Walkie Check Productions, LLC v. ViacomCBS Inc. et al

Filing 71

OPINION AND ORDER re: 57 MOTION to Dismiss / Defendants' Motion to Dismiss Plaintiff's Complaint. filed by BET Productions IV, LLC, ViacomCBS Inc., Black Entertainment Television LLC. For the foregoing reasons, Defendant s' motion to dismiss is GRANTED IN PART and DENIED IN PART. Plaintiff has adequately stated a claim for copyright infringement and may thus pursue discovery on this claim. Plaintiff has not, however, stated a claim for breach of implied contr act. Additionally, the Court dismisses Plaintiff's quantum meruit and unjust enrichment claims as preempted by federal law. Defendants are directed to file an answer to the Complaint on or before July 11, 2022. Further, the parties are directed to file a joint status letter regarding next steps in this case and a proposed case management plan on or before July 18, 2022. The Clerk of Court is directed to terminate the pending motion at docket entry 57. SO ORDERED. (BET Productions IV, LLC answer due 7/11/2022; Black Entertainment Television LLC answer due 7/11/2022; ViacomCBS Inc. answer due 7/11/2022.) (Signed by Judge Katherine Polk Failla on 6/27/2022) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
WALKIE CHECK PRODUCTIONS, LLC,
Plaintiff,
-v.-

21 Civ. 1214 (KPF)

VIACOMCBS INC., BLACK ENTERTAINMENT
TELEVISION LLC d/b/a BET Networks, and
BET PRODUCTIONS IV, LLC,

OPINION AND ORDER

Defendants.
KATHERINE POLK FAILLA, District Judge: 1
Plaintiff Walkie Check Productions, LLC (“Walkie Check”) is the owner of
a registered copyright in a treatment for a show entitled “House Party.” In
2015, Plaintiff pitched the idea for House Party to several media executives
affiliated with Defendants ViacomCBS Inc. (“Viacom”), Black Entertainment
Television LLC d/b/a BET Networks (“BET”), and BET Productions IV, LLC
(“BET IV,” and together with Viacom and BET, “Defendants”) in the hopes of
negotiating a deal to launch the show on the BET network. Despite years of
serious negotiations, the parties did not reach a deal and Plaintiff’s “House
Party” never appeared on BET. In early 2020, much to Plaintiff’s chagrin,
Defendants launched their own “House Party” series on BET, which Plaintiff
contends is virtually identical to their copyrighted work. For this conduct,

1

Sarika Bhattacharjee, a rising second-year student at Columbia Law School and an
intern in my Chambers, provided substantial assistance in researching and drafting
this Opinion.

Plaintiff asserts claims for copyright infringement, breach of implied contract,
and unjust enrichment.
Defendants now move to dismiss Plaintiff’s claims pursuant to Federal
Rule of Civil Procedure 12(b)(6). For the reasons stated in the remainder of this
Opinion, the Court grants in part and denies in part Defendants’ motion.
BACKGROUND 2
A.

Factual Background
1.

The Parties

Walkie Check is a limited liability company organized and principally
based in New York. (Compl. ¶ 5). Defendants are three affiliated media and
entertainment companies. (Id. at ¶¶ 6-8). Viacom, a Delaware corporation
with its principal place of business in New York, sits at the top of the corporate
structure and holds a controlling interest in BET and BET IV. (Id. at ¶ 6). BET
is a limited liability company, organized in the District of Columbia and with its
principal place of business in New York. (Id. at ¶ 7). BET is a subsidiary of
Viacom that provides entertainment, music, news, and public-affairs television

2

This Opinion draws its facts from the Complaint (“Compl.” (Dkt. #1)), the well-pleaded
allegations of which are taken as true on this motion. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The Court also relies, as appropriate, on certain of the exhibits
attached to the Declaration of Wook Hwang (“Hwang Decl., Ex. [ ]” (Dkt. #59)) and the
Declaration of Steven Lebowitz (“Lebowitz Decl., Ex. [ ]” (Dkt. #65)). Among these
exhibits is a copy of Plaintiff’s copyrighted work (Hwang Decl., Ex. B (“Treatment”)), and
materials comprising Defendants’ allegedly infringing work (id., Ex. C, D), all of which
the Court may consider on this motion. See Effie Film, LLC v. Pomerance, 909 F. Supp.
2d 273, 298 (S.D.N.Y. 2012) (“It is well established that courts may take judicial notice
of the works at issue in a copyright case.”).
For ease of reference, the Court refers to Defendants’ memorandum of law in support of
their motion to dismiss as “Def. Br.” (Dkt. #58); Plaintiff’s memorandum of law in
opposition to Defendants’ motion to dismiss as “Pl. Opp.” (Dkt. #64); and Defendants’
reply memorandum of law as “Def. Reply” (Dkt. #70).

2

programming. (Id.). BET IV is a subsidiary of BET and a limited liability
company that is organized in Delaware and principally based in New York. (Id.
at ¶ 8).
2.

The Copyrighted Work: Plaintiff’s “House Party”

The copyrighted work at issue in this case is Plaintiff’s Treatment for a
show called House Party. (Treatment). Plaintiff registered the Treatment with
the United States Copyright Office on May 26, 2020. (Compl. ¶ 82).
The Treatment provides a detailed description of the format for a show
centered on a “raucous” house party at a Manhattan brownstone, replete with
crowds of partygoers, celebrity guests, and musical performances. (Treatment
¶¶ A1, A4, D1, D2, D4). The show opens in the midst of the party, portrayed
through the lens of a hostess live-streaming the scene on her smartphone. (Id.
at ¶ A1). At various points, the viewer’s perspective toggles between the
hostess’s “shooting in selfie-friendly vertical aspect ratio framing,” and a more
traditional horizontal-aspect ratio sourced from tripod-mounted cameras
throughout the brownstone. (Id. at ¶¶ A1, A5). The viewer follows the hostess
as she weaves through different areas of the brownstone, filming musical
performances, chatting with musical artists, and having unscripted
interactions with celebrity guests. (Id. at ¶¶ A4, B2-B6). The Treatment
describes the brownstone as “packed to capacity,” with an “off-the-hook” and
“insane” atmosphere. (Id. at ¶¶ A4, D1, D2). The 20-minute episode ends with
a black window shade slowly descending on the screen, which eventually cuts
to black. (Id. at ¶ D4).
3

3.

