Copyright Preemption Under Section 301: When Federal Law Wipes Out Your State Law Claim

In February 1989 a Michigan promoter named Alvin Williams and his associates signed a series of music contracts with a young singer-songwriter who would become known as Kid Rock. About ten years after Kid Rock told them, in writing, that he was done with them and the songs were his, the Williams group sued in Michigan state court. The complaint spoke the language of state law: contract, unjust enrichment, misrepresentation, conversion. Michigan's six-year limit was already a problem, and nothing in the complaint mentioned federal law.

The case was removed anyway. The federal court held that most of the claims were really copyright claims wearing state law clothes, applied the Copyright Act's three-year limitations period, and ended them. The Sixth Circuit affirmed in Ritchie v. Williams, 395 F.3d 283 (6th Cir. 2005). The plaintiffs had not pleaded a word of copyright law, and copyright law decided their case anyway.

That is what preemption under 17 U.S.C. § 301 does. It catches writers who thought they had a handshake deal, data companies who thought their terms of service were a fence, musicians who thought their voices were their own, and lawyers who assumed that a contract claim could not be removed. Section 301 is short. The doctrine built on it is not, and the outcomes turn on distinctions a client would never guess.

The short answer

• Section 301 has two parts. A state law right is preempted if the work falls within the subject matter of copyright (the types of works described in 17 U.S.C. § 102 and § 103) and the right is equivalent to one of the exclusive rights in 17 U.S.C. § 106. Both must be true.
• Preemption reaches farther than protection. Ideas, facts, and unoriginal material inside a fixed work are within the subject matter of copyright for preemption purposes, even though copyright will not protect them. Most circuits agree. The Eleventh Circuit does not.
• The fight is usually over "equivalent." Courts ask whether the state claim has an extra element that changes the nature of the claim. Intent, knowledge, bad faith, and commercial use usually do not count. A real promise to pay, a duty of confidence, a fiduciary duty, deception that procures the taking, and possession of a physical object usually do.
• Contract claims split the courts. The Seventh Circuit says contracts are not rights against the world. The Sixth and Second Circuits look at what the promise was, and a bare promise not to copy can be preempted. The Solicitor General told the Supreme Court in 2023 that preempting every promise not to copy would sweep too broadly, but that Genius's browsewrap terms were not a strong case for review, and the Court denied certiorari.
• Idea submission claims survive if pleaded as true contracts. An implied promise to pay for use survives in the Second, Sixth, and Ninth Circuits. Unjust enrichment on the same facts generally does not.
• Publicity claims depend on what was used and how. Using a copyrighted recording or photograph as itself is preempted. Using a person's identity to sell something else, or imitating a voice, generally is not.
• Scraping is unsettled. Two judges in the same district have reached different results on terms of service claims against scrapers. The live distinction is between copying data and how the scraper got to it.
• Preemption can move the case. Most circuits to decide the question treat Section 301 as complete preemption, so a defendant can remove a complaint that pleads only state law. The Seventh Circuit has voiced doubt, and the Supreme Court has not spoken.
• The consequences are concrete. A recharacterized claim can pick up the three-year limitations period and fee exposure under 17 U.S.C. § 505. A plaintiff who does not own the copyright may have no remedy left at all.

Why Congress wrote it this way

Before 1978 the United States ran a two-track system. State common law protected unpublished works, and federal statute protected published ones. A work could move between tracks at the moment of publication, and the moment of publication was often a lawsuit in itself.

The Supreme Court had been working at the edges of the problem for a decade. In Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225 (1964) and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234 (1964), the Court held that a state could not use unfair competition law to stop the copying of a lamp design that federal patent law left free. An unpatentable article, the Court said in Sears, "is in the public domain and may be made and sold by whoever chooses to do so." Nine years later Goldstein v. California, 412 U.S. 546 (1973) let California protect sound recordings, because Congress had then left that category unattended. The Court added the sentence that still drives the conflict cases: a conflict would develop "if a State attempted to protect that which Congress intended to be free from restraint." And Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974) held that state trade secret law survives federal patent law.

Congress answered in the Copyright Act of 1976 with an express clause. Section 301(a) provides that from January 1, 1978, "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103" are governed exclusively by Title 17. The House Report, quoted in Rosciszewski v. Arete Associates, Inc., 1 F.3d 225 (4th Cir. 1993), said the declaration was meant to be "stated in the clearest and most unequivocal language possible."

The logic is that a federal copyright system consists of two decisions, not one. Congress decided what to protect, and it decided what to leave free. A state law that protects what Congress left free undoes the second decision as surely as a state law that lets people copy what Congress protected undoes the first. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989), a patent case about boat hulls, states the general principle, and the Second Circuit's copyright cases build on it.

Section 301 has its own limits. Subsection (b) saves state rights in subject matter outside sections 102 and 103, "including works of authorship not fixed in any tangible medium of expression," and in activities violating rights that are not equivalent to section 106 rights. Subsection (b)(4) saves landmark, historic preservation, zoning, and building code rules for architectural works. Subsection (c), rewritten by the Classics Protection and Access Act, applies subsection (a) to pre-1972 sound recordings for activities commenced on and after that Act's enactment, with a carve-out for certain nonsubscription broadcast questions. Subsection (d) says nothing in Title 17 limits rights under any other federal statute, which is why a Lanham Act § 43(a), 15 U.S.C. § 1125(a) claim or a Defend Trade Secrets Act claim under 18 U.S.C. § 1836 is not preempted by Section 301, whatever other limits apply. Subsection (f) adds a parallel rule for moral rights in works of visual art under 17 U.S.C. § 106A.

Step one: subject matter, and why the shadow is bigger than the wing

The first question looks at the work, and it asks about type rather than merit. Is this a literary work, a musical work, a sound recording, a motion picture, or another category of work of authorship? Is it fixed? If so, the first prong is met, even if the particular material could never be copyrighted.

The phrase everyone quotes comes from United States ex rel. Berge v. Board of Trustees of the University of Alabama, 104 F.3d 1453 (4th Cir. 1997): "the shadow actually cast by the Act's preemption is notably broader than the wing of its protection." Plaintiffs find this maddening at first. Their whole theory is often that the thing taken was an idea, or a fact, or a compilation too thin for copyright, so copyright has nothing to say about it. The courts answer that this is exactly why copyright has something to say. Congress chose to leave that material free.

The cases line up this way.

