Court reversed a decision under state Court expanded the potential scope ofstate tual information is crucial to the robust unfair competition law that prohibited the intellectual property legislation even fur­ public debate and informed citizenry that copying of an unpatentable light fixture. ther than had been done in Goldstein when are "the essence of self-government." 23 In Compeo, Justice Black articulated a it concluded that the "only limitation on The above-stated principles are part of sweeping standard of federal preemption. the states is that in regulating the area of the underlying problem ofpreemption. To patents and copyrights, they do not con­ allow state protection of ideas and other When an article is unprotected by a flict with the operation of the laws in this subject matter specifically excluded from patent or a copyright, state law may area passed by Congress." 44 Thus it would federal statutory protection may contravene not forbid others to copy that article. seem that even if the Goldstein inquiry the purpose ofthe copyright clause and vio­ To forbid copying would interfere showed that a subject matter has not been late the constitutional allocation of powers with the federal policy, found in Art. left unattended by Congress, a further in­ between federal and state authority.24 Ifit I, § 8, cl. 8, of the Constitution and in quiry must be made. Kewanee compared is determined that Congress, in balancing the implementing federal statutes, of the respective economic objectives and ef­ the competing interests in copyrighting, re­ allowing free access to copy whatever fects of the state and federal law, and the jected the protection ofideas and other ex­ the federal patent and copyright laws fundamental preemption issue thereby be­ cluded subject matter under Section 102(b) leave in the public domain. 33 came "not whether state law reaches mat­ as repugnant to the policy of the copyright Copyrights and patents were envisaged as ters also subject to federal regulation, but clause, then preemption would be man­ the only two constitutionally authorized whether the two laws function harmoni­ dated under the supremacy clause,25 re­ exceptions to a pervasive federal scheme of ously rather than discordantly."45 gardless of whether or not it is compelled free competition and imitation. 34 State under Section 301. If, however, the object courts, dissatisfied with the results in Sears­ of copyrighting is "simply to separate inter­ Compeo, resorted to artificial distinctions ests the law will protect from those it will between "copying" and "misappropria­ The Effect of Section 301 not, and define the levels and conditions of tion" to evade federal preemption.35 In the wake of the liberal authorization protection accorded," there would be no jus­ Goldstein v. Cahfornia 36 and Kewanee of state intellectual property protection af­ tification for the federal system to intrude Oil Co. v. Bicron Corp. 37 curbed the Sears­ forded by Goldstein and Kewanee, Section into state common law property systems Compeo preemptive sweep. In Goldstein, 301 of the 1976 Copyright Act was en­ and preempt rules that serve to protect an ChiefJustice Burger upheld the validity of acted.46 The section is intended "to make author's investment in creative activity.26 a state criminal law, even though the law clear, consistent with the 1964 Supreme Professor Goldstein suggests that the only extended protection equivalent to copy­ Court decisions in Sears . . . and Compco possible justification for striking down right to subject matter that had not yet re­ . . . that preemption does not extend to state property systems is that, under the ceived federal copyright protection. The causes of action, or subject matter outside supremacy clause, they impermissibly in­ standard used to determine whether the the scope of the revised Federal Copyright terfere with the objects of the federal copy­ federal statute required preemption was Statute."47 Legislative history on the pre­ right system.27 He finds little support for found in Hines v. Davidowitz: whether the emptive purpose behind Section 301 is less such a proposition, for while the Supreme challenged state law "stands as an obstacle than satisfactory due in part to a last min­ Court had adopted a presumption ofinter­ to the accomplishment and execution of ute deletion of a list of state doctrines ference in the Sears-Compeo doctrine, they the full purposes and objectives of Con­ deemed non-equivalent to copyright, and have since retreated from that position. 28 gress." 38 The Court held that the Consti­ therefore not subject to preemption. 