It should be noted that with regard to the phrase "there are some things that money can't buy," not even MasterCard claims that phrase is its original creation. The second statutory factor, "the nature of the copyrighted work," § 107(2), relates to whether the original work is "`creative' as opposed to `factual,' as well as to whether the work has been previously published" Feiner v. H.R. Industries, 10 F. Supp.2d 310, 314 (S.D.N.Y. 1998). Original works that are creative in nature will generally receive greater copyright protection. see e.g. Ringgold v. Black Entertainment Television. Inc., 126 F.3d 70, 80 (2d Cir. 1997).
The second factor, the nature of the copyrighted work, relates to whether the original work is "'creative' as opposed to 'factual,' as well as to whether the work has been previously published." Feiner v. H.R. Industries. 10 F. Supp.2d 310. 314 (S.D.N.Y. 1998). An original work which is creative in nature will generally receive greater copyright protection.
See id. at 464 ("Plaintiff's allegations are those of a standard copyright violation. As support for a Lanham Act claim, they do not show the requisite affirmative action of falsely claiming originality beyond that implicit in any allegedly false copyright."); see Richard Feiner Co. v. H.R. Indus., Inc., 10 F. Supp.2d 310, 316 (S.D.N.Y. 1998) (dismissing Lanham Act claim as duplicative of copyright claim). While Armstrong has contended that the attribution of "Unfinished Sympathy" to Massive Attack constituted a false description of authorship and copyright ownership cognizable under the Lanham Act, a review of both the record and the Complaint reveals that, even when viewed in the light most favorable to Armstrong, his claims under the Lanham Act essentially track those asserted under copyright law.
Accordingly, the Copyright Act preempts plaintiff's three state law claims: accounting, unfair competition, and unjust enrichment. See, e.g., Kregos (1993), 3 F.3d at 666 (unfair competition claims); Richard Feiner Co. v. HR. Indus., Inc., 10 F. Supp.2d 310, 316 (S.D.N.Y. 1998) (accounting and unfair competition claims); Netzer, 963 F. Supp. at 1322 (unjust enrichment claims); Douglas v. Kimberly-Clark Corp., No. Civ.A. 96-2428, 1997 WL 180315, at *3 (E.D.Pa. Apr. 11, 1997) (unfair competition claims); Arden v. Columbia Pictures Indus., Inc., 908 F. Supp. 1248, 1264 (S.D.N.Y. 1995) (accounting, unfair competition, and unjust enrichment claims). B. Applicability of Lanham Act to Copyright Claims
Nor was the infringed work displayed directly next to advertisements, or in a section almost exclusively meant for advertisements. SeeHirsch v. Complex Media, Inc. , No. 18 Civ. 5488, 2018 WL 6985227, at *6 (S.D.N.Y. Dec. 10, 2018) ; Richard Feiner & Co., Inc. v. H.R. Industries, Inc. , 10 F. Supp. 2d 310, 314 (S.D.N.Y. 1998), rev'd on other grounds , 182 F.3d 901 (2d Cir. 1999). A non-sponsored Instagram Story—one of the approximately five a day Ratajkowski posted, Pl. 56.1 Stmt. ¶ 43—would have only trivially affected the value of the Instagram Account.
Nor was the infringed work displayed directly next to advertisements, or in a section almost exclusively meant for advertisements. See Hirsch v. Complex Media, Inc., No. 18 Civ. 5488, 2018 WL 6985227, at *6 (S.D.N.Y. Dec. 10, 2018); Richard Feiner & Co., Inc. v. H.R. Industries, Inc., 10 F.Supp.2d 310, 314 (S.D.N.Y. 1998), rev'd on other grounds, 182 F.3d 901 (2d Cir. 1999). A non-sponsored Instagram Story-one of the approximately five a day Ratajkowski posted, Pl. 56.1 Stmt. ¶ 43-would have only trivially affected the value of the Instagram Account.
Similarly, the court in Richard Feiner & Co. v. H.R. Indus., Inc. found the defendant's use of a copyrighted work lacked "a scholarly or critical purpose," which was reinforced by the fact that it appeared in a "section for special effects advertisers." 10 F. Supp. 2d 310, 314 (S.D.N.Y. 1998), vacated on other grounds, 182 F.3d 901 (2d Cir. 1999). Thus, I need not revisit my analysis of commercial purpose.
This section relates to whether the original work is "`creative' as opposed to `factual,' as well as to whether the work has been previously published." Feiner v. H.R. Industries, 10 F.Supp.2d 310, 314 (S.D.N.Y. 1998). Original works that are creative in nature will generally receive greater copyright protection.
Courts in the Second Circuit and this district repeatedly have barred Lanham Act claims where the plaintiff's allegations merely restate his copyright claims and 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); see alsoLipton v. Nature Co., 71 F.3d 464 (2d Cir.1995); Kregos v. Associated Press, 937 F.2d 700 (2d Cir.1991); Richard Feiner & Co. v. H.R. Indus., Inc., 10 F.Supp.2d 310 (S.D.N.Y.1998). Here, plaintiff fails to plead facts adequate to meet the burden of proof for a Lanham Act violation.
Defendants' summary judgment motions for Plaintiff's unfair competition claims are granted as well. Plaintiff's unfair competition claims are based on the same conduct as its copyright claims, and thus are preempted by federal law. See Oboler v. Goldin, 714 F.2d 211, 213 (2d Cir. 1983);see also Richard Feiner Co., 10 F. Supp.2d 310, 316 (S.D.N.Y. 1998) ("Section 301 of the Copyright Act provides for preemption of all state claims that are tantamount to those falling within the scope and subject matter of copyright"). CONCLUSION