• Harper & Row, Publishers, Inc. v. Nation Enterprises, 723 F.2d 195 (2d Cir. 1983): President Ford's memoirs contained uncopyrightable facts, and those facts did not take the book outside the subject matter of copyright. If they did, the court said, states "would be free to expand the perimeters of copyright protection to their own liking."
• ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996): A telephone database too unoriginal for copyright under Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) was still within the subject matter of copyright.
• National Basketball Ass'n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997): The Second Circuit rejected what the district court had called "partial preemption," under which facts from a game could be separated from the copyrighted broadcast. It is often difficult or impossible, the court said, to separate the fixed work from the underlying facts.
• Wrench LLC v. Taco Bell Corp., 256 F.3d 446 (6th Cir. 2001): The creators of the Psycho Chihuahua character pitched Taco Bell with storyboards, scripts, and drawings. Their ideas fell within the subject matter even though some were conveyed orally, because the court would not separate the intangible ideas from the tangible expressions.
• Spear Marketing, Inc. v. BancorpSouth Bank, 791 F.3d 586 (5th Cir. 2015): After surveying what it called "a clear and lopsided split," the Fifth Circuit held that state claims based on ideas fixed in tangible media are preempted, and it applied that rule to the categories of input and output data visible on a software user interface.
• Ultraflo Corp. v. Pelican Tank Parts, Inc., 845 F.3d 652 (5th Cir. 2017): A valve design drawn on paper remained within the subject matter when the plaintiff complained that a competitor used the drawings to build physical valves. Preemption, the court said, prohibits state interference with Congress's decision not to protect just as much as it protects a decision to protect.
• ML Genius Holdings LLC v. Google LLC, No. 20-3113 (2d Cir. Mar. 10, 2022) (summary order): Genius argued that its lyric transcriptions lacked originality. Whatever the merits of that, the Second Circuit said, it did not defeat preemption.

The outlier is the Eleventh Circuit. In Dunlap v. G&L Holding Group, Inc., 381 F.3d 1285 (11th Cir. 2004), a consultant claimed conversion of his idea for a bank. The court held that ideas are "substantively and categorically excluded from the subject matter of copyright," so a conversion claim for an idea was not preempted, even an idea expressed in a tangible medium. It reversed the judgment for lack of jurisdiction and sent the case back toward state court. In the Eleventh Circuit, a plaintiff with an idea claim starts from a stronger position, and a defendant's removal is correspondingly weaker.

The two real escape routes at step one

Fixation is one. Section 301(b)(1) expressly leaves state law free as to unfixed works, and Montz v. Pilgrim Films & Television, Inc., 649 F.3d 975 (9th Cir. 2011) (en banc) says so vividly: ideas "that are still purely airborne" are not within the subject matter of copyright. An idea told over coffee and never written down is outside Section 301. But once an idea has been written down or otherwise recorded, the en banc court said, it is within the first prong. Live events can be a trap here, because 17 U.S.C. § 101 treats a transmission as fixed if a fixation is being made simultaneously. Baltimore Orioles, Inc. v. Major League Baseball Players Ass'n, 805 F.2d 663 (7th Cir. 1986) and NBA both show that a performance captured on tape is treated as fixed for preemption, and rights in the performance fall with it.

Being a different kind of thing is the other. A person's identity is not a work of authorship, which is the basis for Toney v. L'Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2005) and Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001) and is discussed below. Effort can be different too. In Del Madera Properties v. Rhodes & Gardner, Inc., 820 F.2d 973 (9th Cir. 1987), the Ninth Circuit split the plaintiff's "effort": effort spent creating a tentative subdivision map was within copyright, while effort spent obtaining subdivision approval was not.

A worked example at step one

Suppose Marisol Quant, a marketing consultant in Boise, tells the owner of a regional grocery chain over lunch that he should run a "Know Your Farmer" campaign with a QR code on each produce bin linking to a short film about the grower. Nothing is on paper. Six months later the chain launches it. Her idea was never fixed, at least by her, so Section 301(b)(1) keeps state law available as to that conversation, and a claim on the lunch does not fall within the subject matter of copyright.

Now change one fact. After lunch she emails a two-page concept memo. The memo is a literary work, and the idea is now embodied in it. Under Montz, Forest Park, and Spear, the first prong is met, even though copyright would not protect the concept itself. Her case now depends entirely on step two. That is why many defense lawyers ask first for the deck, and why plaintiffs' counsel should know what was on paper before drafting a complaint that says it was all oral.

Step two: equivalence and the extra element

The second question looks at the right. The working test comes from Harper & Row, Publishers, Inc. v. Nation Enterprises, 723 F.2d 195 (2d Cir. 1983) and Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992). A state right is equivalent if it may be abridged by an act that would, in and of itself, infringe one of the exclusive rights: reproduction, adaptation, distribution, public performance, or public display. But if an extra element is required instead of or in addition to those acts, there is no preemption, provided that the element changes the nature of the action so that it is qualitatively different from infringement.

That last clause does the work. In Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004), the Second Circuit said "we take a restrictive view of what extra elements transform an otherwise equivalent claim." The formula that recurs is that some elements alter a claim's scope but not its nature. Altai said so about awareness and intent. Briarpatch said so about enrichment. Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006) said so about commercial use under California Civil Code § 3344. And OpenRisk, LLC v. MicroStrategy Services Corp., 876 F.3d 518 (4th Cir. 2017) said so about Virginia's computer embezzlement theory, refusing to treat "entrustment" as enough. In ML Genius and In re Jackson the Second Circuit went further and described the inquiry as holistic rather than mechanical, looking at what the plaintiff seeks to protect, the theories on which it is thought to be protected, and the rights sought to be enforced.

Courts also look past the elements on paper to what was actually pleaded. GlobeRanger Corp. v. Software AG United States of America, Inc., 836 F.3d 477 (5th Cir. 2016) put it directly: equivalency requires looking at the actual alleged misconduct and not merely the elements of the state cause of action. A claim can therefore survive in one case and fail in the next under the same state law, and a complaint's verbs matter. If the complaint says copied, reproduced, republished, and displayed, the court will notice.

The Sixth Circuit knows the test has critics. A footnote in Ritchie v. Williams, 395 F.3d 283 (6th Cir. 2005) collected commentary that it "does not provide any real guidance to the courts" and has "proved circular in practice." That candor is useful when a brief needs to explain why a label cannot control.

Treat this table as a starting point. State elements differ, and pleaded facts matter more.

The contract split, read closely

Contract claims are where Section 301 causes the most surprise, because lawyers assume a contract can never be preempted and because most courts mostly agree.

ProCD: rights against the world

ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) is the classic. Matthew Zeidenberg bought a consumer CD-ROM telephone database, ignored the shrinkwrap license limiting it to non-commercial use, and put the data on the web. Judge Easterbrook held the license enforceable and not preempted. "A copyright is a right against the world," he wrote. "Contracts, by contrast, generally affect only their parties; strangers may do as they please, so contracts do not create 'exclusive rights.'" He offered a parade of everyday deals that a contrary rule would undo: a video rental agreement, a law student's educational database subscription, a promise to pay a firm for finding directories. He tied it to Aronson v. Quick Point Pencil Co., 440 U.S. 257 (1979), which enforced a royalty on an unpatented product, and to American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995), which read a differently worded preemption clause to leave private bargains alone.

The opinion also has a hedge that gets less attention. "[W]e think it prudent to refrain from adopting a rule that anything with the label 'contract' is necessarily outside the preemption clause," the court said. The variations are too numerous to foresee.

