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<b><i>Commentary: </i>Keeping Copyright Preemption on Track</b>
The bedrock of the film industry is the protection afforded by the Copyright Act, as without it all is for naught ' no one would spend more than a few dollars to make a film if it could not be protected. It is thus necessary for us to jealously guard the proper application of the Copyright Act and we should have qualms when copyright cases go off track. One critical aspect of the Copyright Act is the degree to which it preempts state law.
The general rule is that the owner of a work that comes within the scope of the Copyright Act must seek protection under that Act, not under state law, in order to provide uniform results. There are, unfortunately, two glaring instances of entire lines of copyright preemption cases that have run off the rails, albeit in different directions: one line expanding preemption and one line shrinking it, in each case beyond what was intended by the statute.
Implied-in-Fact v. Implied-at-Law
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