Fair use and federal clarification of state law: some helpful information

On Monday, in "ALA, ARL prefer clarification to legislation", I discussed the copyright status of pre-1972 sound recordings in the United States and raised the issue as to whether the Copyright Office, itself a Federal agency, was able to make a pronouncement concerning a matter of state law.  David O. Carson (General Counsel, U.S. Copyright Office) has kindly emailed this blog on this topic:

"Here's what the Copyright Office said in its report on the subject of confirming that that fair use applies to state-protected works: 

ALA and ARL have requested that the Office “confir[m] the availability of a flexible fair
use doctrine under state law in all 50 states.” Given that we are aware of only a single state court case – from a trial court – that has actually applied fair use to a common law copyright claim, that is a rather ambitious request. Of course, the Copyright Office has no authority to confirm the substance of state law. Nonetheless, the Office believes that, under proper facts, it is likely that any state court would find that fair use is a defense that can be considered and applied under principles of state common law copyright. Note, however, that traditionally fair use was not available for unpublished works – and for the most part state common law copyright has protected only unpublished works. But at least with respect to commercially distributed sound recordings, arguments based on the unpublished nature of a work are not very persuasive. 

Moreover, because fair use is a judge-made doctrine (merely codified after the fact in the
Copyright Act of 1976), there is no reason to believe that state courts considering common law copyright claims would not find that the defense does exist under appropriate circumstances. 

As noted above, common law copyright is not the primary means by which pre-1972 sound recordings are protected under state law. The states more frequently protect those
recordings under theories of unfair competition, which typically do not include a fair use defense, and through statutes that include no such defense. However, some courts have constructed analogous defenses to torts separate from but similar to copyright. It seems likely that in any case in which an action by a library or archives would be considered a fair use under federal copyright law, it would also likely be considered permissible under state law. 

See http://www.copyright.gov/docs/sound/pre-72-report.pdf at pp. 136-37 (footnotes omitted)".

Thanks, David!