National Car Rental System, Inc. v. Computer Associates International, Inc., 991 F.2d 426 (8th Cir. 1993) (a license limited to internal use, breached by processing third parties' data), Bowers v. Baystate Technologies, Inc., 320 F.3d 1317 (Fed. Cir. 2003) (a shrinkwrap ban on reverse engineering), Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079 (9th Cir. 2005) (a software license's use limitation enforced through tortious interference), and Lipscher v. LRP Publications, Inc., 266 F.3d 1305 (11th Cir. 2001) (a two-party database agreement) all go the same general way.

Wrench: look at the promise

Wrench LLC v. Taco Bell Corp., 256 F.3d 446 (6th Cir. 2001) gives the framework most courts now use. Judge Graham, sitting by designation, held that an implied-in-fact promise to pay for use of the Psycho Chihuahua concept was not preempted. "The extra element is the promise to pay." It is not the use of the work alone, the court said, but the failure to pay for it that violates the contract, and the right to be paid for use is not one of the section 106 rights. Remedies confirmed the difference, since Michigan contract law offered the reasonable value of the work.

But the panel refused to adopt the proposition that every contract survives. "If the promise amounts only to a promise to refrain from reproducing, performing, distributing or displaying the work, then the contract claim is preempted."

The Second Circuit's turn

Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424 (2d Cir. 2012) is the Second Circuit's main statement. Forest Park Pictures and its co-plaintiffs, who included the actor Hayden Christensen, pitched "Housecall," a show about a doctor expelled from the medical community for treating patients who could not pay, who becomes a concierge doctor to the rich in Malibu. Roughly four years later USA Network aired "Royal Pains," about a doctor expelled for treating patients who could not pay, who becomes a concierge doctor to the rich in the Hamptons. The court found the first prong met and the second not. It listed three differences between such a contract claim and copyright: the Act gives no express right to be paid for use, a contract plaintiff must prove mutual assent and consideration, and a contract binds only the counterparty.

Then came the sentence the later cases turned on. "[W]e need not address whether preemption is precluded whenever there is a contract claim, or only when the contract claim includes a promise to pay." A footnote added that a promise to pay might not be enough where contracts of adhesion create "a de facto monopoly at odds with federal copyright policy," citing Arthur Miller's 2006 Harvard Law Review article on ideas.

The court then filled part of that gap. In Universal Instruments Corp. v. Micro Systems Engineering, Inc., 924 F.3d 32 (2d Cir. 2019), a licensor claimed that a licensee's modification of source code breached an agreement, where the modification ban was only implied by the license's silence. That claim sought to vindicate a section 106 right, the court said, and contractual privity "does nothing to change the fact." It relied on a line of cases treating use beyond a license's scope as infringement rather than breach.

Three years later came the summary order in ML Genius Holdings LLC v. Google LLC, No. 20-3113 (2d Cir. Mar. 10, 2022) (summary order). Genius publishes user-contributed lyric transcriptions, without owning the songs. It alleged that LyricFind copied its transcriptions and licensed them to Google, in breach of website terms barring commercial copying. Genius sued in New York state court. The defendants removed. The district court denied remand and dismissed. The Second Circuit affirmed, rejecting what it called a per se rule that all contract claims escape preemption. The order is expressly limited to "the specific facts Genius pleaded in its complaint" and has no precedential effect, but it is the Second Circuit's fullest treatment of website terms.

What the Solicitor General said

Genius petitioned for certiorari. The Court asked for the government's views, and the Brief for the United States as Amicus Curiae, ML Genius Holdings LLC v. Google LLC, No. 22-121 is one of the more useful documents in this area. It recommended denial, and the Court denied review on June 26, 2023 (Supreme Court docket, No. 22-121). The brief makes three points worth a practitioner's time.

First, a categorical rule that all contract promises not to copy are preempted "would sweep too broadly." Section 301(a) "ordinarily does not preempt breach-of-contract claims premised on agreed-upon exchanges of access to works within the scope of copyright (or other similar benefits) for commitments not to use the accessed material in specified ways." It gave a video rental store's no-copying contract and a merger partner's confidentiality agreement as examples.

Second, it faulted the Second Circuit's analysis for attaching "inadequate weight to the difference between a party's voluntary promise and a prescriptive state-law command," citing Wolens.

Third, it thought the case a poor vehicle because a browsewrap agreement (terms posted behind a link at the bottom of a page, with no click required) is "quite different from the paradigmatic bargained-for exchange." In substance, it said, Genius claimed a right to stop commercial copying by everyone who visited. It also acknowledged the disagreement among the courts of appeals on the "right against the world" reasoning, comparing ProCD, Bowers, and Lipscher with Universal Instruments and Wrench.

How to think about the split today

The practical reading is a spectrum rather than two camps.

At one end are negotiated contracts with promises to pay, confidentiality obligations, field-of-use limits, and affirmative duties. Those survive nearly everywhere. Affirmative duties are the cleanest. In open source disputes, for example, a court may well see an obligation to deliver something as the opposite of an exclusive right (for the licensing background, see Open Source Licensing Landmines in Enterprise Software Development). Software Freedom Conservancy, Inc. v. Vizio, Inc., No. 8:21-cv-01943-JLS-KES (C.D. Cal. May 13, 2022), remanded a suit by a claimed third-party beneficiary of the GPL seeking source code from a TV maker. There is no right to receive source code under the Copyright Act, Judge Staton reasoned, and the claimed right looks like "the very opposite" of the exclusive rights.

In the middle are negotiated bans on copying, where the only breach is copying the very work the plaintiff owns. Here the circuit matters. ProCD and its followers point one way. Wrench, Universal Instruments, and Canal+ Image UK Ltd. v. Lutvak, 773 F. Supp. 2d 419 (S.D.N.Y. 2011) point the other, and Canal+ is the source of the observation that treating the promise itself as the saving element gives "mere lip service" to the inquiry into what the plaintiff is really protecting.

At the far end are unilateral terms, posted to the world, used to stop copying of material the plaintiff does not own. These are the most exposed, and Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008) is a reminder from another direction that license conditions can themselves be enforced through copyright.

Idea submission: Desny and its descendants

Hollywood has a local rule on ideas that has become everyone's rule. In Desny v. Wilder, 46 Cal. 2d 715 (1956), a writer called Billy Wilder's office and pitched a film based on the life of Floyd Collins, who was trapped in a cave. Wilder's secretary took it down. Wilder later made Ace in the Hole. The California Supreme Court held that a promise to pay can be implied from "the circumstances preceding and attending disclosure, together with the conduct of the offeree acting with knowledge of the circumstances."

Section 301 threatened to end this. Idea cases began to be removed, and federal judges in Los Angeles held them preempted, as Montz v. Pilgrim Films & Television, Inc., 649 F.3d 975 (9th Cir. 2011) (en banc) recounts. Grosso v. Miramax Film Corp., 383 F.3d 965 (9th Cir. 2004), amended on denial of rehearing at 400 F.3d 658, stopped that trend. Jeff Grosso claimed the poker film Rounders took from his screenplay The Shell Game. His copyright claim failed for lack of substantial similarity, since the shared dialogue was common poker jargon, but the implied contract claim survived. The bilateral expectation of compensation was the extra element missing from the unjust enrichment claim in Del Madera.

