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 cases relied upon by Defendant are distinguishable because, upon closer inspection, they all challenged the right of the defendant (sometimes a co-owner) to use the copyrighted works. See, e.g., Weber v. Geffen Records, Inc., 63 F. Supp. 2d 458, 463 (S.D.N.Y. 1999) (dismissing unjust enrichment claim against putative copyright co-owner as preempted because plaintiff alleged that "defendants' copyrights should not entitle them to the full bundle of privileges that attach to copyright ownership"); Netzer v. Continuity Graphic Assocs., Inc. , 963 F. Supp. 1308, 1322 (S.D.N.Y. 1997) (finding unjust enrichment claim preempted where based on an allegation of an "unauthorized exploitation" of the work of a co-owner); Strauss v. Hearst Corp., No. 85 Civ. 10017 (CSH), 1988 WL 18932, at *9-10 (S.D.N.Y. Feb. 19, 1988) (finding that "[i]f in fact Hearst's use of the [work] infringed a copyright owned by Strauss, then it is possible to say, in a general sense, that Hearst was unjustly enriched at the expense of Strauss, the copyright holder" (emphasis added)); see also Briarpatch, 373 F.3d at 306 (finding unjust enrichment claim preempted because it challenged the defendants' right to prepare a derivative work (movie) based on the copyrighted work (novel));

If plaintiffs' claim for unjust enrichment was solely based on Tubb's unfair economic gain from violating plaintiffs' copyright, it would be preempted. Del Madera Properties v. Rhodes Gardner, Inc., 820 F.2d 973 (9th Cir. 1987); Ehat v. Tanner, 780 F.2d 876, 878 (10th Cir. 1985); Weber v. Geffen Records, Inc., 63 F. Supp. 2d 458, 463 (S.D.N.Y. 1999). However, plaintiffs have asserted a distinct factual basis for this claim which does not overlap with plaintiffs' copyright claims.