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."

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).

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).

generally preempted.” Video Pipeline, 210 F.Supp.2d at 567 (citing Weber v. Geffen Recs., Inc., 63 F.Supp.2d 458, 462 (S.D.N.Y. 1999)). Plaintiff does not differentiate this claim in any way from the copyright infringement claim.

The date of discovery "will be later than the date of [infringement] only to the extent that plaintiff exercised reasonable diligence but remained unaware of the [infringement]." Weber v. Geffen Records, Inc. , 63 F. Supp. 2d 458, 464 (S.D.N.Y. 1999) (Motley, J.). McGraw-Hill does not dispute that Pelaez became aware of the infringements he alleges in late 2014 (McGraw-Hill 56.1 Counter ¶ 97), but nevertheless contends that Pelaez's claims are untimely, for two reasons.

The Court is persuaded by the reasoning of numerous courts that claims for accounting based on the defendant's alleged misappropriation and exploitation of a copyrighted work are preempted by the Copyright Act. E.g., Carell v. Shubert Org., Inc., 104 F. Supp. 2d 236, 249 n.9 (S.D.N.Y. 2000); Weber v. Geffen Records, Inc., 63 F. Supp. 2d 458, 463 (S.D.N.Y. 1999); Arden v. Columbia Pictures Indus., Inc., 908 F. Supp. 1248, 1264 (S.D.N.Y. 1995). Plaintiffs' accounting claim is therefore preempted.

Davies has failed to identify an extra element present in a misappropriation or accounting claim that would change the nature of the claim, and indeed, courts have consistently found that a claim for misappropriation or conversion of copyrighted works does not include an extra element and is thus preempted by the Copyright Act. See Firoozye v. Earthlink Network, 153 F. Supp. 2d 1115, 1130 (N.D. Cal. 2001) (a claim "for conversion of intangible property arising from the reproduction of the property is clearly equivalent to a copyright claim"); Goldberg v. Cameron, 482 F. Supp. 2d 1136, 1151 (N.D. Cal. 2007) (finding claim for misappropriation of musical work was preempted); Weber v. Geffen Records, Inc., 63 F. Supp. 2d 458, 463 (S.D.N.Y. 1999) (finding claim for accounting between disputed coauthors was preempted). The first part of the preemption test is thus met.

However, accounting claims based primarily on copyright infringement do not satisfy the "extra element" test and are preempted. See Weber v. Geffen Records, Inc., 63 F.Supp.2d 458, 463 (S.D.N.Y. 1999); Arden v. Columbia Pictures Industries, Inc., 908 F.Supp. 1248, 1264 (S.D.N.Y. 1995). D. Lanham Act Claim