What the Copyright Act Kills: Section 301 Preemption and the State-Law Claims That Survive
By Casey Scott McKay ·
A plaintiff with a copying problem instinctively pleads five state-law claims alongside the copyright count, and Section 301 removes most of them. This article works the two-prong test - whether the work falls within the subject matter of copyright, and whether the state right is equivalent to any of the exclusive rights - and the extra element analysis that decides the second prong. It explains why conversion, unfair competition, and misappropriation usually fall while contract, breach of confidence, and trade secret usually survive. It covers the idea submission cases that keep implied contract claims alive, the right of publicity split that turns on whether the claim targets a persona or a fixed work, and the separate constitutional preemption doctrine that operates independently of the statute. It closes with how to plead around it and how to attack a pleading that tries.
IP and Technology > Copyright | Article | Published 21 March 2026 - Updated 11 May 2026 | Casey Scott McKay - marksy.us
Summary. A plaintiff with a copying problem instinctively pleads five state-law claims alongside the copyright count, and Section 301 removes most of them. This article works the two-prong test — whether the work falls within the subject matter of copyright, and whether the state right is equivalent to any of the exclusive rights — and the extra element analysis that decides the second prong. It explains why conversion, unfair competition, and misappropriation usually fall while contract, breach of confidence, and trade secret usually survive. It covers the idea submission cases that keep implied contract claims alive, the right of publicity split that turns on whether the claim targets a persona or a fixed work, and the separate constitutional preemption doctrine that operates independently of the statute. It closes with how to plead around it and how to attack a pleading that tries.
Keywords: section 301 preemption · subject matter prong · general scope prong · equivalent rights · extra element test · unfair competition preempted · conversion preempted · unjust enrichment · implied in fact contract · Desny claims · idea submission · ProCD · contract not preempted · hot news survival · right of publicity preemption · Laws v Sony · Toney v L'Oreal · trade secret survives · conflict preemption · Dastar limit
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