Copyright Preemption Remix – The Second Circuit Finds Implied Preemption of Right of Publicity Claim Relating to Remixes on Mixtape
MSK Client Alert
September 2, 2020
The Second Circuit recently issued an important decision, In re Jackson, No. 19-480, — F.3d —, 2020 WL 4810706 (2d Cir. Aug. 19, 2020), in which it held that a state law right of publicity claim was barred on the ground of implied copyright preemption. While implied preemption—also known as conflict preemption—has come up in other copyright contexts,[1] In re Jackson appears to be the first published opinion to bar a right of publicity claim on that basis. The decision portends the more frequent invocation of the implied copyright preemption doctrine, and raises questions to be answered, in future cases involving right of publicity or other types of state law claims.