48 The Advocates of hardline federal preemption tution's grant of copyright power was not deletion was apparently intended to con­ argue that the subject matter of Section exclusive and that states were free to pro­ form the section to the Justice Department's 102(b) was meant to belong in the public tect published "writings" that did not fall opinion that continued viability ofthe mis­ domain, and to allow state law to prohibit within the scope offederal copyright law. 39 appropriation doctrine would nullifY the the copying of public domain material The scope of the federal law was to be mea­ preemptive effect of the section. However, would contravene the federal copyright sured by the coverage of the statute rather this purpose was lost in the ensuing discus­ scheme. 29 Goldstein believes that this ap­ than the purpose of the constitutional sion. The Congressman that proposed the proach confuses the patent and copyright clause. The Court recognized, however, deletion agreed that he was not trying to schemes. While patent has high threshold that "a conflict would develop if a state at­ change the laws of the states that had al­ requirements for protection, copyright re­ tempted to protect that which Congress in­ ready adopted the misappropriation doc­ quires a minimal showing of originality, tended to be free from restraint or to free trine, stating "I am trying to have this bill no more rigorous than the standards em­ that which Congress had protected."40 leave the state law alone."49 ployed by state doctrines. "There is noth­ Goldstein has been criticized because it The muddled legislative history regard­ ing in the history of ... state laws to sug­ justifies state law protection regardless of ing the intended preemptive scope of Sec­ gest that state courts or legislatures are any the subject matter and ignores the copy­ tion 301 places even more emphasis on more disposed than the federal courts or right clause limitation on monopoly to dealing with the section as enacted. Sec­ Congress to extend monopolies into areas "limited times." 41 Professor Goldstein ap­ tion 301 creates a two-pronged test to de­ where they do not belong." 30 plauds both Goldstein and Kewanee for re­ termine preemption: (1) Does the subject storing federal laws to their historically matter under consideration come within

Spring, 19861The Law Forum - 7 the subject matter ofcopyright as specified statutory monopoly ofcopyright to subject unprotectable, either by copyright or com­ by Sections 102 and 103? (2) Is the state matter included under Section 102(a), not mon law. "Where, as here, historical facts, right involved equivalent to any of the ex­ a definition of excluded subject matter. 53 themes, and research have been deliberately clusive rights provided under Section 106? Professor Goldstein is of the opinion that exempted from the scope ofcopyright pro­ Both of these questions must be answered Section 102(b) specifies certain elements tection to vindicate the overriding goal of in the affirmative for a state law to be pre­ contained in original works of authorship encouraging contributions to recorded empted. If either question is answered in which are not protected. 54 Since these ele­ knowledge, the states are preempted from the negative, Section 301 offers no impedi­ ments are excluded from "works ofauthor­ removing such materials from the public ment to the exercise of state power. ship" under Section 102(b), they do not domain."61 The same analysis could be fall within the subject matter ofcopyright. used to preempt idea protection, as all the This theory has support in Bromhall v. items listed in Section 102(b) are arguably (1) The Subject Matter of Rorvik, 55 which upheld the plaintiff's state designated for the public domain. Copyright law claim for misappropriation ofthe ideas Under Section 301(a), state-created contained in his unpublished doctoral the­ rights, even if "within the general scope of sis. The court held that since copyright (2) Equivalent Rights copyright," are not subject to preemption The second prong of the test to deter­ unless they vest in "works of authorship mine preemption is whether the state right that are fixed in a tangible medium of ex­ involved is equivalent to any of the exclu­ pression and come within the subject mat­ sive rights provided under Section 106. 62 ter of copyright as specified by Sections If the state right is infringed by an act that 102 and 103." 50 Nimmer suggests that Concurrent constitutes copyright infringement, such this is a codification of Goldstein which in­ as unauthorized reproduction, perfor­ dicates that "categories of writings which state-federal mance, distribution, or display, then the Congress has ... brought within the scope right should be deemed equivalent and of the federal statute" are no longer eligible protection is in the subject to preemption if within the subject for protection. 