The Parties’ Negotiations over House Party

Plaintiff introduced the House Party concept to Defendants on July 8,
2015, when Walkie Check CEO Joshua Lebowitz, Steven Lebowitz, 3 and Tad
Low, proprietor of the separate company Tad2000, Inc. d/b/a Spin the Bottle
(“STB”), met with BET representative Michael Siegman. (Compl. ¶ 13). At this
meeting, Plaintiff and STB pitched Siegman on the House Party show, which
they expected to film at a Manhattan brownstone owned by STB. (Id.).
Throughout the summer of 2015, Plaintiff and Defendants continued to explore
the House Party concept by organizing meetings, conference calls, and guided
tours of the brownstone. (Id. at ¶¶ 15-18). Siegman and Constance “Connie”
Orlando, BET’s then-Senior Vice President of Specials, Music, and News, were
two of Plaintiff’s primary contacts throughout the House Party negotiations.
(See, e.g., id. at ¶¶ 15, 17-18).
On September 30, 2015, Plaintiff sent Defendants the production
materials for 12 episodes of House Party, which materials included a “One
Sheet” and the Treatment for the show. (Compl. ¶ 19; Hwang Decl., Ex. A
(“One Sheet”); Treatment). 4 After receiving these materials, Defendants
continued to engage Plaintiff on developing House Party and took steps to
schedule a live-stream musical performance at the brownstone. (Compl. ¶¶ 19-

3

References in this Opinion to “Lebowitz” are to Steven Lebowitz unless otherwise
indicated.

4

As its description suggests, the One Sheet contains a one-page description of the House
Party concept, which is advertised as a “new documentary series capturing the
spontaneous action inside a real 19th-century brownstone under the Empire State
Building in the heart of Manhattan.” (One Sheet). Plaintiff did not register the One
Sheet with the United States Copyright Office.

4

20). The parties’ negotiations largely stalled throughout the fall of 2015 and
into 2016, because Defendants repeatedly postponed the contemplated livestream event at the brownstone. (Id. at ¶¶ 21-28). Finally, on March 23, 2016,
Defendants met with Plaintiff to apologize for the delays, and reiterated their
determination to bring House Party to fruition with BET. (Id. at ¶ 29).
Following this meeting, in April and May 2016, the parties worked on a revised
budget proposal and Defendants received another walk-through of the
brownstone. (Id. at ¶¶ 30-33).
On May 5, 2016, Defendants sent Plaintiff a draft agreement for the
House Party project. (Compl. ¶ 34). After marking up the agreement and
exchanging drafts, Plaintiff remained concerned about several issues, including
Defendants’ ownership of the House Party concept; Defendants’ ability to take
House Party elsewhere without Plaintiff’s involvement; the omission of a
termination or “break” fee for House Party, despite being engaged in
negotiations for nearly a year; and Defendants’ failure to include profit-sharing
from sponsorships. (Id. at ¶ 37). Plaintiff took particular issue with the
portions of the draft agreement that purported to transfer to BET IV all
elements created, or to be created at any time, in connection with House Party
and that established Defendants as the author and exclusive owner of all
interest in the House Party materials. (Id. at ¶¶ 38-39).
The parties continued to negotiate for the next several weeks, until
July 8, 2016, when Siegman emailed Plaintiff to say that Defendants had
decided not to move forward with House Party. (Compl. ¶ 41). Approximately
5

two weeks later, Orlando emailed Lebowitz acknowledging Plaintiff’s frustration
that the efforts it had expended had not yielded success, while observing that
“we ALL tried to get this done (your side and ours) but unfortunately we
couldn’t get it done in the right time frame.” (Id. at ¶ 45).
On August 16, 2016, Lebowitz again reached out to Siegman in an
attempt to reconnect on House Party. (Compl. ¶ 46). For the next year or so,
Lebowitz continued to email Siegman, Orlando, and other of Defendants’
representatives about reviving the show. (Id. at ¶¶ 47-56). Finally, on
August 15, 2017, Lebowitz received an email from Yomi Desalu of BET’s Music
Programming and Specials team, informing him that Defendants were “going to
pass on the opportunity.” (Id. at ¶ 57). In this email, Desalu cited a lack of
“resources to engage” as the reason for Defendants’ disinterest in continuing
negotiations over House Party. (Id.). The next day, Desalu sent a follow-up
email to Lebowitz, explaining that Defendants “wanted to close this chapter so
that [Plaintiff] could explore” the House Party idea with others. (Id. at ¶ 59).
In the fall of 2017, Lebowitz again sought to rekindle the House Party
negotiations by emailing Orlando, who had just been named BET’s Executive
Vice President, Head of Programming. (Compl. ¶¶ 66-67). Thereafter, Lebowitz
continued to send emails to Siegman and Orlando, but failed to gain much
traction. (Id. at ¶¶ 68-71). On March 30, 2018, Siegman shut down this latest
round of House Party talks with an email to Lebowitz that said “[t]he show has
no movement at this time. If you have an opportunity to shop the show to
another network, you should do that.” (Id. at ¶ 71). Notwithstanding this
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rejection, the parties continued to correspond about House Party throughout
2018, 2019, and into the early parts of 2020. (Id. at ¶ 72).
4.

The Allegedly Infringing Work: BET’s “House Party”

On March 29, 2020, Defendants launched House Party on BET’s
Instagram Live. (Compl. ¶ 75). Plaintiff asserts that the release of this series
reflected Defendants’ decision to move forward with the House Party concept
without crediting or involving Plaintiff in any way. (Id. at ¶¶ 74-75). For their
part, Defendants contend that the House Party series is based on an entirely
different — and much broader — concept than that over which they had been
negotiating with Plaintiff for the previous five years. 5
Defendants advertise BET’s “House Party IG Live series” in their
promotional materials as “featur[ing] daily programming designed to inspire,
entertain[,] and empower our community.” (Hwang Decl., Ex. D at 1). The
series involved an array of guests and forms of entertainment, which ranged
“[f]rom musical performances and DJ sets to master classes and lifestyle
hacks[.]” (Id.). To illustrate the thematic breadth of the series, the first episode
centered on Christian gospel music (id. at 1 (Kirk Franklin, Mar. 29, 2020)),

5

In presenting their allegedly infringing work, Defendants have submitted a DVD that
contains 25 individual files, comprising all of the recorded episodes of BET’s House
Party. (Hwang Decl., Ex. C). Defendants have also included all available promotional
flyers for episodes of BET’s House Party. (Id., Ex. D). There are flyers for some, but not
all, of the recorded episodes. There are also flyers for episodes for which a recording
does not exist. The Court’s description of Defendants’ work is derived from its review of
these materials.
For consistency’s sake, the Court cites to recordings or flyers that correspond to specific
episodes of BET’s House Party using the following convention: ([Guest Name], [Episode
Date]).