The en banc court in Montz v. Pilgrim Films & Television, Inc., 649 F.3d 975 (9th Cir. 2011) (en banc) ended the argument in the Ninth Circuit. Parapsychologist Larry Montz and publicist Daena Smoller alleged they pitched a show following paranormal investigators to NBC and others. The studios passed, and NBC later partnered with others on Ghost Hunters. A panel had found preemption. The en banc court reversed, holding that "copyright law does not preempt a contract claim where plaintiff alleges a bilateral expectation that he would be compensated for use of the idea." It saw no meaningful difference between payment and a partnership interest in the proceeds. It also held the breach of confidence claim not preempted, because the duty of trust is its own extra element. The Woody Allen line about show business being worse than dog-eat-dog is in there too, which is not something you can say about most en banc opinions.

Judge O'Scannlain's dissent is worth reading. Montz alleged he retained his rights and that the defendants promised not to use his ideas without consent. That, the dissent said, is a claim about authorizing use, which is the section 106 right. It is the strongest statement of the Wrench limit applied to pitches, and defense counsel should read every idea complaint looking for that structure.

Three drafting lessons follow. The complaint should allege a real offer, a condition of payment, acceptance with knowledge of the condition, and use. It should allege the industry custom that gives the condition content. Forest Park accepted allegations that writer-creators pitch to sell ideas for compensation and that it was standard in the entertainment industry to pitch with an expectation of compensation on use. And it should avoid resting on a bare promise not to use. Choice of law may matter too, since Forest Park applied California law only after a center-of-gravity analysis, noting New York law on open price terms was unclear.

Suppose a veteran staff writer named Hollis Tran emails a one-page series concept to a streaming executive, attends a meeting set "to hear the pitch," and two years later sees a very similar series. If her complaint alleges she pitched in order to sell and everyone knew payment would follow use, she has a Montz and Forest Park claim. If it alleges unjust enrichment only, or alleges only that the executive agreed "not to use my concept without consent," she has handed the defense its best argument. Same facts. Different claims.

For how similarity is litigated once a copyright count is in the case, see Proving Copyright Infringement: Access, Substantial Similarity, and the Tests Courts Actually Use.

Misappropriation and hot news

General misappropriation is close to the textbook case of preemption. In Ultraflo Corp. v. Pelican Tank Parts, Inc., 845 F.3d 652 (5th Cir. 2017) and Alcatel USA, Inc. v. DGI Technologies, Inc., 166 F.3d 772 (5th Cir. 1999), Texas unfair competition by misappropriation fell, with Alcatel reasoning that time, labor, skill, and money are part of what copyright already contemplates. In Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (9th Cir. 1998), a Section 17200 claim that Beavis and Butt-head replicated the plaintiff's work was preempted as a disguised infringement claim. The bad faith argument has mostly failed too, with one circuit-level exception. In SCO Group, Inc. v. International Business Machines Corp., 879 F.3d 1062 (10th Cir. 2018), the Tenth Circuit held a New York misappropriation claim not preempted because New York requires bad faith that is more than scienter. ML Genius rejected that reading of New York law as a general rule, noting that concealing a copying after the fact is not obtaining the material through fraud or deception. A plaintiff in New York state or federal court should plead deception in the acquisition, not afterward.

The surviving exception has a century of history. In International News Service v. Associated Press, 248 U.S. 215 (1918), International News Service lifted facts from Associated Press bulletins and from East Coast newspapers and sold them to West Coast papers before the AP's own clients could publish. The Court, sitting as a federal common law court before Erie, called this misappropriation. The 1976 House Report noted that state law should have flexibility to protect "hot" news against a consistent pattern of appropriation by a competitor.

National Basketball Ass'n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997) fixed the modern test. Motorola's SportsTrax pager showed NBA game scores updated every two to three minutes, fed by reporters watching games on television. The Second Circuit vacated the injunction. A narrow hot news claim survives, it held, only where (1) a plaintiff generates or gathers information at a cost, (2) the information is time-sensitive, (3) the defendant's use is free riding, (4) the defendant is in direct competition, and (5) the free riding would so reduce the incentive to produce the product that its existence or quality would be substantially threatened. Motorola and STATS paid their own reporters, so they were not free riding on anything. The NBA's games were not at risk of disappearing.

Barclays Capital Inc. v. Theflyonthewall.com, Inc., 650 F.3d 876 (2d Cir. 2011) made the claim narrower. Investment banks sued a website that published their morning stock recommendations before the market opened. The court held the claim preempted. "The Firms are making the news; Fly, despite the Firms' understandable desire to protect their business model, is breaking it." The banks create recommendations rather than gather facts, and Fly was attributing them accurately rather than selling them as its own. The majority treated the five-part NBA test as not controlling, while Judge Raggi, concurring, thought it binding and would have resolved the case on direct competition.

ML Genius adds a timing lesson. Copying eleven days after publication is not hot, and a business model that values timeliness does not make lyrics time-sensitive. If you are thinking about asserting hot news for anything other than real-time factual data taken by a direct competitor, you should think again. The article Data Scraping After hiQ v. LinkedIn: Copyright, Contract, and Computer Fraud Claims places this theory among the other tools for data disputes.

Unjust enrichment, the claim that rarely makes it

Every state law complaint about copying seems to include a count for unjust enrichment, and it is the first to go. Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004) is typical. The plaintiffs said Phoenix Pictures was enriched by making The Thin Red Line without compensating or getting permission from the partnership. The act behind the claim was adaptation, the enrichment element only narrows it, and the claim was preempted, along with a declaratory claim about who held the rights. R.W. Beck, Inc. v. E3 Consulting, LLC, 577 F.3d 1133 (10th Cir. 2009) and Murray Hill Publications, Inc. v. ABC Communications, Inc., 264 F.3d 622 (6th Cir. 2001) are in accord, and Del Madera Properties v. Rhodes & Gardner, Inc., 820 F.2d 973 (9th Cir. 1987) said an implied promise not to use or copy is equivalent to section 106 protection.

Best Carpet Values, Inc. v. Google, LLC, 90 F.4th 962 (9th Cir. 2024) is the Ninth Circuit's newest extended treatment. Website owners complained that Google's Android Search App placed a "VIEW 15 RELATED PAGES" banner over their sites on users' phones. The court explained how a browser works in the course of holding for Google: the app obtains a copy of the page from the host server, translates the site's code, and recreates the page on the user's screen. Because a commercial website is a work of authorship, the first prong was met. Because displaying, reproducing, and overlaying that copy implicates section 106 rights, the second was too. Implied-in-law contract and unjust enrichment were preempted. The district court had reasoned that the plaintiffs were not asserting infringement, and the Ninth Circuit said that focus was wrong: preemption looks at the nature of the right, not the nature of the complained-of conduct. The court separately held that website owners have no chattel interest in copies on users' screens.