51 best interests of the matter of copyright. Even if ideas are con­ The subject matter of copyright is never sidered within the subject matter of copy­ explicitly defined. Section 102(a) sets out public . .. right, they could be protected by non­ the general area of copyright subject mat­ equivalent state rights. The main problem ter. It states that copyright protection sub­ here is defining the term "equivalent." sists "in original works of authorship fixed Two different approaches have devel­ in any tangible medium of expression," and oped. The first is a comparison of the ele­ lists seven categories for "works of author­ ments of proof. If an added element must ship." Section 102(b) provides that "copy­ protects only the expression of ideas, and be established to prove a violation of the right protection for an original work of not the ideas themselves, the claims being state right, then the right is not preempted. authorship does not extend to any idea, considered were not entitled to protection The second approach examines the impact procedure, process, system, method of under the Act and hence were not pre­ and effect of the right and remedy. The operation, concept, principle, or discov­ empted. 56 The same analysis was used in right must be qualitatively different from ery, regardless of the form in which it is Rand McNally & Co. v. Fleet Management that granted by copyright to escape pre­ embodied." Since copyright protection is Systems. 57 Rand McNally argued, among emption. If the effect of the state right not available for these matters, they are other things, that the defendant had copied would be to place the defendant under the arguably not within the subject matter of the plaintiff's procedures, processes, and same restrictions from copying and use as copyright, and state law protection of them systems for calculating mileage data in pre­ would the copyright laws, then that right would not be preempted. Whereas Gold­ paring roadway mileage charts. The court should be preempted. stein would require an inquiry to deter­ stated that, "[a]s these procedures are ex­ The doctrine of misappropriation is the mine whether Congress had left the area pressly excluded from copyright protec­ most problematic source of litigation in unattended or had expressly decided to tion, Section 102(b), they fail the subject this area. While one House Committee deny protection, thereby preempting state matter test of Section 301(a) and are not report stated that misappropriation was protection, Section 301 provides no basis preempted." 58 Werlin v. Readers Digest "nothing more than copyright protection for such an inquiry. "Even if Congress con­ Association, Inc., 59 goes even further than under another name," 63 a later Committee sidered protecting certain subject matter the above cases by preventing preemption report reached the opposite conclusion: and consciously and explicitly determined of state law protection of ideas whether or "Misappropriation is not necessarily syn­ that such subject matter should best be left not the ideas are embodied in a copyright­ onymous with copyright infringement, and unprotected, the language of Section 301 able work. Werlin held that the state quasi­ thus a cause of action labeled as misappro­ by itself would not require preemption." 52 contract claim was not preempted and that priation is not preempted if it is in fact Therefore, the crucial issue is whether the plaintiff was entitled to compensation for based neither on a right within the general items listed in Section 102(b) fall within the idea of her article. "Werlin's submis­ scope of copyright as specified by Section the subject matter of copyright. sion to RDA was both an article and an 106 nor on a right equivalent thereto ..."64 Abrams and Nimmer both subscribe to idea. To the extent it was an article, it en­ The doctrine of misappropriation is in­ the view that the items listed in Section joyed federal copyright protection; to the voked when a person imitates or uses a 102(b) are "works ofauthorship" as used to extent it was an idea, it enjoyed no federal work developed at the expense of another, describe the subject matter of copyright. copyright protection but limited state law thereby converting the other's investment. Section 102(b), as the codification of the protection." 