7

while subsequent episodes featured, among other things, chefs baking in their
home kitchen (id., Ex. C (Southern Girl Desserts, Apr. 15, 2020)); a six-minute
tutorial for a viral TikTok dance (id., Ex. C (Queen Keke, May 5, 2020)); a
board-certified doctor who worked in New York during the COVID-19 pandemic
(id., Ex. D at 3 (Dr. Alexea Gaffney, Mar. 31, 2020)); the founders of a men’s
collective discussing mental health topics (id., Ex. C (Mastermind Connect,
June 1, 2020)); and various “happy hours” with DJs (see, e.g., id., Ex. D at 9
(DJ Kiss, Apr. 10, 2020); id. at 22 (DJ R-Tistic, May 1, 2020); id. at 25 (DJ
Tendaji Lathan, May 15, 2020)).
Just as the themes of the episodes vary, so too do their tone, duration,
and format. For instance, a subset of episodes is called “Real Talk,” which
comprises unscripted conversations with guest speakers and celebrities,
covering topics that span from contemporary political issues to stress-coping
strategies during the pandemic. (See, e.g., Hwang Decl., Ex. D at 30 (Kailee
Scales & Deepak Chopra, May 29, 2020); id. at 42 (DeRay McKesson & Rodney
Rikai, Oct. 22, 2020)). Another group of episodes is introduced as “living room
fitness” and involves personal trainers or yoga instructors filming virtual
fitness classes. (See, e.g., id., Ex. D at 33 (Claudine Cooper, July 13, 2020);
id., Ex. C (Phyllis Frempong, July 28, 2020)). Yet another batch of episodes is
called “Couchside Concerts,” which entails a sort of virtual listening party with
live performances by musical artists. (See, e.g., id., Ex. C (Adé, June 8, 2020);
id., Ex. D at 40 (Sebastian Mikael, Sept. 4, 2020)). Across all of these genres of
episodes, certain featured guests uploaded a video in a “selfie-style,” vertical
8

aspect ratio, while others are filmed in a more traditional horizontal aspect
ratio. (Compare, e.g., id., Ex. C (SAMMIE, Aug. 12, 2020) (musical artist, selfiestyle video), with, e.g., id. (Dave Anderson, Aug. 24, 2020) (business analyst,
horizontal aspect ratio)).
Defendants explain that episodes of BET’s House Party were livestreamed on Instagram Live and subsequently distributed on Facebook, where
only some of them were recorded. (Def. Br. 6). According to Plaintiff’s tally,
there were at least 86 live-streamed episodes of BET’s House Party. (See
Lebowitz Decl., Ex. 3). The final episode of BET’s House Party was streamed on
January 20, 2021. (Hwang Decl., Ex. D at 43).
B.

Procedural Background
Plaintiff initiated this action with the filing of the Complaint on

February 10, 2021. (Dkt. #1). On April 19, 2021, Defendants filed a letter
indicating their intent to move to dismiss the Complaint. (Dkt. #15). Plaintiff
filed a responsive letter on April 23, 2021, which also advised the Court of its
contemplated motion to disqualify defense counsel. (Dkt. #19). Defendants
filed an additional letter on April 26, 2021, denying the existence of the
purported conflict raised by Plaintiff. (Dkt. #20). The following day, the Court
convened a conference, at which it set a briefing schedule for Plaintiff’s motion
to disqualify. (See Minute Entry for April 27, 2021). The Court rendered an
oral decision denying Plaintiff’s disqualification motion on November 3, 2021.
(Dkt. #44 (order), 68 (transcript)).

9

A week following its decision on the disqualification motion, on
November 10, 2021, the Court endorsed the parties’ proposed briefing schedule
for Defendants’ anticipated motion to dismiss. (Dkt. #47). Pursuant to that
briefing schedule, Defendants filed their motion to dismiss and supporting
papers on January 10, 2022. (Dkt. #57-59). Plaintiff filed its opposition
papers on February 28, 2022. (Dkt. #64-65). Defendants filed their reply brief
on March 28, 2022. (Dkt. #70). Accordingly, Defendants’ motion to dismiss is
fully briefed and ripe for the Court’s consideration.
DISCUSSION
Plaintiff asserts three claims against Defendants for their unilateral
decision to launch BET’s House Party: (i) copyright infringement, in violation of
Plaintiff’s rights under the Copyright Act, 17 U.S.C. §§ 106 and 501; (ii) breach
of implied contract; and, if the Court denies the existence of an implied
contract, (iii) quantum meruit and unjust enrichment. The Court sets forth the
applicable legal standards for a motion to dismiss before assessing each of
Plaintiff’s claims.
A.

Motions to Dismiss Pursuant to Federal Rule of Civil Procedure
12(b)(6)
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is facially plausible
‘when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.’”
10

Allco Fin. Ltd. v. Klee, 861 F.3d 82, 94-95 (2d Cir. 2017) (quoting Iqbal, 556
U.S. at 678). “[A]lthough a court must accept as true all of the allegations
contained in a complaint, that tenet is inapplicable to legal conclusions, and
threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009) (internal quotation marks, alterations, and citation omitted); see also
Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008) (explaining that a court
need not accept “conclusory allegations or legal conclusions masquerading as
factual conclusions”).
A court adjudicating a motion to dismiss under Rule 12(b)(6) “may review
only a narrow universe of materials.” Goel v. Bunge, Ltd., 820 F.3d 554, 559
(2d Cir. 2016). This narrow universe includes the “facts stated on the face of
the complaint, documents appended to the complaint or incorporated in the
complaint by reference, and matters of which judicial notice may be taken.” Id.
(internal alterations and citation omitted); see also United States ex rel.
Foreman v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021). Where the disputed
works in a copyright action are attached to or incorporated by reference in the
complaint, a district court can “consider the similarity between those works in
connection with a motion to dismiss, because the court has before it all that is
necessary in order to make such an evaluation.” Peter F. Gaito Architecture,
LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010).
On this motion, the Court considers several additional documents that
are either incorporated by reference in or integral to the Complaint. These
11

documents are: (i) the One Sheet (Hwang Decl., Ex. A); (ii) the Treatment (id.,
Ex. B); (iii) the 25 video files of the recorded episodes of BET’s House Party (id.,
Ex. C); (iv) the promotional flyers for BET’s House Party (id., Ex. D); (v) various
email correspondence between and among Plaintiff, Low, and Defendants (id.,
Ex. E-F) 6; and (vi) a list compiled by Plaintiff of BET’s House Party livestreams,
with notations to indicate whether each episode was included in Defendants’
video files or promotional flyers (Lebowitz Decl., Ex. 3). Finally, the Court may
also consider the search results on the Internet Movie Database (IMDb) website
for works with the title match “House Party,” as this is an appropriate subject
of judicial notice. (Hwang Decl., Ex. H). See Wells Fargo Bank, N.A. v. Wrights
Mill Holdings, LLC, 127 F. Supp. 3d 156, 166-67 (S.D.N.Y. 2015) (collecting
cases to support taking judicial notice of publicly available LexisNexis database
search); see also United States v. Bari, 599 F.3d 176, 180 (2d Cir. 2010)
(upholding judicial notice where “a judge need only take a few moments to
confirm [her] intuition by conducting a basic Internet search”).
B.

