Section 301 preempts state claims protecting rights equivalent to the exclusive copyright rights in works within the subject matter of copyright. Claims requiring an extra element beyond copying survive.
Contract claims frequently survive preemption.
Alternative Names:
Section 301 Preemption|Federal Copyright Preemption
Why it Matters?
The extra element test determines survival, and claims requiring proof of a promise, a confidential relationship, or deception include an element beyond copying and generally survive, while conversion and unjust enrichment claims resting solely on unauthorized use do not. Contract claims survive in most circuits because the promise supplies the extra element, which is why licensors plead breach alongside infringement.
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Frequently asked questions
What is the extra element test?
Do contract claims survive?
