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Abstract

There exists in the law of copyright preemption what some have identified as a paradox: that in certain cases involving claims for voice misappropriation in which a plaintiff’s voice has merely been imitated, claims have been allowed to proceed, while other cases that involve actual uses of a plaintiff’s voice—that is, samples from sound recordings—have been held to be preempted by the federal Copyright Act. This article argues that this apparent paradox is actually no conflict at all. After a brief background section, this article collects and explains cases, discusses the strengths and weaknesses of one possible harmonization of the case law presented by one of the preeminent copyright scholars in America today, then proposes a new way to think about the cases, and explains why what seems like a conflict at first glance is actually correct, both as a matter of federal preemption law and as a normative matter.

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