Plaintiff responds that this claim is qualitatively different than a copyright claim because it relates to his right to receive proceeds generated from the use of his photographs. “ ‘Courts have generally concluded that the theory of unjust enrichment protects rights that are essentially ‘equivalent’ to rights protected by the Copyright Act; thus, unjust enrichment claims relating to the use of copyrighted material are generally preempted.' ” Weber v. Geffen Records, Inc., 63 F.Supp.2d 458, 462 (S.D.N.Y.1999) (quoting Netzer v. Continuity Graphic Assocs., Inc., 963 F.Supp. 1308, 1322 (S.D.N.Y.1997)). In Netzer, “the gravamen of the unjust enrichment claim [was] unauthorized exploitation of Ms. Mystic [a comic book character] without providing an accounting.”

A claim for accounting is a remedy premised on a determination of co-ownership because the duty to account for profits "presupposes a relationship as co-owners of the copyright." Weber v. Geffen Records, 63 F. Supp.2d 458, 464 (S.D.N.Y. 1999). A. Ownership Claims

"The referenced 'scope of copyright,' 17 U.S.C. § 106, 'affords a copyright owner the exclusive right to: (1) reproduce the copyrighted work; (2) prepare derivative works; (3) distribute copies of the work by sale or otherwise; and, with respect to certain artistic works, (4) perform the work publicly; and (5) display the work publicly.'" Weber v. Geffen Records, Inc., 63 F. Supp. 2d 458, 462 (S.D.N.Y. 1999) (quoting Computer Assocs. Int'l v. Altai, Inc., 982 F.2d 693, 716 (2d Cir. 1992)).

Courts of this district have barred Lanham Act claims where the plaintiffs' trademark allegations merely restate the allegations of their copyright claims, and in particular, fail to show the "requisite affirmative action of falsely claiming originality beyond that implicit in any allegedly false copyright." Weber v. Geffen Records, Inc., 63 F. Supp.2d 458, 464 (S.D.N.Y. 1999); Armstrong v. Virgin Records, Ltd., 91 F. Supp.2d 628, 633 (S.D.N.Y. 2000) (finding that attribution of song authorship to defendant "does not venture beyond that implicit in any allegedly false copyright"). In order for a Lanham Act claim to survive in addition to a copyright claim, "an aggrieved author must show more than a violation of the author's protected right to credit and profit from a creation.

However, like the Ninth Circuit, "[a]ware that nearly every copyright-based claim involves a charge of improper failure to credit a purported author, the Second Circuit has limited the extent to which a copyright based claim may support a Lanham Act claim." Weber v. Geffen Records, Inc., 63 F. Supp. 2 d 458, 463 (S.D.N.Y. 1999) (citing Lipton, 71 F.3d at 473-74). The Second Circuit has held that mere copyright infringement and the presence of a false copyright notice alone are not enough to support a claim of reverse passing off under Section 43(a).

This argument is unavailing. As the Honorable Constance Baker Motley summarized governing law in Weber v. Geffen Records, Inc., 63 F. Supp.2d 458 (S.D.N.Y. 1999), a case in which the plaintiff asserted both copyright and Lanham Act claims in connection with the exclusion of his name from the credits of various songs recorded by the musical group "Guns N' Roses": Aware that nearly every copyright-based claim involves a charge of improper failure to credit a purported author, the Second Circuit has limited the extent to which a copyright-based claim may support a Lanham Act claim. . . . For the Lanham Act to apply to a copyright-based claim, an aggrieved author must show more than a violation of the author's copyright-protected right to credit and profit from a creation.