Exceptions exist where the state's enrichment law requires more. Digital Drilling Data Systems, L.L.C. v. Petrolink Services, Inc., 965 F.3d 365 (5th Cir. 2020) held a Texas claim survived because Texas requires a benefit obtained by fraud, duress, or the taking of an undue advantage, and the undue advantage alleged was causing customers to violate their software licenses. The court limited the holding to those allegations and left open that other Texas enrichment claims might be preempted. Reddit v. Anthropic, discussed below, is a recent district court remand order holding such a claim not preempted where it was pleaded on contract restrictions and technical circumvention.

Conversion, theft statutes, and computer crime statutes

The test here is physical. If the defendant took the plaintiff's actual thing, conversion is qualitatively different. Harper & Row, Publishers, Inc. v. Nation Enterprises, 723 F.2d 195 (2d Cir. 1983) said in dictum that conversion based on physical possession and control may survive, and Carson v. Dynegy, Inc., 344 F.3d 446 (5th Cir. 2003) reversed preemption of a claim for tangible copies. Spear Marketing, Inc. v. BancorpSouth Bank, 791 F.3d 586 (5th Cir. 2015) drew the line cleanly: physical property is fine, while intangible "confidential information" and "certain trade secrets" are not. GlobeRanger Corp. v. Software AG, 691 F.3d 702 (5th Cir. 2012) kept a case in federal court on that distinction while leaving the plaintiff free to prove that its claim really related to physical property.

Digital claims have fared poorly. OpenRisk, LLC v. MicroStrategy Services Corp., 876 F.3d 518 (4th Cir. 2017) is the leading example. A contractor moved a client's data from one cloud environment to another. The client sued for conversion and computer fraud under Virginia's Computer Crimes Act. Conversion was conceded, and the embezzlement and larceny theories fell too, since the core of the claim was wrongful copying. Rosciszewski v. Arete Associates, Inc., 1 F.3d 225 (4th Cir. 1993) reached the same result for Virginia's statute. Spear Marketing, Inc. v. BancorpSouth Bank, 791 F.3d 586 (5th Cir. 2015) did so for the Texas Theft Liability Act, whose "knowingly" element did not help. The deletion of data in OpenRisk, by contrast, was analyzed as a separate trespass claim and failed for lack of proof of injury rather than for preemption. Pleaders should take that hint. Deprivation is different from copying. For the federal analogue, The Computer Fraud and Abuse Act After Van Buren: Gates, Insiders, Scrapers, and the Loss Requirement explains why a claim under another federal statute is protected from Section 301 by subsection (d) but has its own limits.

Trade secrets, confidence, and fiduciary duty

These are the safest harbors, for a reason the House Report anticipated: elements such as breach of trust or confidentiality are different in kind from infringement. Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992) vacated a preemption ruling on this ground, calling the breach of duty the gravamen of the claim. It remanded so the district court could consider the employer's potential liability for improper acquisition, including on a constructive notice theory, even though the employee who brought in the code was not the defendant.

GlobeRanger Corp. v. Software AG United States of America, Inc., 836 F.3d 477 (5th Cir. 2016) is the modern summary. A competitor induced a former employee of the plaintiff to break a nondisclosure agreement, and installed and explored the plaintiff's Navy software in its own lab. Because trade secret law protects against any taking through breach of a confidential relationship or other improper means, the court said, "all ten circuits that have considered trade secret misappropriation claims have found them not preempted by the Copyright Act." It also rejected the argument that the confidential relationship must run directly from defendant to plaintiff, since third-party acquisition with knowledge is a recognized theory.

Be careful with how trade secret claims get bundled. In Spear Marketing, Inc. v. BancorpSouth Bank, 791 F.3d 586 (5th Cir. 2015), the conversion and theft statute counts were completely preempted, which brought the whole case to federal court. Plead your trade secret claim on its own, and identify the secret with care, as Identifying Trade Secrets in Litigation: Reasonable Particularity, Sequencing Discovery, and Protecting the Secret While You Sue explains. Defendants, for their part, should know the arguments in Defending a Trade Secret Claim: Reverse Engineering, Independent Development, Public Disclosure, and Readily Ascertainable Information, which do more work than a preemption argument will.

Fiduciary duty claims behave similarly. Briarpatch found no preemption of fiduciary claims because the duty owed to a partnership was its own extra element. Ritchie v. Williams, 395 F.3d 283 (6th Cir. 2005) treated the same theory as potentially outside Section 301, then found it time-barred under Michigan law anyway.

The right of publicity: what was used, and for what

Publicity law protects identity, and identity is not a work of authorship. So why do these cases come out against plaintiffs so often? Because the identity usually reaches the public inside a work someone else owns.

The leading cases fall into two groups.

The work itself. In Fleet v. CBS, Inc., 50 Cal. App. 4th 1911 (Cal. Ct. App. 1996), actors unpaid for a film sued to stop CBS distributing it. Their performances in the film were copyrightable, the court said, so the claim sought only to prevent reproduction and distribution. In Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006), Debra Laws objected to Jennifer Lopez and L.L. Cool J sampling her recording "Very Special" under a license from Elektra. The Ninth Circuit held a voice claim preempted "when the entirety of the allegedly misappropriated vocal performance is contained within a copyrighted medium." Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146 (9th Cir. 2010) held the rule applies even when the defendant had no right to the work: a performer could not use publicity law against sellers of pirated DVDs, because preemption does not turn on what rights the alleged infringer possesses. Ray v. ESPN, Inc., 783 F.3d 1140 (8th Cir. 2015) and Dryer v. National Football League, 814 F.3d 938 (8th Cir. 2016) followed for wrestling and NFL footage. In Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017), the NCAA's licensing agent sold downloads of a championship photograph for non-commercial art use, and the Ninth Circuit, on an anti-SLAPP motion, affirmed preemption. "[T]he crucial distinction," it said, is "not between categories of copyrightable works, but how those copyrighted works are used."

Identity as selling tool, or imitation. In Toney v. L'Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2005), a model licensed her photograph for a limited period, and a successor kept using it in advertising after the license expired. The Seventh Circuit held that identity is "not authored and it is not fixed" and reversed a preemption ruling. In Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001), Abercrombie ran a surfing photograph in its catalog, named the surfers, and sold replica shirts, which the court read as more than republishing the photo. Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) and Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992) are imitation cases, where a sound-alike took a voice rather than a recording. Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008) held neither express nor implied preemption barred a claim over NFL Films using a narrator's voice in a program promoting a video game. Brown v. Ames, 201 F.3d 654 (5th Cir. 2000) allowed a claim over musicians' names and likenesses on packaging.

