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How NY Courts Find Copyright Preemption of State Law Right of Publicity Claims
Under §301 of the U.S. Copyright Act, state law claims that are "equivalent" to exclusive rights in copyrights granted by federal law are preempted by the federal statute. To survive preemption, courts consider whether a state law claim in a lawsuit has an "extra element" that qualitatively distinguishes it from a federal copyright claim. Courts typically find that state law claims, such as breach of contract, have an extra element. Other state law claims, such as conversion, get varying court determinations as to whether they are preempted under §301.
In Laws v. Sony Music Entertainment Inc., 448 F.3d 1134 (9th Cir. 2006) — a precedential ruling on whether federal copyright law preempted a state right-of-publicity claim over use of a singer's voice in a sound recording sample — Debra Laws had assigned to Elektra/Asylum Records in the 1970s Elektra/Asylum owned the copyrights in Laws' recordings. She later filed a right-of-publicity suit under California statutory and common law, after the label issued a license years later for use of a sample containing her voice from her 1980 recording "Very Special" in Jennifer Lopez's 2002 recording and music video "All I Have." The U.S. Court of Appeals for the Ninth Circuit decided Laws' "right of publicity claim is based exclusively on what she claims is an unauthorized duplication of her vocal performance of the song 'Very Special.' Although California law recognizes an assertable interest in the publicity associated with one's voice, we think it is clear that federal copyright law preempts a claim alleging misappropriation of one's voice when the entirety of the allegedly misappropriated vocal performance is contained within a copyrighted medium."
What is the view of the U.S. Court of Appeals for the Second Circuit's view on the preemption issue? Two 2021 New York federal court decisions are worth noting. One of these cases involved a voice preemption claim in a California right of publicity context, the other whether an unjust enrichment claim was preempted in a copyright infringement action over use of the plaintiff's vocal arrangements.
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