Copyright Infringement
Plaintiff’s first cause of action is for copyright infringement, pursuant to

the Copyright Act, 17 U.S.C. §§ 106 and 501, for Defendants’ alleged violation
of Plaintiff’s exclusive rights to the House Party Treatment. For the reasons
discussed below, this claim survives Defendants’ motion to dismiss.

6

The Court does not consider the June 15, 2016 email, attached as exhibit G to the
Hwang Declaration, as it is neither referenced in nor integral to the Complaint.
Moreover, the Court does not consider the factual assertions contained in the Lebowitz
Declaration, except to the extent they are contained in the Complaint.

12

1.

Applicable Law

The Copyright Act vests the owner of a copyrighted work with “the
exclusive right to ... reproduce, perform publicly, display publicly, prepare
derivative works of, and distribute copies of, his copyrighted work.” Arista
Records, LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010) (citing 17 U.S.C.
§ 106). To state a claim for copyright infringement, “a plaintiff with a valid
copyright must demonstrate that: [i] the defendant has actually copied the
plaintiff’s work; and [ii] the copying is illegal because a substantial similarity
exists between the defendant’s work and the protectible elements of plaintiff’s.”
Peter F. Gaito, 602 F.3d at 63 (quoting Hamil Am. Inc. v. GFI, 193 F.3d 92, 99
(2d Cir. 1999)).
With respect to the first prong of the copyright infringement analysis, a
plaintiff “may prove copying by direct evidence, or by showing that the
defendant had access to the plaintiff’s work and that the works are similar
enough to support an inference that the defendant copied the plaintiff’s work.”
Hines v. W Chappell Music Corp., No. 20 Civ. 3535 (JPO), 2021 WL 2333621, at
*2 (S.D.N.Y. June 8, 2021) (quoting Fisher-Price, Inc. v. Well-Made Toy Mfg.
Corp., 25 F.3d 119, 123 (2d Cir. 1994)); see also Jorgensen v. Epic/Sony
Records, 351 F.3d 46, 51 (2d Cir. 2003) (“[A] plaintiff may establish copying
circumstantially by demonstrating that the person who composed the
defendant’s work had access to the copyrighted material, and that there are
similarities between the two works that are probative of copying[.]” (internal
quotation marks and citations omitted)).
13

As to the second prong of the analysis, “questions of non-infringement
have traditionally been reserved for the trier of fact.” Peter F. Gaito, 602 F.3d at
63 (internal citations omitted). Nevertheless, “where the court has before it all
that is necessary to make a comparison of the works in question, it may rule
on substantial similarity as a matter of law on a Rule 12(b)(6) motion to
dismiss.” King Zak Indus., Inc. v. Toys 4 U USA Corp., No. 16 Civ. 9676 (CS),
2017 WL 6210856, at *4 (S.D.N.Y. Dec. 8, 2017) (quoting Effie Film, LLC v.
Pomerance, 909 F. Supp. 2d 273, 290-91 (S.D.N.Y. 2012)). This is because
“[w]hen a court is called upon to consider whether the works are substantially
similar, no discovery or fact-finding is typically necessary, because ‘what is
required is only a visual [or aural] comparison of the works.’” Peter F. Gaito,
602 F.3d at 64 (citation omitted). If in making such a comparison, “the district
court determines that the two works are ‘not substantially similar as a matter
of law,’ the district court can properly conclude that the plaintiff’s complaint,
together with the works incorporated therein, do not ‘plausibly give rise to an
entitlement to relief.’” King Zak Indus., 2017 WL 6210856, at *4 (quoting Peter
F. Gaito, 602 F.3d at 64).
The substantial similarity prong entails a highly nuanced, detailed
inquiry that is tailored to the works at issue in any given case. Indeed, courts
have acknowledged that “[t]he determination of the extent of similarity that will
constitute a substantial, and hence infringing, similarity presents one of the
most difficult questions in copyright law, and one that is the least susceptible
of helpful generalizations.” Horizon Comics Prods., Inc. v. Marvel Entm’t, LLC,
14

246 F. Supp. 3d 937, 940 (S.D.N.Y. 2017) (citation omitted); Hines, 2021 WL
2333621, at *2 (same); see also Peter Pan Fabrics, Inc. v. Martin Weiner Corp.,
274 F.2d 487, 489 (2d Cir. 1960) (“The test for infringement of a copyright is of
necessity vague.”).
The first step in determining whether substantial similarity exists is
selecting the appropriate test. “Where the works in question contain entirely
protectable elements, the standard test is whether ‘an ordinary observer,
unless he set out to detect the disparities, would be disposed to overlook them,
and regard [the] aesthetic appeal as the same.’” King Zak Indus., 2017 WL
6210856, at *4 (quoting Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111 (2d
Cir. 2001)). On the other hand, when particular works include a combination
of protectable and unprotectable elements, the analysis is “more discerning.”
Horizon Comics, 246 F. Supp. 3d at 941; see also Peter F. Gaito, 602 F.3d at 66
(“[W]e have noted that when faced with works that have both protectible and
unprotectible elements, our analysis must be ‘more discerning.’” (internal
quotation marks omitted)). This more discerning ordinary observer test calls
for courts to “attempt to extract the unprotectible elements from …
consideration and ask whether the protectible elements, standing alone, are
substantially similar.” Peter F. Gaito, 602 F.3d at 66 (quoting Knitwaves, Inc. v.
Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir. 1995)). “To apply the more
discerning ordinary observer test, ‘the Court looks to whether the alleged
similarities are due to protected aesthetic expressions original to the allegedly
infringed work, or whether the similarity is to something in the original that is
15

free for the taking.’” King Zak Indus., 2017 WL 6210856, at *4 (quoting Horizon
Comics, 246 F. Supp. 3d at 941).
Irrespective of which of the above tests applies, the Second Circuit has
“disavowed any notion” that courts are “required to dissect [the works] into
their separate components, and compare only those elements which are in
themselves copyrightable.” Peter F. Gaito, 602 F.3d at 66 (quoting Knitwaves,
Inc., 71 F.3d at 1003). Rather, “[t]he inquiry is more holistic, as the Court
‘compares the contested work’s total concept and overall feel with that of the
allegedly infringed work, as instructed by our good eyes and common sense.”
Horizon Comics, 246 F. Supp. 3d at 941 (internal alterations omitted) (quoting
Effie Film, 909 F. Supp. 2d at 292). This approach permits a finding of
copyright infringement where a defendant has “parrot[ed] properties that are
apparent only when numerous aesthetic decisions embodied in the plaintiff’s
work of art — the excerpting, modifying, and arranging of unprotectible
components — are considered in relation to one another.” Peter F. Gaito, 602
F.3d at 66 (internal alterations omitted) (quoting Tufenkian Imp./Exp. Ventures,
Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 134 (2d Cir. 2003)). The inquiry
necessarily focuses on whether the alleged infringer has misappropriated “the
author’s original contributions” to the subject work, that is, “the original way in
which the author has ‘selected, coordinated, and arranged’ the elements of his
or her work.” Knitwaves, Inc., 71 F.3d at 1004 (quoting Feist Publ’ns, Inc. v.
Rural Tel. Serv. Co., 499 U.S. 340, 358 (1991)).