The Second Circuit's two cases sharpen this. In Jackson v. Roberts (In re Jackson), 972 F.3d 25 (2d Cir. 2020), 50 Cent sued Rick Ross for sampling "In Da Club" on a free mixtape and naming him in the track title. Jackson owned no copyright in the recording, which was a work for hire. The court's primary holding was implied preemption, under a balancing test: how substantial is the state law interest, distinct from copyright's interests, and how much does the claim conflict with the copyright system? The court said the claim was "a thinly disguised effort to exert control" over a sample. Section 301 was an alternative holding as to the voice, and the use of the stage name fell only to implied preemption. That framing is easy to get wrong, because many summaries describe Jackson as a pure Section 301 case. Then Melendez v. Sirius XM Radio, Inc., 50 F.4th 294 (2d Cir. 2022) applied the Section 301 test directly when "Stuttering John" sued Sirius XM over clips from Howard Stern's archives used in ads for the show. Promoting the show with clips of the show did not use his identity for something separate, so the claim was preempted, with leave to amend denied as futile.

The working rule is this. If the only thing the defendant did was distribute the work, or a fair slice of it to promote that same work, expect preemption. If the defendant attached the person's identity to a separate product or implied an endorsement, expect the claim to survive. Maloney's "use for trade" language from the Restatement (Third) of Unfair Competition § 47 gives a useful test. Digital replicas are likely to fit this framework, since a synthetic imitation looks closer to Midler than to Laws, though the training of a voice model on existing recordings raises the Laws question in a new form. See Name, Image, Likeness, and Digital Replicas: The ELVIS Act, the NO FAKES Act, and Deepfake Law and, for the federal side of endorsement claims preserved by Section 301(d), False Endorsement Under the Lanham Act: Celebrities, Models, Sound-Alikes, and the Right of Publicity's Federal Cousin.

Scraping and terms of service: express preemption meets conflict preemption

A scraper is a program that sends the same HTTP requests a browser sends, then stores the responses instead of displaying them. Whether that activity violates anything depends on what the request did, what the server was told, and what the scraper did with the data. A platform has several distinct interests in play: the capacity of its servers, its contract terms, the privacy of its users, and the value of content largely written by those users. Preemption treats these very differently. That is the point of the two opinions that matter most.

X Corp. v. Bright Data

X Corp. v. Bright Data Ltd., No. C 23-03698 WHA (N.D. Cal. May 9, 2024) is Judge Alsup's opinion on a data broker scraping public posts. He divided the complaint by grievance rather than by count. Claims about access to systems failed on the pleadings because the complaint alleged only requests, without impairment under Intel Corp. v. Hamidi, 71 P.3d 296 (Cal. 2003). Claims about scraping and selling data failed as preempted, and not under Section 301(a). The court used conflict preemption, which is the Supremacy Clause doctrine that state law yields when it stands as an obstacle to Congress's objectives.

The reasoning runs as follows. X's users own their posts and give X a non-exclusive license, which carries no right to exclude others. X's terms then purported to bar scraping and resale. Enforcing that would "entrench its own private copyright system that rivals, even conflicts with, the actual copyright system enacted by Congress." The claims would interfere with the owners' right to choose, with fair use under 17 U.S.C. § 107, and with what Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) leaves free. The court was explicit about what it was not addressing: "an arm's length contract between two sophisticated parties." It was concerned with "a massive regime of adhesive terms." And it applied the Jackson inquiry, noting that state interests like user privacy might come out differently. X wanted to be paid, the court observed, not to protect anyone's privacy, so its claim was "little more than camouflage."

A later order on X's proposed amendment, X Corp. v. Bright Data Ltd., No. C 23-03698 WHA (N.D. Cal. Nov. 26, 2024), shows the split working in practice. Access-based claims for trespass to chattels, unlawful and fraudulent business acts, tortious interference, and contract breach could go forward, now that X alleged scraper-specific traffic patterns, server failures, and fake logins. Scraping-based claims for misappropriation, unjust enrichment, interference, and breach were denied without leave. Disclaiming copyright did not help X, the court said. "Of course a plaintiff's state-law contract claims can be preempted by federal copyright law even or especially if the plaintiff disclaims owning, licensing, or asserting federal copyrights."

Reddit v. Anthropic

Reddit, Inc. v. Anthropic PBC, No. 25-cv-05643-TLT (N.D. Cal.) (Dkt. 60, filed Mar. 30, 2026), comes out differently. Reddit sued in San Francisco Superior Court alleging that Anthropic's automated access to its site to train an AI model breached its User Agreement, among other claims. Anthropic removed, arguing that because the "essence" of the action concerned use of Reddit's content, the claims were preempted by the Copyright Act. Judge Thompson remanded, with the burden on the removing defendant and doubts resolved against removal.

The court found the first prong likely met, but held that each claim had an extra element. Treating browsewrap terms as binding given Reddit's showing of Anthropic's constructive and actual knowledge, it found an implied-in-fact contract at this stage of the case and read the agreement as restricting the method and purpose of access. It distinguished Best Carpet Values and relied on Altera, MDY, and earlier district court decisions on terms of use. It held unjust enrichment not preempted where predicated on bypassing technical safeguards, violating access restrictions, and misrepresenting compliance. Tortious interference survived on knowing disruption of Reddit's obligations to its users, including privacy obligations. Each prong of the California Unfair Competition Law claim was held not preempted, and the preemption argument on trespass was treated as raised too late. These were rulings on allegations, for jurisdiction only. The merits remain for the state court, and 28 U.S.C. § 1447(d) generally bars appellate review of a remand order.

Reconciling them, as far as they can be

The Reddit order does not cite X Corp. at all. Some of the difference is real disagreement. Whether knowledge and intent can supply an extra element for interference, as the Reddit order suggests by way of a district court quotation, sits uneasily with Altai, Briarpatch, and OpenRisk. And browsewrap formation is treated differently from how the Solicitor General described it.

Some of it is explained by the pleadings and posture.

Three caveats apply. No court of appeals has resolved this question in a published decision that we found. District court orders bind no one. And a separate question, addressed in hiQ Labs, Inc. v. LinkedIn Corp., 31 F.4th 1180 (9th Cir. 2022), is whether access to public websites violates federal computer law at all. Website Terms of Service and Online Contract Formation: Clickwrap, Browsewrap, and Enforceable Arbitration covers the threshold issue of whether the terms bind anyone. Generative AI disputes will keep this area moving. The Reddit order itself described Kadrey v. Meta Platforms, Inc., No. 23-CV-03417-VC (N.D. Cal. Nov. 20, 2023), as treating an unjust enrichment claim over training on a plaintiff's book, without allegations of how the model incorporated it, as essentially the same as copyright. For the infringement side, see Copyright Infringement Claims Against Generative AI: The New York Times, Getty, and What Comes Next.

Suppose a hobbyist forum called Lathe & Bench, whose members own their posts, finds that a data vendor called Coppice Analytics has copied every post and is selling the set. If Lathe & Bench's complaint says only that its terms forbid copying and Coppice copied, X Corp. and ML Genius are the defense's opening cites. If it can truthfully plead that Coppice created fake accounts after being banned, ignored rate limits so as to cause measurable outages, and lied about its crawler's identity, and it asks for damages tied to those acts, it has a very different lawsuit. It may still lose on the merits, but preemption will not end the case by itself.

