Qualitative difference sets a precedent to nullify preemptive suits across the board.

The analysis of courts invoking the "substantial similarity" test under section 43(a) often mirrors, in application, a conventional preemption analysis under section 301(a) of the 1976 Act. As discussed in the foregoing section, courts inclined to sustain a section 43(a) violation in the context of reverse passing off cases involving copyrightable property typically conclude that "an aggrieved author must show more than a violation of the author's copyrightprotected right to credit and profit from a creation." [FN168] In fact, at least one district court applying this standard has recognized explicitly that "[t]his rule is analogous to the preemption rule that a state law claim requires an 'extra element,' beyond those tracing to any copyright," so that the nature of the section 43(a) action is "qualitatively different" from a cause of action based on copyright infringement. [FN169] Section 301 of the Copyright Act sets forth an express test for determining whether a particular state law is preempted by the 1976 Act. The test under section 301 has two parts. The first part of the preemption test focuses on the nature of the work protected by the state law. Specifically, preemption will not occur if the state law does not pertain to "works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright." [FN170] The states, in other *1015 words, are free to regulate all works that are not protected by the copyright law because of their nature or form of expression. [FN171] The second part of the preemption test emphasizes the nature of the rights that the state law attempts to safeguard. If the state seeks to protect rights that are "not equivalent to any of the exclusive rights within the general scope of copyright," the state's law will not be preempted by section 301. [FN172] The application of the equivalency prong of the preemption test thus requires a determination whether a particular state law creates rights that are "equivalent" to any of the rights protected by section 106 of the Act. [FN173] The 1976 Act does not define the term "equivalent," but the legislative history indicates that a state cause of action will not be preempted if it contains elements that are "different in kind" from copyright infringement. [FN174] In applying this standard, most courts have followed the late Professor Nimmer's suggestion that an "equivalent" right is one which "is infringed by the mere act of reproduction, performance, distribution or display." [FN175] Essentially, this approach requires an analysis of the state law in question to determine what acts will constitute an infringement. If the exercise of one or more of the specific rights protected by federal copyright law is all that is necessary to constitute an infringement of the state law, preemption will occur. If other elements also are required to infringe the state law, no preemption will result. [FN176] Significantly, Congress confined the preemption application of section 301(a) to state laws. The legislative history clearly states that "there is no intention to deal with the question of whether Congress can or should offer the equivalent of copyright protection under some constitutional provision other than the patent-copyright clause of article I, section 8." [FN177] *1016 Subsection (d) of section 301 expressly states that "nothing contained in [Title 17] annuls or limits any rights or remedies under any other Federal statute." [FN178] Thus, by virtue of the statute's express terms, Congress did not intend the section 301(a) analysis to govern situations where plaintiffs are invoking section 43(a), a federal provision, to obtain a remedy for reverse passing off when the subject matter at issue is copyrightable property. Even so, some courts, particularly district courts in the Seventh Circuit, have expressly relied on the section 301(a) paradigm to decide cases involving this issue. LaCour v. Time Warner, Inc., [FN179] an unpublished opinion, is representative of these district court opinions. LaCour involved a song initially recorded by the defendant which became the inspirational theme song for the movie Space Jam. [FN180] Several years after the song's initial recording by the defendant, plaintiff LaCour alleged that he was the song's sole and original author, and sued the defendant for copyright infringement, and violations of section 43(a) and state unfair competition law. In LaCour's complaint, he alleged that the defendant's version of the song was derived from, and substantially similar to, the plaintiff's version, and that the defendant made false and misleading representations to the public by claiming authorship of the song. LaCour concerns exclusively the question of whether the federal and state unfair competition causes of action are preempted by section 301(a) of the copyright statute. The court noted that in addressing the question of whether copyright law limits a plaintiff's right to relief under section 43(a), district courts in the Seventh Circuit have not relied on either the "bodily appropriation" or "substantial similarity" tests. [FN181] Instead, the district courts have compared a reverse passing off claim under section 43(a) to a reverse passing off claim under state unfair competition law, based on the theory that the requisite elements for both causes of action are the same. [FN182] Specifically, both state unfair competition law and section 43(a) causes of action are grounded in the identical objectives of protecting consumers from confusion and deception. Such congruence justifies applying the section 301(a) preemption analysis that governs *1017 state unfair competition law reverse passing off claims to section 43(a) claims involving reverse passing off. [FN183] Thus, as LaCour illustrates, district courts in the Seventh Circuit eschew the "bodily appropriation" and "substantial similarity" approaches endorsed elsewhere in favor of an explicit adoption of the section 301(a) framework. [FN184] Moreover, in determining what types of allegations would render a state law claim "qualitatively different" from one based on copyright infringement, LaCour suggests that a plaintiff must allege affirmative misrepresentations about the origin of the work. Such affirmative misrepresentations are in contrast to the inherent misrepresentations that otherwise accompany the unauthorized copying and reproduction of another's copyrighted work in a reverse passing off case. [FN185] In LaCour, the court held that the plaintiff had not made this showing because the essence of his complaint was the defendant's sale and representation of the song as his own work. As such, the plaintiff's complaint amounted to nothing more that an assertion of the defendant's "violation of the reproduction and derivative rights protected by the copyright law." [FN186] Of course, given that LaCour involved a motion to dismiss rather than a complete trial on the merits, the case provides little guidance regarding what type of allegations would meet the court's articulated standard of "affirmative misrepresentations about the origin of the work." [FN187] This procedural characteristic and consequent vague direction is representative of most other district court opinions in the Seventh Circuit, both those treating preemption in the context of section 43(a) as well as state unfair competition law. One court, in fact, has gone so far as to broadly suggest that "relief under the Lanham Act is redundant and unnecessary when a product allegedly is copyrighted," *1018 although the case dismissing the plaintiff's complaint contains no analysis of this sweeping point. [FN188]