16

2.

Plaintiff Has Stated a Claim for Copyright Infringement

Defendants appear to concede for purposes of this motion that Plaintiff
has adequately alleged their actual copying of Plaintiff’s protected work. (Def.
Br. 8 (“On motions to dismiss, the Court can assume that actual copying has
occurred to analyze whether the parties’ works are substantially similar with
respect to their protectable elements.”)). 7 The parties disagree on other facets
of the infringement analysis, namely whether Defendants copied any
protectable element of Plaintiff’s work, and whether the total concept and feel of
the two works support a finding of substantial similarity. On the record now
before it, the Court is without sufficient information to determine as a matter of
law that “no reasonable jury, properly instructed, could find that the two works
are substantially similar.” Peter F. Gaito, 602 F.3d at 63 (citation omitted).
a.

Plaintiff’s House Party Contains Both Protectable and
Unprotectable Elements

The Court begins by determining whether the standard or more
discerning ordinary observer test applies in this case. To resolve this threshold

7

Even if Defendants had challenged Plaintiff’s allegations of actual copying, the
Complaint includes allegations that Defendants “had access to the copyright material”
and that “there are similarities between the two works that are probative of copying.”
Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir. 2003). For one, Plaintiff
alleges that during its years of negotiations with Defendants, it shared extensive
information about the show’s concept with Defendants. (See, e.g., Compl. ¶¶ 19-28).
Plaintiff also alleges that BET’s House Party mimics its work in several ways, including,
among other things, by using (i) the name “House Party”; (ii) a logo on two lines with all
capitalized, sans serif letters; (iii) livestreams from mobile devices; (iv) distribution via
social media; (v) a real-time, unscripted format; (vi) advertising via “invitations” to a
“party”; and (vii) a fluid aspect ratio that oscillates between vertical and horizontal. (Pl.
Opp. 4, 12-14; Compl. ¶¶ 74-78). See, e.g., Int’l Diamond Imps., Inc. v. Oriental Gemco
(N.Y.), Inc., 64 F. Supp. 3d 494, 511 (S.D.N.Y. 2014) (“Similarities between the two
works are probative [of copying] only if the similarities would not be expected to arise if
the works had been created independently.” (internal quotation marks omitted)).

17

issue, the Court must determine whether Plaintiff’s House Party comprises only
protectable elements or a mix of protectable and unprotectable elements.
In moving to dismiss, Defendants argue that the alleged similarities
between the works at issue are not protectable expression. (Def. Br. 10-12).
More specifically, Defendants contend that Plaintiff cannot assert copyright
protection over the title “House Party,” the use of a vertical-aspect ratio, a
roster of performers, or a particular distribution schedule. (Id.). Defendants
further argue that since these unprotectable features exhaust the similarities
that exist between the two works, the remaining protectable features of the
Treatment are not substantially similar to Defendants’ work. (Id. at 13-14).
Plaintiff maintains that it does not seek to protect a “general idea,” but rather
“the manner in which [it] selected, coordinated, and arranged the elements” of
its work. (Pl. Opp. 8-9).
“A fundamental rule of copyright law is that it protects only ‘original
works of authorship,’ those aspects of the work that originate with the author
himself.” Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95, 102 (2d Cir. 2014)
(quoting 17 U.S.C. § 102(a)). “Everything else in the work, the history it
describes, the facts it mentions, and the ideas it embraces, are in the public
domain free for others to draw upon.” Id. “It is the peculiar expressions of that
history, those facts, and those ideas that belong exclusively to their author.”
Id. “This principle, known as the ‘idea/expression dichotomy,’ ‘assures authors
the right to their original expression, but encourages others to build freely

18

upon the ideas and information conveyed by a work.’” Peter F. Gaito, 602 F.3d
at 67 (quoting Feist, 499 U.S. at 349-50).
Still, “[a] work may be copyrightable even though it is entirely a
compilation of unprotectable elements.” Wolstenholme v. Hirst, 271 F. Supp.
3d 625, 635 (S.D.N.Y. 2017) (citing Yurman Design, 262 F.3d at 109;
Knitwaves, Inc., 71 F.3d at 1003-04). As noted above, it is the author’s original
contributions that are entitled to copyright protection, i.e., the way the author
has “selected, coordinated, and arranged” the elements of his or her work.
Knitwaves, Inc., 71 F.3d at 1004. In other words, “[t]he Copyright Act protects
original and minimally creative selection of preexisting, unprotected materials
(such as facts) for inclusion in a work, as well as original and creative
arrangement of those materials.” Matthew Bender & Co. v. West Pub. Co., 158
F.3d 674, 681 (2d Cir. 1998) (citing Eckes v. Card Prices Update, 736 F.2d 859,
863 (2d Cir. 1984)).
Defendants do not contest that the Treatment contains expressive
elements that are subject to copyright protection. (Def. Reply 3). 8 At the same
time, Plaintiff does not explicitly dispute that the Treatment also contains
unprotectable elements. For instance, Plaintiff cannot predicate its copyright
infringement claim on Defendants’ use of the common title “House Party.” See,
e.g., Lewinson v. Henry Holt & Co., LLC, 659 F. Supp. 2d 547, 569 (S.D.N.Y.

8

Additionally, the copyright registration that Plaintiff received from the United States
Copyright Office stands as prima facie evidence of the protectability of its work.
(Treatment). See Boisson v. Banian, Ltd., 273 F.3d 262, 268 (2d Cir. 2001) (“Plaintiffs’
certificates of registration constitute prima facie evidence of the validity not only of their
copyrights, but also of the originality of their works.”).