60 The doctrine has been used to guard against idea-expression dichotomy, serves as a limi­ However, other courts have consistently unauthorized use of public domain mate­ tation on the protection extended by the treated facts, research and the like as. being rials. First established in International News 8-The Law Forum/Spring, 1986 Service v. Associated Press,65 the Court al­ a good will dilution theory, it arguably (a) On and after January 1, 1978, all legal or lowed state law protection of "hot news" should not survive preemption.71 Roy Ex­ equitable rights that are equivalent to any of the exclusive rights within the general scope through a claim ofunfair competition, even port Co. v. Columbia Broadcasting System, 72 of copyright as specified by section 106 in though the news was not copyrightable. upheld a state unfair competition claim on works of authorship that are fixed in a tangible The scope of the state law protection au­ the basis of the extra element of commer­ medium of expression and come within the subject matter of copyright as specified by sec­ thorized was limited, only lasting long cial immorality. "The fact that the basis tions 102 and 103, whether created before or enough for I.N.S. to retain the financial in­ for the finding of unfair competition may after that date and whether published or un­ centive to be the first to gather and dissem­ have partly overlapped the basis for the published, are governed exclusively by this ti­ inate the news. The Court carefully bal­ finding of statutory copyright infringe­ tle. Thereafter, no person is entitled to any such right or equivalent right in any such anced the copyright and first amendment ment is insufficient to find the unfair com­ work under the common law or statutes of any issues, and the case stands as an example of petition claim preempted where, as here, State. the benefits of allowing state protection of the law of unfair competition serves to (b) Nothing in this title annuls or limits any rights or remedies under the common law or matter excluded from copyright protec­ compliment, rather than conflict with, statutes of any State with respect to- tion under Section 102(b). federal law." 73 (1) subject matter that does not come within Misappropriation is generally agreed to the subject matter of copyright as specified by sections 102 and 103, including works of have these elements: (I) creation of plain­ Conclusion authorship not fixed in any tangible medium tiff's product through extensive time, la­ Nothing definitive about the present of expression; or bor, skill, and money; (2) defendant's use status of state idea protection can be said in (2) any cause of action arising from under­ of that product in competition with the light of the discrepant results reached in takings commenced before January 1, 1978; or plaintiff, thereby gaining special advantage the application of Section 301. However, a (3) activities violating legal or equitable since the defendant is not burdened with proper analysis of the preemption problem rights that are not equivalent to any of the the developmental expenses incurred by cannot be reached using Section 30 I prin­ exclusive rights within the general scope of copyright as specified by section 106. the plaintiff; and (3) commercial damage ciples alone. It is hard, ifnot impossible, to (c) With respect to sound recordings fixed be­ to the plaintiff. To the extent that the mis­ evaluate the proper scope of preemption fore February 15, 1972, any rights or remedies appropriation doctrine merely prevents under Section 30 I without determining under the common law or statutes of any state reproduction and distribution, the rights shall not be annulled or limited by this title the purposes and policy behind the copy­ until February 15, 2047. The preemptive pro­ being protected appear to be equivalent to right clause and the current Copyright Act. visions of subsection (a) shall apply to any those protected by Section 106. 66 However, The two inquiries suggested in Goldstein cause of action arising from undertakings com­ when direct competition exists, misappro­ should be required to determine if the sub­ menced on or after February 15, 2047. Not­ withstanding the provisions of section 303, no priation seemingly only protects "the lim­ ject matter is covered by the Copyright Act, sound recording fixed before February 15, ited right of a commercial enterprise to be and if not, whether it had been left unat­ 1972, shall be subject to copyright under this free from unfair competitive practices that tended or deliberately excluded from pro­ title before, on, or after February 15, 2047. (d) Nothing in this title annuls or limits any deprive it of a fair return on its work and tection by Congress. Limitations on state rights or remedies under any other Federal investment." 