Complete preemption: how a state complaint ends up in federal court

Ordinary preemption is a defense. Under the well-pleaded complaint rule, a defense does not create federal jurisdiction, as Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) and Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58 (1987) explain, and a plaintiff can choose state court by pleading state law. Complete preemption is the exception, and it applies where a federal statute so wholly displaces state law that the claim is federal no matter how it is labeled. Beneficial National Bank v. Anderson, 539 U.S. 1 (2003) frames the question as whether Congress intended the federal cause of action to be exclusive, and it found complete preemption only in a few statutes. Justice Scalia, dissenting, called this the "federalize-and-remove dance."

Where the circuits stand

The Supreme Court has never addressed complete preemption under the Copyright Act.

• Fourth Circuit. Rosciszewski v. Arete Associates, Inc., 1 F.3d 225 (4th Cir. 1993) was first. Section 301's language and the exclusive federal jurisdiction granted by 28 U.S.C. § 1338(a) together showed Congress meant preempted claims to be federal.
• Second Circuit. Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004) said it would have hesitated before Anderson, but concluded the Act preempts state law and substitutes a federal remedy, with its own elements, limitations period, and remedies.
• Sixth Circuit. Ritchie v. Williams, 395 F.3d 283 (6th Cir. 2005), joining them on national uniformity grounds.
• Fifth Circuit. GlobeRanger Corp. v. Software AG, 691 F.3d 702 (5th Cir. 2012) and Spear Marketing, Inc. v. BancorpSouth Bank, 791 F.3d 586 (5th Cir. 2015).
• Seventh Circuit. Wisconsin Interscholastic Athletic Ass'n v. Gannett Co., 658 F.3d 614 (7th Cir. 2011) did not need to decide. Noting the Second, Fourth, and Sixth Circuit decisions, it said, "We are not so certain."
• First Circuit. No majority holding. Practice notes sometimes cite Cambridge Literary Properties, Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co. KG, 510 F.3d 77 (1st Cir. 2007) as doubting the doctrine, but the page in question is Judge Cyr's dissent, and it should be cited as a dissent.
• Eleventh Circuit. Dunlap v. G&L Holding Group, Inc., 381 F.3d 1285 (11th Cir. 2004) applied the analysis to an idea-conversion claim and found no complete preemption on subject matter grounds.
• Ninth Circuit. We did not find a published opinion squarely holding that Section 301 completely preempts. District courts there, including in Vizio and Reddit, have proceeded through the Section 301 test. Counsel should check for developments.

The critics have a real argument. Anderson's logic depends on an exclusive federal cause of action. Section 301 preempts claims by plenty of people who have no federal claim to bring. Genius did not own the lyrics. The plaintiff in Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008) lacked standing under 17 U.S.C. § 501(b). The Cambridge dissent makes the point about co-owners. If the federal statute gives this plaintiff nothing, is the claim really federal? ML Genius and Sybersound show that courts have preempted anyway, and T.B. Harms Co. v. Eliscu, 339 F.2d 823 (2d Cir. 1964) remains the foundational reminder that a dispute that merely involves a copyright does not arise under the Act.

What removal actually looks like

A defendant has 30 days under 28 U.S.C. § 1446, normally from formal service under Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999). The notice should identify at least one claim that satisfies both prongs. One is enough, because the court can then take the rest under 28 U.S.C. § 1367. Spear put it plainly: "If any claim is preempted, however, the entire action may be removed." Briarpatch took supplemental jurisdiction over fiduciary claims that were clearly not preempted.

There is a route defendants should not forget and one they should not overuse. 28 U.S.C. § 1454 allows removal of a civil action in which any party asserts a claim arising under the copyright laws, by any party, with the time limit extendable for cause. Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002) and Vaden v. Discover Bank, 556 U.S. 49 (2009) made clear that a counterclaim cannot create arising-under jurisdiction on its own, and Vaden specifically said that a completely preempted counterclaim remains a counterclaim. Congress answered Holmes Group in part with Section 1454. Whether a completely preempted state claim counts as a claim "arising under" for Section 1454 purposes is not something we found an appellate decision resolving.

The downside risk for a defendant is a fee award under § 1447(c), available under Martin v. Franklin Capital Corp., 546 U.S. 132 (2005) where the removal lacked an objectively reasonable basis, along with lost time. A remand is also not necessarily the end of the preemption argument. Ordinary preemption remains a defense in state court. Vizio pressed it in its state court summary judgment papers after the remand. Ultraflo Corp. v. Pelican Tank Parts, Inc., 845 F.3d 652 (5th Cir. 2017) recounts a state court dismissing, on an unopposed motion, for lack of jurisdiction after an untimely removal attempt.

Royal Canin changes the amendment game

Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025) holds that when a plaintiff amends after removal to delete the federal claims, the court loses supplemental jurisdiction over what remains and must remand. Rockwell International Corp. v. United States, 549 U.S. 457 (2007) supplied the premise, and the Court dismissed its footnote suggesting otherwise for removed cases as dictum. The Court distinguished the case where a court itself dismisses federal claims. There, supplemental jurisdiction persists and § 1367(c) gives discretion.

Royal Canin arose from a case with express federal claims. But it has a clear application here that the older copyright cases do not reflect. In Spear Marketing, Inc. v. BancorpSouth Bank, 791 F.3d 586 (5th Cir. 2015), the plaintiff responded to removal by deleting its conversion claim and its references to copying, and the Fifth Circuit held that the original petition controlled under a time-of-filing rule. That part of Spear is hard to square with Royal Canin. Under Royal Canin, jurisdiction follows the operative pleading. At least one district court has applied that rule in a copyright removal. D2 Productions, Inc. v. Haynes, No. 4:25-cv-00755 (E.D. Mo. June 10, 2026) looked to the amended complaint (filed with leave of court) under Royal Canin and rejected the defendants' position that jurisdiction is fixed at removal. The court first doubted that Section 301 completely preempts at all, noting that neither the Supreme Court nor the Eighth Circuit has decided the question and following a District of Minnesota decision that declined to extend the doctrine to copyright. It then held that, even assuming complete preemption, the remaining claims were qualitatively different from an action for copyright, and it remanded.

So a plaintiff facing removal now has a real option. Amend under Fed. R. Civ. P. 15, often as of right within 21 days of a Rule 12(b) motion, to drop any claim that is truly preempted and rewrite the rest so it rests on genuine extra elements. If nothing left is completely preempted, the court should remand. Two limits apply. First, the court still decides whether the amended claims are preempted in substance, because artful relabeling does not change the analysis. Second, timing is a race. If the court dismisses the preempted claims before the plaintiff amends, the case falls under the discretionary rule rather than the mandatory one, though Royal Canin notes that courts ordinarily should send such cases back.