19

2009) (“[T]he title of a work cannot form the basis for a copyright infringement
claim.”); Moody v. Morris, 608 F. Supp. 2d 575, 579 (S.D.N.Y. 2009) (“[I]t is
axiomatic that words, short phrases, titles, and slogans are not subject to
copyright, even if they can be trademarked.”), aff’d, 407 F. App’x 434 (Fed. Cir.
2011) (unpublished per curiam decision). 9 Furthermore, any copyright
protection of the Treatment cannot confer a monopoly over the medium of livestreaming, or the general use of a vertical camera orientation. See Fulks v.
Knowles-Carter, 207 F. Supp. 3d 274, 281 (S.D.N.Y. 2016) (“Plaintiff’s alleged
similarities in orientation and camera angle — ‘left’ facing and shot ‘from the
left’ — … are so general that they rise to the level of unprotected ideas.”).
Moreover, any appeal to a “similar roster of performers” or a similar
“distribution schedule” cannot advance Plaintiff’s infringement argument, as
the Treatment makes no reference whatsoever to a roster of performers or a
distribution schedule. (See Treatment; see also Def. Br. 12).
Plaintiff contends that its Treatment represents an aggregation of several
creative choices that, when assessed together, is entitled to copyright
protection. These choices include, but are not necessarily limited to, Plaintiff’s
decision to present a show about a house party using: (i) livestreaming from
mobile devices; (ii) real-time interaction and distribution via social media;
(iii) an organic and unscripted format; (iv) a hybrid aspect ratio that switches

9

Indeed, there are at least 68 other works that share the title of “House Party,” as
evidenced by a search of the Internet Movie Database (IMDb). (Hwang Decl., Ex. H).
See Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1072 (2d Cir. 1992) (“[T]he ‘ordinary’
phrase may be quoted without fear of infringement[.]”).

20

between a selfie-style vertical aspect ratio and a more traditional horizontal
aspect ratio; and (v) intimate viewer access. (Pl. Opp. 4, 12-14). While none of
these elements, in and of themselves, is protectable, the Court agrees that the
sum total of Plaintiff’s artistic choices in the Treatment constitutes a
protectable work under copyright law. See Yurman, 262 F.3d at 109
(“Copyright law may protect a combination of elements that are unoriginal in
themselves.”).
The Court is convinced that Plaintiff’s copyrighted work contains both
protectable and unprotectable elements. Therefore, the Court agrees with
Defendants that the “more discerning” ordinary observer test is the appropriate
test to determine whether Defendant’s infringing work is substantially similar
to the Treatment. See, e.g., Shull v. TBTF Prods. Inc., No. 18 Civ. 12400 (GBD),
2019 WL 5287923, at *9 (S.D.N.Y. Oct. 4, 2019) (applying “more discerning”
substantial similarity analysis where subject work — book that blends fiction
with author’s personal experiences — contains both protectable and
unprotectable elements); Horizon Comics, 246 F. Supp. 3d at 942-43 (same, in
the context of depiction of superhero in promotional poster).
b.

The Court Cannot Conclude As a Matter of Law That
There Is No Substantial Similarity Between the Subject
Works

Defendants argue that after removing the unprotectable elements from
the analysis, as called for by the “more discerning” ordinary observer test, a
comparison of the total concept and feel of the subject works demonstrates
that they are entirely dissimilar. (Def. Br. 13-14). While Defendants point out
21

salient distinctions between the concepts and the feel of the two works, the
record is insufficient to permit the Court to determine, as a matter of law, that
there is no substantial similarity between them.
Undoubtedly, there are notable differences in the total concept and feel of
Plaintiff’s House Party and Defendants’ House Party, as reflected by the
materials available to the Court on this motion. Perhaps the most obvious
difference is that Plaintiff’s House Party involves a literal party, characterized
by loud music, large crowds, and celebrity intrigue. (See generally Treatment).
BET’s House Party, on the other hand, does not center on a raucous party, but
rather seeks to bring varied forms of entertainment to a social media audience.
In fact, Defendants’ work does not appear to have any consistent theme
between episodes, as each livestream session has a different focus and feel,
depending on the featured guest.
Notwithstanding these readily observable differences, the incompleteness
of the record precludes dismissal of Plaintiff’s copyright claim. Defendants
have submitted to the Court on this motion only 25 recorded episodes of BET’s
House Party, a fraction of the total number of livestreamed episodes of
Defendants’ series. (See Lebowitz Decl., Ex. 3 (chronicling, without purporting
to be exhaustive, 86 episodes of BET’s House Party)). Defendants also
represent that they have submitted all available promotional flyers, which
materials are also not coextensive with the list of episodes compiled by Plaintiff.
(Compare Hwang Decl., Ex. D, with Lebowitz Decl., Ex. 3). At this stage of the
proceedings, the Court is without sufficient information to even determine with
22

precision the total number of episodes of BET’s House Party. Given these
deficits, the Court does not have all of the information necessary to compare
the works, making dismissal of Plaintiff’s claims inappropriate. See Peter F.
Gaito, 602 F.3d at 64 (explaining that resolving the question of substantial
similarity is appropriate on a motion to dismiss where “the court has before it
all that is necessary in order to make such an evaluation”). Despite compelling
arguments presented by Defendants as to the dissimilarity between the two
works, this appears to be one of those “certain instances of alleged copyright
infringement where the question of substantial similarity cannot be addressed
without the aid of discovery[.]” Id. at 65; cf. Amimon Inc. v. Shenzhen Hollyland
Tech. Co. Ltd., No. 20 Civ. 9170 (ER), 2021 WL 5605258, at *12 (S.D.N.Y. Nov.
30, 2021) (denying motion to dismiss in copyright infringement action where
additional evidence was necessary to determine substantial similarity because
the allegedly infringing source code was not presented to the court). 10
Given the diversity and inconsistency among the episodes of BET’s
House Party, there exists the possibility — even if remote — that Defendants
livestreamed an episode that was substantially similar to Plaintiff’s work.
Defendants harp on the fact that none of the evidence presently available bears
similarity to Plaintiff’s copyrighted work; however, this cannot mandate

10

The Court does not doubt Defendants’ representation that they have produced all
recordings and promotional materials that are in their custody, possession, or control.
(Def. Reply 6 n.2). The fact remains that the Court is unable to assess the entirety of
the allegedly infringing work, which makes dismissal inappropriate at this stage. That
Defendants are unable to produce any additional recordings or promotional flyers does
not mean that Plaintiff is without any avenue to gather additional information about the
missing episodes that might bear on the substantial similarity inquiry.

23

dismissal of this case at this stage. As Judge Learned Hand observed, “no
plagiarist can excuse the wrong by showing how much of his work he did not
pirate.” Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir.
1936). And given the Court’s acceptance of Plaintiff’s allegations that
Defendants actually copied the Treatment, the Court cannot at this stage rely
on Defendants’ assurance that no facet of BET’s House Party is substantially
similar to the Treatment. As such, Plaintiff is entitled to discovery on its
copyright infringement claim.
C.

