Andrew Ehat brought this action against Gerald and Sandra Tanner, dba Modern Microfilm Company (the Tanners), alleging injury from the Tanners' unauthorized reproduction and sale of literary material in which Ehat claimed a proprietary interest. Judgment was entered against the Tanners, and they appeal. We reverse.
Ehat was a scholar engaged in post-graduate research on the history of the Church of Jesus Christ of Latter-Days Saints (the LDS Church). The Tanners publish and distribute documents and works relevant to the LDS Church. In the course of his research, Ehat examined and took notes from a 350-page transcript of the William Clayton Journals at the LDS Church Archives.
Ehat's complaint asserted claims under the federal copyright statutes, on which the judge granted summary judgment for the Tanners. In addition, the complaint alleged state common law claims for unfair competition and unjust enrichment.
Federal copyright law was amended by the Copyright Act of 1976 to preempt state law as follows:
17 U.S.C. § 301(a) (1982). Congress expressly stated that section 301 is intended to prevent "the States from protecting ... [a work] even if it fails to achieve Federal statutory copyright because it is too minimal or lacking in originality to qualify, or because it has fallen into the public domain." H.R.Rep. No. 1476, 94th Cong., 2d Sess. 131, reprinted in 1976 U.S.Code Cong. & Ad.News 5659, 5747. State law forbidding others to copy an article "unprotected by a patent or a copyright ... would interfere with the federal policy, found in Art. I, § 8, cl. 8, of the Constitution and in
Under section 301, a state common law or statutory claim is preempted if: (1) the work is within the scope of the "subject matter of copyright" as specified in 17 U.S.C. §§ 102, 103; and (2) the rights granted under state law are equivalent to any exclusive rights within the scope of federal copyright as set out in 17 U.S.C. § 106. See Harper & Row Publishers, Inc. v. Nation Enterprises, 723 F.2d 195, 199-200 (2d Cir.1983), rev'd on other grounds, ___ U.S. ___, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985); Schuchart & Associates v. Solo Serve Corp., 540 F.Supp. 928, 942 (W.D.Tex.1982); 1 M. Nimmer, Nimmer on Copyright § 1.01[B], at 1-9 (1985).
Literary works, including compilations and derivative works, are within the subject matter of copyright if they are original works of authorship fixed in any tangible medium of expression. See 17 U.S.C. §§ 102, 103. This is so notwithstanding the material could not be copyrighted. See Harper & Row, 723 F.2d at 200. The material at issue here clearly falls within the subject matter of copyright. The district court did not address this issue, and Ehat does not argue otherwise on appeal.
We now turn to whether the rights Ehat seeks to assert under state common law are equivalent to those exclusive rights within the scope of copyright. Under federal law, the owner of copyright has the exclusive right "to reproduce the copyrighted work" and "to distribute copies" to the public by sale. See 17 U.S.C. §§ 106(1), (3).
Harper & Row, 723 F.2d at 200 (citations omitted).
In an effort to distinguish this case from a preempted claim, the district court granted Ehat relief based on its finding that, by printing and selling Ehat's notes, the Tanners "bodily appropriated the work product of plaintiff" and derived a profit from their misappropriation. Rec., vol. V, at 13-14. We need not decide whether this misappropriation of material states a claim for relief under Utah law. Assuming that it does, see generally International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918); Prosser & Keeton on Torts § 130 at 1020-22 (5th ed. 1984), we see no distinction between such a state right and those exclusive rights encompassed by the federal copyright laws. See Warner Bros., Inc. v. American Broadcasting Co's., 720 F.2d 231, 247 (2d Cir.1983) ("state law claims that rely on the misappropriation branch of unfair competition are preempted"); Schuchart & Associates, 540 F.Supp. at 943-44 (same). See generally 1 Nimmer § 1.01[B], at 1-16 to 1-22. We cannot agree with the district court that Ehat's state claim was not within the scope of copyright because it was based on his right in the notes "as a physical matter and property." Rec., vol. V, at 9. Ehat did not allege a state law claim of conversion to recover for the physical deprivation of his notes. Instead, he sought to recover for damage flowing from their reproduction and distribution. See Harper & Row, 723 F.2d at 200-01. Such reproduction interferes with an intangible literary or artistic property right equivalent to copyright. See 1 Nimmer § 1.01[B], at 1-14.4 n. 51.
Our view of the nature of Ehat's claim is confirmed by the district court's award of damages. The court awarded $960, representing the Tanners' profits from the printing and sale of their publication,
The judgment entered by the district court conclusively establishes the nature of Ehat's claim as equivalent to one within the scope of the federal copyright. The court thus stated:
Rec., vol. I, at 196 (emphasis added).
Ehat "cannot achieve by an unfair competition claim what [he] failed to achieve under [his] copyright claim." See Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 918 (2d Cir.1980).
H.R.Rep. No. 1476, 94th Cong., 2d Sess. 130, reprinted in 1976 U.S.Code Cong. & Ad News, 5659, 5746.
Accordingly, Ehat's state law claim is preempted. The case is reversed and remanded for further proceedings consistent with this opinion.
Rec., vol. I, at 5.