Suppose Dunmore Scale Models sues a former distributor in state court, alleging unjust enrichment for copying its assembly manuals, conversion of "proprietary content," and breach of a written confidentiality agreement. The distributor removes on complete preemption and moves to dismiss the first two counts. On day ten, Dunmore amends to keep only the confidentiality claim. The extra element is sound, and under Altai and Montz a duty of confidence is not equivalent to copyright. Dunmore then moves to remand under Royal Canin. The distributor's best response is that the confidentiality claim, as pleaded, is about nothing except copying, and that is where the fight will be. Had the court ruled on the motion first, the distributor could have asked it to keep the rest under Section 1367.

What happens to a claim once it is preempted

The label changes the case in ways that often matter more than the original claim.

The claim may be dismissed, or treated as a copyright claim. Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004) says that once a court finds complete preemption, it must dismiss the claim for failing to state a cause of action, which ML Genius quoted. Ritchie v. Williams, 395 F.3d 283 (6th Cir. 2005) treated the claims as recharacterized and applied federal rules. A plaintiff who owns the copyright should ask for leave to replead rather than assume it will happen.

The limitations period can change. 17 U.S.C. § 507(b) gives three years. In Ritchie, a 1990 letter claiming exclusive ownership started the clock on an ownership dispute a decade before suit. On damages, see Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366 (2024) and The Copyright Statute of Limitations After Warner Chappell v. Nealy: Discovery, Separate Accrual, and How Far Back Damages Reach.

Fees can follow. Rosciszewski v. Arete Associates, Inc., 1 F.3d 225 (4th Cir. 1993) held that a completely preempted claim becomes a claim under Title 17, so 17 U.S.C. § 505 applies. It remanded for the district court to consider an award that had been over $90,000, under factors later shaped by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) and Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016). A plaintiff who wanted a state court contract case can end up paying a defendant's fees as a losing copyright plaintiff. Plaintiffs should raise this risk with clients at the outset.

Registration and remedies matter. A claim that now is a copyright claim needs registration under 17 U.S.C. § 411(a) and Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019), though Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010) says that requirement is not jurisdictional. Statutory damages and fees for the plaintiff depend on timely registration under 17 U.S.C. § 412, as Copyright Damages and Remedies: Statutory Damages, Profits, Injunctions, and Fees explains.

Non-owners get nothing. Only the legal or beneficial owner of an exclusive right can sue under 17 U.S.C. § 501(b). A preemption ruling against a platform, a performer under a work for hire contract, or a co-venturer without a written transfer can end the case outright.

Where the doctrine is headed

Four questions are still open. Whether a promise not to copy, standing alone, is ever enough. Whether non-negotiated web terms get less respect than bargained contracts, which the Solicitor General suggested and X Corp. found decisive, but which Reddit did not treat that way. Whether conflict preemption, after Jackson and X Corp., becomes a second independent test that catches contract claims Section 301(a) would spare. And whether complete preemption survives a close reading of Anderson, an argument the Seventh Circuit has signaled it would hear. A plaintiff can preserve these arguments. A defendant should brief the alternative grounds.

Good secondary sources include Melville B. Nimmer and David Nimmer, Nimmer on Copyright, chapters 1 and 19D, the source of much of the courts' language; William F. Patry, Patry on Copyright; Paul Goldstein, Goldstein on Copyright; William M. Howard's annotations, Preemption of State Law Claim by Federal Copyright Act, 76 A.L.R.6th 289 (general views and jurisdiction) and 77 A.L.R.6th 543 (type of claim); Arthur R. Miller, Common Law Protection for Products of the Mind: An "Idea" Whose Time Has Come, 119 Harv. L. Rev. 703 (2006); and Mark A. Lemley, Beyond Preemption: The Law and Policy of Intellectual Property Licensing, 87 Calif. L. Rev. 111 (1999). The primary cases can be read on uplaw.us.

What to do on Monday

If you are about to sue. Map every count against the table above before you file. Ask who owns the copyright, what was fixed, and what the defendant did beyond copying. Plead the promise, the confidence, the deception, or the physical taking with facts. If you really are complaining about copying and you own the work, plead the federal claim, because a preempted state count may cost you more than a timely federal one. Our companion Pleading Around or Moving to Dismiss on Copyright Preemption: A Practical Guide walks through the drafting, and Copyright Preemption Toolkit: Extra Element Charts, Removal Papers, and Motion Outlines has sample language.

If you have been sued in state court. Calendar the 30 days. Separate claims that are about copying from claims that are about something else. Decide whether federal court is worth a removal fight, knowing a fast amendment can undo the removal after Royal Canin. Use the Copyright Preemption Analysis Checklist: A Practical Checklist to go count by count, and Getting Into or Staying Out of Federal Court: A Practical Guide to Jurisdiction and Removal for the mechanics.

If you are drafting a contract. Do not rely on a bare covenant not to copy. Write the obligation as something copyright would not give you: a payment for use, a confidentiality duty, a field-of-use limit, an audit right, a delivery obligation, or a limit on access. If you run a website and want your terms to do real work, require assent and tie the restriction to the access you provide. Software Licensing Agreements and Drafting Enforceable Non-Disclosure Agreements for Technology Transactions are useful starting points.

This article gives general information and is not legal advice for any particular dispute, where the facts and the governing circuit can change the answer. If a preemption question has appeared in your case, MC Law is glad to talk through what the record supports.

Related Documents

Related Articles

• Federal Subject-Matter Jurisdiction: Arising Under, Diversity, Supplemental Claims, and the Defect That Never Waives: how arising-under and supplemental jurisdiction work in general.
• The Right of Publicity: Name, Image, Likeness, Digital Replicas, and the Limits of Owning Yourself: the underlying state law right.
• People-Search Sites and the Right of Publicity: Yearbooks, Data Brokers, and the Persona Class Actions: publicity claims where the content is data rather than a copyrighted performance.
• Data Scraping After hiQ v. LinkedIn: Copyright, Contract, and Computer Fraud Claims: the other legal tools in a scraping dispute.
• Legal Protection of Software: Copyrights, Patents, Trade Secrets, and Contracts: how copyright, trade secret, and contract overlap for code.

Related Guides

• Pleading Around or Moving to Dismiss on Copyright Preemption: A Practical Guide: the step-by-step companion to this article.
• Removal and Remand: Getting a Case to Federal Court and Keeping It There: the procedure of removal and remand.
• Motions to Dismiss Under Rule 12: A Practical Guide for Plaintiffs and Defendants: the vehicle for most preemption rulings.

Related Checklists

• Copyright Preemption Analysis Checklist: A Practical Checklist: a claim-by-claim working list.
• Copyright Claim Timeliness Checklist: A Practical Checklist: what to check if a claim becomes federal.

Related Toolkits

• Copyright Preemption Toolkit: Extra Element Charts, Removal Papers, and Motion Outlines: charts, allegations, removal paragraphs, and motion outlines.
• Federal Jurisdiction Toolkit: Notices of Removal, Remand Motions, and Jurisdictional Allegations: general notice of removal and remand forms.