Breach of Implied Contract
Plaintiff next alleges that Defendants breached the terms of an implied-

in-fact contract when they went forward with the House Party concept without
compensating Plaintiff. By Plaintiff’s own allegations, this claim is implausible.
1.

Applicable Law 11

“To state a claim for breach of contract under New York law, the
complaint must allege: (i) the formation of a contract between the parties;
(ii) performance by the plaintiff; (iii) failure of defendant to perform; and
(iv) damages.” Edwards v. Sequoia Fund, Inc., 938 F.3d 8, 12 (2d Cir. 2019)
(citation omitted). “[A]bsent a written agreement between the parties, a
contract may be implied where inferences may be drawn from the facts and

11

In their briefing, both parties apply New York law to Plaintiff’s implied-breach-ofcontract claim. (Def. Br. 14-16; Pl. Opp. 17-20). This implied consent is sufficient to
establish choice of law, and thus the Court applies New York law to this claim. Krumme
v. WestPoint Stevens Inc., 238 F.3d 133, 138 (2d Cir. 2000) (“The parties’ briefs assume
that New York law controls, and such implied consent ... is sufficient to establish choice
of law.” (internal quotation marks omitted)).

24

circumstances of the case and the intention of the parties as indicated by their
conduct.” Shull, 2019 WL 5287923, at *6 (quoting Betty, Inc. v. PepsiCo, Inc.,
283 F. Supp. 3d 154, 166 (S.D.N.Y. 2017)). “Contracts that are implied in fact
are ‘just as binding as an express contract arising from declared intention,
since in the law there is no distinction between agreements made by words and
those made by [written] contract.’” Id. (quoting Betty, Inc., 283 F. Supp. 3d at
166-67).
Importantly, to establish the existence of an implied contract, just as in
the case of an express agreement, “a plaintiff must allege sufficient facts to
establish ‘an offer, acceptance of the offer, consideration, mutual assent, and
intent to be bound.’” Jinno Int’l Co. v. Premier Fabrics, Inc., No. 12 Civ. 7820
(LGS), 2013 WL 4780049, at *2 (S.D.N.Y. May 24, 2013) (quoting Register.com,
Inc. v. Verio, Inc., 356 F.3d 393, 427 (2d Cir. 2004)); see also Nat’l Gear &
Piston, Inc. v. Cummins Power Sys., LLC, 861 F. Supp. 2d 344, 359 (S.D.N.Y.
2012) (“An implied-in-fact contract ‘requires such elements as consideration,
mutual assent, legal capacity and legal subject matter.’”). “The element of
mutual assent ... must be inferred from the facts and circumstances of each
case, including such factors as the specific conduct of the parties, industry
custom, and course of dealing.” Nadel v. Play-By-Play Toys & Novelties, Inc.,
208 F.3d 368, 376 n.5 (2d Cir. 2000) (citation omitted). “[A] contract is not
implied in fact where the facts are inconsistent with its existence … or against
the intention or understanding of the parties[.]” Shull, 2019 WL 5287923, at *6
(internal quotation marks omitted) (quoting Betty, Inc., 283 F. Supp. 3d at 167).
25

2.

Plaintiff Has Not Stated a Claim for Breach of Implied Contract

Plaintiff’s allegations concerning the history of its negotiations with
Defendants toward an express agreement over House Party refute the existence
of an implied agreement over the project. The Court deems this lack of mutual
assent, as evidenced by the parties’ conduct and express communications, to
control Plaintiff’s breach-of-implied contract claim.
Plaintiff alleges that it “reasonably expected to be compensated” for
Defendants’ use of its ideas and materials and, further, that Defendants
“voluntarily accepted Plaintiff’s offer and disclosures,” while understanding that
their use of Plaintiff’s ideas carried with it an “obligation” to “compensate and
credit” Plaintiff. (Compl. ¶¶ 90-91). Defendants’ failure to compensate or
credit Plaintiff when it launched BET’s House Party, Plaintiff asserts, breached
the terms of this implied-in-fact contract. (Id. at ¶¶ 93, 95).
The allegations in the Complaint paint a different picture of the parties’
negotiations that counters the existence of an implied contract. As Plaintiff
details, the parties engaged in serious negotiations for a period of years,
culminating in the exchange of written draft agreements for the House Party
project that were never signed. (See, e.g., Compl. ¶¶ 2, 40). By Plaintiff’s own
allegations, an express agreement was not reached because the parties
disagreed over several material terms, including the extent of Defendants’
ownership of the House Party concept and the inclusion of a break fee. (Id. at
¶ 37). Indeed, Plaintiff alleges that it “rejected the[ ] demands” embodied in
Defendants’ draft agreement. (Id. at ¶ 40). At this point, the parties’ conduct
26

clearly does not imply their mutual assent over any contractual terms or any
promise to which either party intended to be bound. See Valentino v. Davis,
703 N.Y.S.2d 609, 612 (3d Dep’t 2000) (“A contract may not be implied in fact
from the conduct of the parties where it appears that they intended to be
bound only by a formal written agreement.”).
Neither does any of the parties’ subsequent communications plausibly
suggest the existence of an implied contract. To the contrary, Defendants
repeatedly rejected Plaintiff’s attempts to revitalize the House Party project. For
instance, on July 8, 2016, Siegman “explained that BET had decided not to
move forward with the ‘House Party’ project.” (Compl. ¶ 41). Similarly, on
July 25, 2016, Orlando emailed Lebowitz and wrote “we ALL tried to get this
done (your side and ours) but unfortunately we couldn’t get it done in the right
time frame.” (Id. at ¶ 45). On August 15, 2017, Defendants sent an email to
Lebowitz to explain that they were “going to pass on the opportunity” to work
with Plaintiff on House Party. (Id. at ¶ 57). And the following day, Defendants
followed up with a more detailed email explaining that “we wanted to close this
chapter so that you could explore” the idea with other partners. (Id. at ¶ 59).
Yet again, on March 30, 2018, Siegman informed Lebowitz via email that “[t]he
show has no movement at this time. If you have an opportunity to shop the
show to another network, you should do that.” (Id. at ¶ 71).
Far from suggesting that the parties arrived at a mutual agreement,
Plaintiff’s allegations demonstrate that Defendants repeatedly rejected their
attempts to negotiate an agreement. The parties’ failed negotiations over House
27

Party belie the existence of an implied contract obligating Defendants to
compensate Plaintiff for the very same subject matter. See, e.g., Shull, 2019
WL 5287923, at *15 (dismissing implied-in-fact contract claim because
allegations did not connote “mutual understanding” of a contractual
arrangement); LPD N.Y., LLC v. Adidas Am., Inc., No. 15 Civ. 6360 (MKB) (RLM),
2016 WL 11264718, at *13 (E.D.N.Y. Aug. 25, 2016) (finding no implied
contract where “the parties did not show their unambiguous mutual assent to
the material terms of the agreement by word or deed”), report and
recommendation adopted, 2017 WL 1162181 (E.D.N.Y. Mar. 27, 2017); Nat’l
Gear & Piston, Inc., 861 F. Supp. 2d at 359 (dismissing implied-breach-ofcontract claim where allegations showed parties’ intent to be bound only by a
formal written agreement). 12 Accordingly, Plaintiff’s claim for breach of an
implied-in-fact contract is dismissed.
D.

