Much of the confusion over copyright pre-emption that has followed in the wake of Sears and Compco may be due to a fundamental difference between the present patent and copyright acts. Unlike the patent law that was at issue in Sears and Compco, the federal Copyright Act provides that the states may in limited circumstances protect literary property through the doctrine of common-law copyright. Under section 2 of the Act, a state may prevent copying of a work so long as it remains "unpublished." An alternative ground of decision in Paladin was that, regardless of preemption under Sears and Compco, DeCosta had divested himself of any potential common-law rights in his creation through the unrestricted distribution of calling cards and photographs. In so holding, the court apparently assumed that the question of whether a divestitive publication had occurred should be determined by federal standards. But the weight of judicial opinion, at least before Sears and Compco, supports the use of state standards to determine whether common-law rights have been divested. There is some support for this position in the text of the Copyright Act itself: since section 2 of the Act refers to state laws of literary property, it should include the state definition of divestitive publication.
Michigan Law Review,
Copyright Pre-emption and Character Values: The Paladin Case as an Extension of Sears and Compco,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol66/iss5/9