Intellectual Property Boston College Law School April 22, 2009 Preemption

State Intellectual Property Laws Different areas –Trade Secret –Misappropriation –Contract –Publicity –Moral Rights –Trespass Preemption

State Moral Rights Integrity Attribution Resale Royalties

Preemption Preemption Subjects –Patent –Copyright –Publicity –Trademark

Copyright Preemption Two types of preemption –Constitutional or conflict preemption Source: Supremacy Clause of U.S. Const. Where conflict between federal and state law –Statutory preemption Source: 17 U.S.C. 301 Where state law covers works within subject matter of copyright and grants equivalent rights

Statutory Preemption State law preempted where: –(1) Applies to work that falls within the subject matter of copyright law; and Can still be within subject matter, but unprotected E.g. facts from a copyrighted work –(2) Grants rights that are equivalent to the exclusive rights granted under copyright law. Equivalent in kind, not necessarily scope E.g. anti-copy provision, but only for three years

Administrative Next class –No assignment