Camden, NJ asked in Copyright for New Jersey

Q: Are there any state-specific laws about copyright, or is it all federal?

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2 Lawyer Answers
Will Blackton
Will Blackton
Answered
  • Intellectual Property Lawyer
  • Raleigh, NC

A: Federal copyright law preempts all state copyright law (so long as the state law protects rights equivalent to the exclusive rights protected by federal copyright law). That means if there is a federal copyright law applicable to a given situation, it doesn't matter if there is also a state law on point.

There are, however, some state-specific laws about copyright. These state laws fill in the gaps in federal copyright law. Some of these gaps identified by copyright lawyers concern pre-1972 sound recordings, which are not within the subject matter of federal copyright law. Notably, New York and California say that state copyright law supplies performers and record labels with the public performance rights currently missing from federal copyright law. Also, an impromptu unrecorded speech or spoken word performance, which is not written down would not receive federal copyright protection (work must be fixed in a tangible medium for federal copyright protection). Some states laws may afford a measure of protection for these performances.

Will Blackton
Will Blackton
Answered
  • Intellectual Property Lawyer
  • Raleigh, NC

A: UPDATE to my previous answer: February 16, 2017 - The United States Court of Appeals for the Second Circuit asked (certified questions to) the New York Court of Appeals to determine if there is a right of public performance for creators of pre-1972 sound recordings under New York law and, if so, what is the nature and scope of that right?

The Court of Appeals accepted certification and responded that New York common law does not recognize a right of public

performance for creators of pre-1972 sound recordings.

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