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.

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).

The author must make a greater showing that the designation of origin was false, was harmful, and stemmed from some affirmative act whereby [defendant] falsely represented itself as the owner.Weber v. Geffen Records, Inc., 63 F. Supp.2d 458, 463 (S.D.N Y 1999) (Motley, J.) (internal quotation marks and citations omitted). Given the most liberal reading of the second amended complaint, plaintiff's Lanham Act claim is based on no more than an alleged copyright violation and is impermissibly duplicative of his claim for relief under the Copyright Act.

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 Seventh Circuit has set forth a two-part test to determine whether a state law claim is equivalent to one protected by the Copyright Act; the work at issue must be fixed in a tangible form and come within the subject matter of copyright as specified in § 102, and the right asserted must be equivalent to any of the rights specified in § 106. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1453 (7th Cir. 1996); Baltimore Orioles, 805 F.2d at 674. Although the Seventh Circuit has not addressed the issue, district courts in this circuit and other Courts of Appeals have applied these principles to claims brought under § 43(a) of the Lanham Act. See, e.g., Montgomery v. Noga, 168 F.3d 1282, 1298-1300 (11th Cir. 1999); Lipton v. Nature Co., 71 F.3d 464, 473-74 (2d Cir. 1995); LaCour v. Time Warner, Inc., No. 99 C 7105, 2000 WL 688946, at *3-4 (N.D.Ill. May 24, 2000); Goes Lithography Co. v. Banta Corp., 26 F. Supp.2d 1042, 1046-47 (N.D.Ill. 1998); see also Weber v. Geffen Records, Inc., 63 F. Supp.2d 458, 464 (S.D.N.Y. 1999) ("[P]laintiff's Lanham Act claim is impermissible because it would essentially duplicate a Copyright Act claim."). As relevant here Lipton, LaCour, and Goes Lithography hold that a false designation of origin claim under § 43(a) based exclusively on a copyright notice violation is preempted by the Copyright Act; the Montgomery court declined to decide that question, and instead distinguished Lipton on the ground that the Montgomery defendant was charged with more than a simple copyright notice violation because the defendant claimed actual ownership of the plaintiffs copyrighted material.

The Seventh Circuit has set forth a two-part test to determine whether a state law claim is equivalent to one protected by the Copyright Act: the work at issue must be fixed in a tangible form and come within the subject matter of copyright as specified in § 102, and the right asserted must be equivalent to any of the rights specified in § 106. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1453 (7th Cir. 1996); Baltimore Orioles, 805 F.2d at 674. Although the Seventh Circuit has not addressed the issue, district courts in this circuit and other Courts of Appeals have applied these principles to claims brought under § 43(a) of the Lanham Act. See, e.g., Montgomery v. Noga, 168 F.3d 1282, 1298-1300 (11th Cir. 1999); Lipton v. Nature Co., 71 F.3d 464, 473-74 (2d Cir. 1995); Lacour v. Time Warner Inc., No. 99 C 7105, 2000 WL 688946, at *3-4 (N.D.Ill. May 24, 2000); Goes Lithography Co. v. Banta Corp., 26 F. Supp.2d 1042, 1046-47 (N.D.Ill. 1998); see also Weber v. Geffen Records, Inc., 63 F. Supp.2d 458, 464 (S.D.N.Y. 1999) ("[P]laintiff's Lanham Act claim is impermissible because it would essentially duplicate a Copyright Act claim"). As relevant here Lipton, Lacour, and Goes Lithography hold that a false designation of origin claim under § 43(a) based exclusively on a copyright notice violation is preempted by the Copyright Act; the Montgomery court declined to decide that question, and instead distinguished Lipton on the ground that the Montgomery defendant was charged with more than a simple copyright notice violation because the defendant claimed actual ownership of the plaintiffs copyrighted material. Here, Counts II through V of Natkin and Green's complaint are identical to each other: each count complains that the defendants falsely claimed a copyright in the eleven photographs published in Make the Connection thereby falsely suggesting that Natkin and Green "endorsed and approved of such use of their [photographs] and their names," (R. 17, Am.Compl. ¶ 39), falsely passing off the photos as belo

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.

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.

Roley v. New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir. 1994). See also Weber v. Geffen Records, Inc., 63 F. Supp.2d 458, 464 (S.D.N.Y. 1999) (quoting Merchant v. Levy, 92 F.3d 51, 56 (2nd Cir. 1996)) (copyright claim accrues "when a plaintiff knows or has reason to know of the injury upon which the claim is premised.") As such, the statute of limitations "is triggered only by violations — i.e., actual infringements." Kling v. Hallmark Cards, Inc., 225 F.3d 1030, 1038 (9th Cir. 2000).

Finally, to the extent that the "bodily misappropriation" standard reflects the courts' concern that the Lanham Act not be construed as providing a redundant or overly expansive remedy where copyright law supplies an adequate basis for relief, see, e.g., Shaw v. Lindheim, 919 F.2d 1353, 1364-65 (9th Cir. 1990); Goes Lithography Co. v. Banta Corp., 26 F. Supp.2d 1042, 1047 (N.D.Ill. 1998), this Court finds that this concern is obviated through the requirement, as adopted by courts in the Second Circuit, that a Lanham Act "reverse passing off" claim be supported by an "extra element" not present in a copyright infringement claim — namely, proof of some "affirmative act" through which the defendant falsely represents itself as the originator of the work in question. See, e.g., Weber v. Geffen Records, Inc., 63 F. Supp.2d 458, 463-64 (S.D.N.Y. 1999); see also EFS Marketing, Inc. v. Russ Berrie Co., 76 F.3d 487, 493 (2d Cir. 1996) (observing that "the Copyright Act and the Lanham Act address different harms," with "[t]he first follow[ing] from a lack of originality, [and] the second from a likelihood of confusion" (internal quotations and citation omitted)); Campbell, 917 F. Supp. at 1583 (noting that the Lanham Act's focus on consumer confusion provides a basis for distinguishing claims brought under copyright law). Applying these principles to the present case, the Court finds that issues of fact preclude a determination as a matter of law regarding the first element of a "reverse passing off" claim.