67 law protection should also be defined to statute. The grant of limited rights against the keep the states extending monopolies be­ 11 H.R. Rep. No. 1476, 94th Cong., 2nd Sess. 129 (1976). unfair acts of a competitor, not against the yond the public's interest, as well as some 12Id. at 130. public at large, would not appear to con­ durational limitations.74 However, upon l3U.S. CaNST. art. I, § 8. flict with federal policy. According to the review, state protection of ideas and the ex­ 14Id. House Report, however, misappropriation cluded subject matter of Section 102(b) 15 Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903). See also Abrams, Copyright, Mis­ seems to be preserved only to the extent it under the current Act has never been offen­ appropriation, and Preemption: Constitutional and protects against a pattern of unfair use by a sive to the policy of promoting progress and Statutory Limits of State Law Protection, 1983 competitor. 68 They reason that the element expanding the contributions to recorded Sup. Ct. Rev. 509, 510 (1984). of competition is almost always present in knowledge; rather, state protection oper­ 16U.S. CaNST. art. I, § 8. 17 Goldstein, 412 U.S. at 561. Note that the 1976 infringement situations, and really adds ates to relieve injustices that would be per­ Copyright Act uses the word "works" in § 102 nothing further to the rights contained in mitted if such protection were preempted. rather than the constitutional term "Writings" to Concurrent state-federal protection is in make it clear that the categories listed in § 102 are Section 106, whereas a pattern ofunfair use not exhaustive of the constitutional scope of the by a competitor would be non-equivalent. the best interests of the public, and should copyright-patent clause. Judicial interpretations vary. The Court not be dismissed without a thorough anal­ 18 Twentieth Century Music Corp. v. Aiken, 422 U.S. in Warner Bros. v. American Broadcasting ysis of the policies of the copyright clause 151, 156 (1973); Berlin v. E.G. Publications, Inc. 69 329 F.2d 541, 543-44 (2nd Cir.), cert. denied,379 Companies stated that the New York un­ and the effects of denying such protection U.S. 822 (1964). fair competition law was preempted to the in a capitalistic, reward-motivated society. 19_ U.S. _, 105 S.Ct. 2218 (1985). extent that the claim relied on the misap­ 20Sony Corp. v. Universal City Studios, Inc., 464 propriation branch of the law, citing Dur­ Notes U.S. 417, 429 (1984). 11 7 U.S.C. § 102(b)(1982). SeeMazerv. Stein, 347 2117U.S.C. § 102(b) (1982). ham Industries, Inc. v. Tomy COrp.,70 but U.S. 201, 217 (1954); Baker v. Selden, 101 U.S. 22 Nation, 105 S.Ct. at 2242 (Brennan, J-, dissent­ to the extent that the claim relied on "pass­ 99, 102-103 (1879). ing). ing off," it was not asserting rights equiva­ 2Pub. L. No. 94-553, 90 Stat. 2541 (1976) (Codi­ 23 Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). fiedat 17U.S.C. §§ 101-810(1982)). The law be­ 24Capitol Records, Inc. v. Mercury Records Corp., lent to those protected by copyright and came effective on January 1, 1978. 17 U.S.C. 221 F.2d 657, 664-68 (2nd Cir_ 1955) (Hand, J-, therefore would not be preempted. "Pass­ § 302(a) (1982). dissenting). ing off" generally requires a showing of 317 U_S.C. § 102(b) (1982). 25The supremacy clause provides, "This Constitu­ 4376 U.S. 225 (1964). tion and the laws of the United States ... shall be consumer deception and appropriation of 5376 U.S. 234 (1964). the Supreme law of the land; and the judges in good will. As long as a strong showing 6412 U.S. 546 (1973). every state shall be bound thereby, anything in of deception is made, the element of"pass­ 7416 U.S. 470 (1974). the Constitution or laws of any state to the con­ ing off" actually does protect a right dif­ "Goldstein, 412 U.S. at 559. trary notwithstanding." U.S. CaNST. art. VI, 9 Supra note 2, at § 301 (1982). c1.2. See Hines v. Davidowitz, 312 U.S. 52, 67 ferent in kind from the Section 106 rights. 10 17 U.S.C. § 301 (1982) reads in full: (1941) (state law obstructing Congress' purpose is However, ifthe claim was based mainly on § 301. Preemption with respect to other laws preempted). Spring, 1986rrhe Law Forum-9 26 Goldstein, Preempted State Doctrines, Involuntary denied, 449 U.S. 841 (1980); Rosemont Enter­ Transfers, and Compulsory Licenses: Testing the prises, Inc., v. Random House, Inc., 366 F.2d 303 Limits of Copyright, 24 U.C.L.A. L. Rev. 1107, (2nd Cir. 1966), cert. denied, 385 U.S. 1009 1108 (1977). (1967). But see Toksvig v. Bruce Publishing Co., 27 Id. at 1108, n. 5. 