What’s “Complete Preemption” and What is “Complete” about it?

Section 301 of the Copyright Act is entitled “Preemption with respect to other laws.” Section 301(a) states that all legal or equitable rights that are equivalent to any of the Section 106  rights with respect to works protected by Section 102 are governed exclusively by title 17. Keep your hands off, states.

Section 301(b) is a mirror image of Section 301(a), noting that state laws that aren’t like those mentioned in Section 301(a) are not preempted, meaning such state laws are enforceable. One example would be a purely oral speech. The emphasis on fixation as one of the demarcations between federal and state protection stems from the Constitutional limitation of protection to the “writings” of authors. I believe that “writings” presupposes fixation of the work in some tangible form, as did the Supreme Court’s opinion in Goldstein v. California, 412 U.S. 546, 561, 563 (1973) .That belief led me to draft, while copyright counsel to the House of Representatives, the bootleg provision in 17 USC Chapter 11 as based on the Commerce Clause rather than Article I, section 8, clause 8.  

There was no equivalent to Section 301 in prior copyright acts; indeed, until Section 301, states protected unpublished works. Yet, there was preemption before Section 301 pursuant to the Supremacy Clause, in Article VI, clause 2 of the Constitution. The other types of preemption (aside from statutory) existing before and after Section 301 are based on the Supremacy Clause. They are called “conflict” and “field” preemption. 

With conflict preemption, Congress enacts a law imposing restrictions or confers rights on private actors. A state law does similar things; its presence is said to conflict with federal law, resulting under the Supremacy Clause in preemption. With field preemption, a federal law occupies a “field” of regulation so comprehensively that it has left no room for further state legislation.

So, what then is “complete” preemption? It sounds like field preemption, and in some respects it is. In the case of copyright law, it applies not to a state statute that facially grants rights equivalent to those in title 17, nor to someone clumsily bringing an action in state court for “common law copyright,” nor to someone who asserts a federal copyright claim in a state court action. Those types of claims are kicked out under Section 301(a).  Instead, complete preemption refers to an exception to well-pleaded-complaint rule, where a plaintiff deliberately brings an action in state court under state causes of action but which are said to really be a federal copyright action in the sheep’s clothing of a facially non-preempted state law.  This is done to prevent removal to federal court. Usually, courts do not look beyond the face of the complaint to determine jurisdiction, but the Supreme Court has held that state court plaintiffs may not defeat removal by omitting to plead necessary federal questions in a state law complaint. Moreover, since preemption is an affirmative defense, under the well-pleaded complaint rule you can’t get federal jurisdiction by asserting a federal defense (including preemption) to what is a genuine state claim. Complete preemption gets you around these obstacles, allowing removal of the state action to federal court. 

 If there was a TV drama about this, the parties would be appearing before a state court judge, when the doors to the courthouse fly open, a U.S. Marshal enters huffing and puffing, brandishing a federal judge’s removal order, which is handed up to the astonished state court judge. The state court judge looks the order over, sees it is legit, gets up, and announces to the packed courtroom as he or she departs: “That’a all folks, the feds have taken over.”  

What happens after removal? The federal court decides if the claims are preempted by the Copyright Act. One example of this is the Second Circuit’s 2022 opinion in ML Genius Holdings LLC v. Google LLC, , 2022 WL 710744. In that case plaintiff brought breach of contract and unfair competition claims in state court alleging Google violated state law. The unfair competition claim was based on allegations of wrongfully copying and reproducing lyrics from plaintiff’s website. Plaintiff did not own copyright in those lyrics, however. If it did, the claim would have been for infringement in federal court. Indeed, Google had a license from the copyright owner, hence the sheep’s clothing of state unfair competition. The district found that it had jurisdiction for removal under complete preemption and held that the state claims were preempted. The Second Circuit affirmed.

It is not always the case though that where there is a removal under complete preemption, the federal court will find the claims preempted. When the federal court finds the claims not preempted, the removal is held invalid, and the matter is remanded to the state court from whence it came. This happened on January 31, in OEG, Inc. v. Korum, 2025 WL (W.D. Wash. Jan. 31, 2025), where the court, following complete preemption, went on to examine whether the state claims were preempted. Preemption is a two step analysis, involving whether the materials in question fall within the subject matter of copyright. If not, no preemption. If they do, on to the second; whether the rights asserted with respect to those materials are equivalent to those in 17 USC 106. In the OEG case, the materials were marketing materials, engineering plans and photographs. These were held copyrightable, so it was on to step two, and that’s where removal fell apart. The basic claim was for replevin – returning the stolen materials. Stealing physical copies of copyrighted works is not one of the Section 106 rights. If someone steals a copy of your book from a bookstore, that’s a state law issue, not a federal copyright issue.  There were other claims, but you get the idea.