Quantum Meruit and Unjust Enrichment
Plaintiff separately asserts, in the alternative to its breach of implied

contract claim, equitable claims to recover in quantum meruit and unjust
enrichment. (Compl. ¶¶ 96-101). Defendants contend that these state law
claims are preempted by the Copyright Act because they merely recast
Plaintiff’s claim for copyright infringement. (Def. Br. 18-19). The Court agrees.

12

Plaintiff additionally argues that Rule 8(a)(2) does not require it to list each specific
provision of its alleged implied contract with Defendants. (Pl. Opp. 18). This argument
does not alter Plaintiff’s allegations that refute the existence of an implied contract.

28

1.

Applicable Law

The Copyright Act bars state law claims based on “all legal or equitable
rights that are equivalent to any of the exclusive rights within the general scope
of copyright as specified by section 106[.]” 17 U.S.C. § 301(a). “Section 301 of
the Copyright Act preempts a state law claim when (i) the work at issue
‘come[s] within the subject matter of copyright’ and (ii) the right being asserted
is ‘equivalent to any of the exclusive rights within the general scope of
copyright.’” I.C. ex rel. Solovsky v. Delta Galil USA, 135 F. Supp. 3d 196, 217
(S.D.N.Y. 2015) (quoting 17 U.S.C. § 301). “The subject matter requirement is
satisfied if the claim applies to a work of authorship fixed in a tangible medium
of expression and falling within the ambit of one of the categories of
copyrightable works.” Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d
296, 305 (2d Cir. 2004) (citation omitted). “The general scope requirement is
satisfied only when the state-created right may be abridged by an act that
would, by itself, infringe one of the exclusive rights provided by federal
copyright law.” Id. (citation omitted) “In other words, the state law claim must
involve acts of reproduction, adaptation, performance, distribution or display.”
Id. (citing 17 U.S.C. § 106). However, if the state law claim includes “any extra
elements that make it qualitatively different from a copyright infringement
claim,” then the claim is not preempted. Id. at 305-06 (citations omitted).
“Applying New York law, we may analyze quantum meruit and unjust
enrichment claims together as a single quasi contract claim.” Mid-Hudson
Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 175 (2d
29

Cir. 2005) (citation omitted). “This is because ‘quantum meruit and unjust
enrichment are not separate causes of action; rather, unjust enrichment is a
required element for an implied-in-law, or quasi contract, and quantum meruit,
meaning “as much as he deserves,” is one measure of liability for the breach of
such a contract.’” Delta Galil USA, 135 F. Supp. 3d at 218 (quoting Di Simone
v. CN Plumbing, Inc., No. 13 Civ. 5088 (JG), 2014 WL 1281728, at *6 (E.D.N.Y.
Mar. 31, 2014)).
“To prevail on a claim of unjust enrichment, a party must show that
[i] the other party was enriched, [ii] at that party’s expense, and [iii] that it is
against equity and good conscience to permit the other party to retain what is
sought to be recovered.” Delta Galil USA, 135 F. Supp. 3d at 218 (quoting Di
Simone, 2014 WL 1281728, at *5) (internal quotation marks omitted). “In order
to recover in quantum meruit under New York law, a claimant must establish
[i] the performance of services in good faith, [ii] the acceptance of the services
by the person to whom they are rendered, [iii] an expectation of compensation
therefor, and [iv] the reasonable value of the services.” Id. (quoting MidHudson, 418 F.3d at 175).
“Courts in the Second Circuit have consistently held that unjust
enrichment and quantum meruit claims brought under New York law are
preempted by the Copyright Act.” Kennedy v. LaCasse, No. 17 Civ. 2970
(KMK), 2017 WL 3098107, at *4 (S.D.N.Y. July 20, 2017) (collecting cases); see
also Roberts v. BroadwayHD LLC, No. 19 Civ. 9200 (KPF), 2022 WL 976872, at
*16 (S.D.N.Y. Mar. 31, 2022) (finding unjust enrichment claim preempted
30

where plaintiff sought “to use his unjust enrichment claim to recoup any
damages that may not be recoverable under the Copyright Act”); Delta Galil
USA, 135 F. Supp. 3d at 218-19 (finding unjust enrichment and quantum
meruit claims “not qualitatively different from [plaintiff’s] copyright infringement
claim”).
2.

Plaintiff’s Claims for Quantum Meruit and Unjust Enrichment
Are Preempted

Here, Plaintiff’s claims for unjust enrichment and quantum meruit are
predicated on allegations that Defendants unjustly benefitted from Plaintiff’s
copyrighted work by reproducing and distributing facets of Plaintiff’s House
Party without credit or compensation. These allegations possess no qualitative
difference from Plaintiff’s copyright infringement claim. Indeed, Plaintiff
mounts no argument that these equitable claims are qualitatively distinct from
its copyright infringement claim, instead focusing the bulk of its argument on
the unrelated point that its breach of implied contract claims are not
preempted — an argument that Defendants do not present. (See Pl. Opp. 1617). Given that the bases of Plaintiff’s quantum meruit and unjust enrichment
claims are identical to those underpinning its claim for copyright infringement,
these claims are preempted by the Copyright Act. Accordingly, the Court
dismisses Plaintiff’s claims for quantum meruit and unjust enrichment.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED IN
PART and DENIED IN PART. Plaintiff has adequately stated a claim for
copyright infringement and may thus pursue discovery on this claim. Plaintiff
31

has not, however, stated a claim for breach of implied contract. Additionally,
the Court dismisses Plaintiff’s quantum meruit and unjust enrichment claims
as preempted by federal law.
Defendants are directed to file an answer to the Complaint on or before
July 11, 2022. Further, the parties are directed to file a joint status letter
regarding next steps in this case and a proposed case management plan on or
before July 18, 2022.
The Clerk of Court is directed to terminate the pending motion at docket
entry 57.
SO ORDERED.
Dated:

June 27, 2022
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

32