181 F.2d 664 (7th Cir. 1950) (Fruits of original 28Goldstein, 412 U.S. 546; Kewanee Co. v. Bricron research and facts are copyrightable). Oil Corp., 416 U.S. 470 (1974); see generally, 62U.S.C. § 106 (1982) provides: Goldstein, The Competitive Mandate: From Sears § 106. Exclusive rights in copyrighted works to Lear, 59 Cal. L. Rev. 873 (1971). [T]he owner of copyright under this title has 29 See Abrams, supra note 15, at 519; Sears, Roebuck the exclusive rights to do and to authorize any & Co., 376 U.S. at 225 (1964); Compco Corp. v. of the following: Day-Brite Lighting, Inc., 376 U.S. 234 (1964). (1) to reproduce the copyrighted work in 30 Goldstein, supra note 26, at 11 09. copies or phonorecords; 31 376 U.S. 225 (1964). (2) to prepare derivative works based upon 32 376 U.S. 234 (1964). the copyrighted work; 33 Id. at 237. (3) to distribute copies or phonorecords of 34 Abrams, supra note 15, at 524. the copyrighted work to the public by sale or 35See, e.g., Capitol Records, Inc. v. Spies, 130 Ill. other transfer of ownership, or by rental, App.2d 429,264 N.E.2d 874 (1970). lease or lending; 36 412 U.S. 546 (1973). (4) ... to perform the copyrighted work pub­ 37 416 U.S. 470 (1974). licly; and 38 312 U.S. 52,67 (1941), cited in Goldstein, 412 (5) ... to display the copyrighted work pub­ U.S. 561. licly. 39 Kewanee Oil Co., 416 U.S. at 560,570. 63 H.R. Rep. No. 2237, 89th Congo 2d Sess. 129 40 ld. at 559. (1966). 41 Abrams, supra note 15. 64H.R. Rep. No. 1476, 94th Congo 2d Sess. 132 42Goldstein, supra note 26, at 1123. (1976). 43 Kewanee Oil Co., 416 U.S. 470. 65 248 U.S. 215 (1918). 44ld. at 479. 66See, e.g., Durham Industries, Inc. v. Tomy Corp., 45 Morseburgv. Balyon, 621 F.2d 972,978 (9th Cir.), 630 F.2d 905, 918-19 (2nd Cir. 1980); Suid v. cert. denied, 449 U.S. 983 (1980). Newsweek Magazine, 503 F. Supp. 146 (D.D.C. 46 17 U.S.c. § 301 (1982). For full text, see supra 1980). note 8. 67 Shipley, Protecting Research: Copyright, Common­ 47H.R. Rep. No. 1476, 9th Cong., 2nd Sess. 131 Law Alternatives, and Federal Preemption, 63 (1976). N.C.L. Rev. 125 at 161 (1984). 48 The deleted provision of§ 301(b) read: 68 H.R. Rep., supra note 43, at 132. (b) Nothing in this title annuls or limits any 69 720 F.2d 231 (2nd Cir. 1983). rights or remedies under the common law or 70 630 F .2d 905 (2nd Cir. 1980). statutes of any State with respect to: 71 Goldstein, supra note 26, at 1116. (1) subject matter that does not come within 72 503 F. Supp. 1137 (1980). the subject matter of copyright as specified by 731d. at 1152. sections 102 and 103, including works of au­ 74 Abrams, supra note 15, at 576-77. thorship not fixed in any tangible medium of expression; or (2) ... (3) activities violating legal or equitable rights Laura Anne Moeller is a recent gradu­ that are not equivalent to any of the exclusive rights within the general scope of copyright ate of the University of Baltimore School as specified by section 106, including rights of Law. against misappropriation not equivalent to any of such exclusive rights, breaches of con­ tract, breaches of trust, trespass, conversion, More people invasion of privacy, defamation, and decep­ tive trade practices such as passing off and have survived false representation; ... 49 122 CONGo REC. 31, 977, 32, 015 (1976). For a cancer than full analysis of the legislative history surround­ ing this deletion and section 30 I in general, see now live in Abrams, supra note 15, at 537-50; 1 Nimmer on Put your Copyright 1.01[B] at 1-14-16. 50Supra note 2, § 301(a). the City of 51 1 Nimmer on Copyrights 1.01[B] at 1-22. money where 52 Abrams, supra note 15, at 561. Los Angeles. "Abrams, supra note 15, at 561-65; 3 Nimmer on your Heart is. Copyright 16.04[C]. Nimmer also suggests that even were ideas to escape preemption under § 301, Weare state or federal protection of ideas would consti­ tute a violation of the first amendment guarantee WInnIng. offreedom of speech. § l.OI[B] at 1-25,26. 54 Goldstein, supra note 26. 55478 F. Supp. 361 (E.D. Pa. 1979). Please 56ld. at 367. t. support the 57 591 F. Supp. 726 (1983). American 58 Id. at 739. AMERICAN 59 528 F. Supp. 451 (S.D.N.Y. 1981). Heart 60 528 F. Supp. at 467; Cf Harper & Row Publish­ \?CANCERI AsSOCiation ers, Inc. v. Nation Enterprises, 105 S.Ct. 2218, V 'SOCIE1Y$ 2224 (1985) (The law is currently unsettled re­ garding the ways in which uncopyrightable ele­ WERE FIGHTING FOR YOUR LIFE ments combine with the author's original contri­ This space contributed as a public serVIce butions to form protected expression). 61Suid v. Newsweek Magazine, 503 F. Supp. 146, 149 (D.D.C. 1980); See also, Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2nd Cir.), cert. 10-The Law Forum/Spring, 1986