Against my better judgment, I'm going to tell you why this argument is a complete non-starter. Consider it a gift, free from fees and completely pro bono, from me to you.
You're wrong in asserting that merely because the Copyright grants a civil ownership rights for artistic works in fixed medium that creates a conflict preemption with state criminal law purporting to regulate certain works covered under copyright. Conflict preemption only occurs when compliance with a state and federal law becomes impossible (example: state law forbids selling corn products with more than 10% High Fructose Corn Syrup; federal law forbids selling products corn products with less than 11% High Fructose Corn syrup.
See Fla. Lime & Avocado Growers v. Paul, 373 U.S. 123, 142-43 (1963)) or when a state law creates an obstacle to uniform regulation of a federal scheme.
See Geier v. American Honda Motor Co., 529 U.S. 861, 865 (2000).
Compliance with copyright laws are not impossible by the existence of state revenge pornography laws. I can copyright all sorts of things, and state law does not prevent me from copyrighting them. I may face criminal penalties for creating or disseminating illegal material, but that does not affect my copyright. Nor does it impede the uniform regulation of a federal scheme. Hence, no conflict preemption.
Further, criminal law remains a matter primarily of state responsibility. In areas traditionally regulated by the state, such as criminal law, there is a strong presumption against preemption.
See California v. ARC America Corp., 490 U.S. 93, 101 (1989) ("[W]e start with the assumption that the historic police powers of the State were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress" (quoting
Rice v. Santa Fe. Elevator Corp. 331 U.S. 218, 230 (1947));
Air Line Pilts Ass'n, Int'l v. UAL Corp., 874 F.2d 439, 447 (7th Cir. 1989). Even if you did have a point that there may be some sort of conflict preemption, which you don't, you'd run directly into the wall of courts being unwilling to create one where there is no express preemption in the domain of state criminal law.
An ownership right in artistic works does not conflict with a state's ability to ban certain material as illegal. If I were to accept your argument as fact, presumably child pornography, snuff films, and defamatory works could not be criminalized or subject to tort remedy by the state. But they are. Because there's no conflict.
In short, you're wasting your time. And I wasted mine by typing this and taking some time to find some citations on Westlaw, because I know for a fact that if you tossed three public defenders, you definitely aren't listening to advice from actual attorneys.
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REVENGE PORNOGRAPHERS, UNITE! lmfao it just never fucking ends, hes got that lolcow spiral going on where even if he doesnt do anything more flies come to orbit him.
