A blog about patent, copyright and trademark law in the U.S. District Court
for the Southern District of New York

Court Refuses to Remand Complaint Finding Likelihood of Copyright Preemption

In a February 16, 2017 ruling, Judge Katherine B. Forrest declined to remand a complaint alleging claims for unjust enrichment, conversion and restitution, and an accounting arising from the defendant's exploitation of a taped ice skating performance by the plaintiff, finding that the Copyright Act likely preempted the claims.  First, the Court found that the taped performance was subject to copyright protection on either of two grounds, "that the motion picture recording of [the plaintiff's] performance is a work entitled to copyright protection," and that the plaintiff's ice skating performance is "akin to a choreographed dance" which is entitled to protection.  Judge Forrest further found that the plaintiff's claims, which are based on the defendant's use and exploitation of the recorded performance, essentially allege that the defendant violated the plaintiff's reproduction and distribution rights "that are encompassed within the bundle of rights afforded to copyright owners,"  Lastly, the Court concluded that the plaintiff's claim "does not contain an extra element in addition to reproduction or distribution," which would avoid copyright preemption.
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