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.”

"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)).

" 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."

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.

"[D]ue diligence is not satisfied by passive reliance upon an allegedly deceptive statement." Weber v. Geffen Records, Inc., 63 F.Supp.2d 458, 467 (S.D.N.Y. 1999). Jordan has failed to demonstrate that the statute of limitations should be equitably tolled by Sony's conduct.

Consistent with the general rule, this Court concludes that Plaintiffs' claim of unjust enrichment is equivalent in substance to a copyright infringement claim, because the cause of action is based on the same conduct alleged to violate the Copyright Act. See Daboub v. Gibbons, 42 F.3d 285, 289 (5th Cir. 1995) (unjust enrichment claim relating to use of copyrighted material preempted); Weber v. Geffen Records, Inc., 63 F. Supp.2d 458, 463 (S.D.N.Y. 1999) (same); American Movie Classics Co. v. Turner Entertainment Co., 922 F. Supp. 926, 934 (S.D.N.Y. 1996) (same). At its core, Plaintiffs' state law theory of recovery is based on the alleged wrongful transmission of Alvarez Guedes' sound recordings over the airwaves.

Further, the state law claims seek to vindicate rights that are already protected by the Copyright Act. See Briarpatch, 373 F.3d at 306-07 (citing 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 1.01[B][1][g] (2003) for the proposition that "a state law cause of action for unjust enrichment . . . should be regarded as an 'equivalent right' and hence, pre-empted insofar as it applies to copyright subject matter"); Gary Friedrich Enters., LLC v. Marvel Enters., Inc., 713 F. Supp. 2d 215, 230-31 (S.D.N.Y. 2010) (finding conversion claim preempted by the Copyright Act); Weber v. Geffen Records, Inc., 63 F. Supp. 2d 458, 463 (S.D.N.Y. 1999) (finding accounting claim preempted because "[i]t [was] only through th[e] basic [copyright] claim . . . that anyone profiting must account to plaintiff"). Accordingly, Baiul's state law claims -- the only claims asserted in the fourth amended complaint -- are preempted by the Copyright Act and, therefore, the district court properly dismissed the action.

It is “only through plaintiff's claim that he did not authorize defendants' distribution, publication, and/or reproduction of the [song] that anyone profiting must account to plaintiff.” Levine v. Landy, 832 F.Supp.2d 176, 193 (N.D.N.Y. 2011) (citing Weber v. Geffen Recs., Inc., 63 F.Supp.2d 458, 463 (S.D.N.Y. 1999)); see also Baiul v. NBC Sports, 708 Fed.Appx. 710, 712-13 (2d Cir. Sept. 7, 2017) (summary order) (affirming district court's dismissal of accounting, unjust enrichment and conversion claims as they “seek to vindicate rights that are already protected by the Copyright Act”); McKenzie-Morris v. V.P. Recs. Retail Outlet, Inc., No. 22 Civ. 1138 (GHW), 2023 WL 5211054, at *10 (S.D.N.Y. Aug. 13, 2023) (“[A]s 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.'”) (collecting cases), reconsideration denied, No. 22 Civ. 1138 (GHW), 2023 WL 6603605 (S.D.N.Y. Oct. 7, 2023); D'Arezzo v. Appel, No. 22 Civ. 177 (SDA), 2024 WL 4384027, at *14 (S.D.N.Y. Oct. 3, 2024)

Weber v. Geffen Recs., Inc., 63 F.Supp.2d 458, 463 (S.D.N.Y. 1999). “It is only through this basic claim” of copyright infringement “that any enrichment is unjust, . . . or that anyone profiting must account to plaintiff.” Id.; see also McKenzie-Morris v. V.P. Records Retail Outlet, Inc., No. 22-CV-1138 (GHW), 2023 WL 5211054, at *10-11 (S.D.N.Y. Aug. 13, 2023) (collecting cases).