" Kregos v. Associated Press, 3 F.3d 656, 666 (2d Cir. 1993) (internal citation omitted); see 17 U.S.C. § 301(a) ("[A]ll legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright . . . are governed exclusively by this title. . . . [N]o person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State."). "Whether a state law claim is preempted depends on whether it is derivative of a copyright claim or is based on an 'extra element' beyond those of a copyright claim." Weber v. Geffen Records, Inc., 63 F. Supp. 2d 458, 462 (S.D.N.Y. 1999). Here, the essence of plaintiffs' unfair competition claim is that defendants have violated their exclusive rights to reproduce or prepare derivative works of the "Try" Composition and/or Recording. As pled, this claim "not only is based on a copyright claim, but also lacks any extra element making it sufficiently different from a copyright claim to escape preemption."

In support of this position, McGraw cites several district court decisions (discussed in depth below) where the injured party's discovery of copyright infringement was deemed to place the party on notice that the bad actor might be infringing other copyrights. Id. at 10 (citing Luar Music Corp. v. Universal Music Group, Inc., 847 F. Supp. 2d 299, 309 (D.P.R. 2012); Fahmy v. Jay-Z, 835 F. Supp. 2d 783, 790 (C.D. Cal. 2011); Weber v. Geffen Records, Inc. 63 F. Supp. 2d 458, 465 (S.D.N.Y. 1999); Kepner-Tregoe, Inc. v. Exec. Dev., Inc., 79 F. Supp. 2d 474, 488 (D.N.J. 1999)). GHPI counters by arguing that it reasonably perceived McGraw's voluntary disclosures as the acts of an honest business partner, thus fostering trust in McGraw's good faith rather than cynicism.

Baiul v. NBC Sports, No. 15-cv-9920, 2016 WL 1587250, at *10 (S.D.N.Y. Apr. 19, 2016) (quoting Dayan Enters., Corp. v. Nautica Apparel, Inc., No. 03-cv-5706, 2003 WL 22832706, at *1 (S.D.N.Y. Nov. 26, 2003)). And as numerous courts in this district have found, “claims for accounting based on the defendant's alleged misappropriation and exploitation of a copyright work are preempted by the Copyright Act.” Id.; see Gary Friedrich Enters., LLC v. Marvel Enters., Inc., 713 F.Supp.2d 215, 230-31 (S.D.N.Y. 2010) (dismissing an accounting claim as preempted by the Copyright Act); Carell v. Shubert Org., Inc., 104 F.Supp.2d 236, 249 n.9 (S.D.N.Y. 2000) (same); Weber v. Geffen Recs., 63 F.Supp.2d 458, 463 (S.D.N.Y. 1999) (same); Arden v. Columbia Pictures Indus., Inc., 908 F.Supp. 1248, 1264 (S.D.N.Y. 1995) (same); see also Baiul v. NBC Sports, 708 Fed.Appx. 710, 712-13 (2d Cir. Sept. 7, 2017) (summary order) (affirming the district-court decision in Baiul and noting that both the subject-matter and general-scope requirements of Copyright Act preemption are met when a state-law claim like accounting seeks to vindicate rights already protected by the Act for works that the Act covers).

"Courts have generally concluded that the theory of unjust enrichment protects rights that are essentially 'equivalent' to rights protected by the Copyright Act; thus, unjust enrichment claims relating to the use of copyrighted material are generally preempted." Netzer v. Continuity Graphic Assocs., Inc., 963 F. Supp. 1308, 1322 (S.D.N.Y. 1997) (collecting cases); see also Weber v. Geffen Records, Inc., 63 F. Supp. 2d 458, 463 (S.D.N.Y. 1999) (unjust enrichment claim relating to use of copyrighted material preempted); Am. Movie Classics Co. v. Turner Entm't Co., 922 F. Supp. 926, 934 (S.D.N.Y. 1996) (same); Data Gen. Corp. v. Grumman Sys. Support Corp., 795 F. Supp. 501, 506 (D. Mass. 1992), aff'd, 36 F.3d 1147 (1st Cir. 1994) (same). Consistent with this general trend, this Court has previously held that an unjust enrichment claim under Puerto Rico law based on the same conduct alleged to violate the Copyright Act is equivalent in substance to a copyright infringement claim and, therefore, preempted by the Copyright Act.