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finding no passing off claim where, inter alia, plaintiff did not allege that defendants represented their own photographs as ones created by plaintiff
Summary of this case from Kaplan v. the Stock Market Photo Agency, Inc.Opinion
98 Civ. 5000 (RLC)
January 16, 2001
Stephen A. Weingrad Weingrad Weingrad, P.C. New York, New York Attorneys for Plaintiff
Gregory F. Hauser Birgit Kurtz Walter, Conston, Alexander Green, P.C. New York, New York Attorneys for Defendants
OPINION
Defendants Gruner + Jahr AG Co. ("Gruner Germany"), Grunor + Jahr USA Group, Inc. ("Gruner USA"), and Stern Magazine Corporation ("Stern"), move to dismiss plaintiff Joe Marvullo's third amended complaint pursuant to Rule 12(b)(6), F.R. Civ. P., for failure to state a claim upon which relief can be granted. Plaintiff opposes this motion.
BACKGROUND
The background of this case is largely set forth in an opinion issued by the court on June 19, 2000. See Marvullo v. Gruner Jahr and Stern Mag. Corp., 105 F. Supp.2d 225 (S.D.N Y 2000) (Carter, J.). ("Marvullo I") Familiarity with that opinion is presumed. It is sufficient to note that in Marvullo I, the court granted plaintiff thirty days within which to replead his federal copyright and state law claims against the defendants. Plaintiff then filed a third amended complaint against Gruner Germany, Gruner USA and Stern. Gruner Germany is a German corporation that publishes the German-language periodical, Stern Magazine. (Cplt. ¶ 5.) Gruner USA is a subsidiary of Gruner Germany and a domestic corporation that sells and distributes Stern Magazine in New York City and elsewhere on behalf of Gruner Germany. (Cplt. ¶ 6.) Stern is a subsidiary of Gruner USA and a domestic corporation whose principal place of business is in New York. (Cplt. ¶, 7.) Plaintiff's suit alleges a federal claim of copyright infringement under the Copyright Act of 1976 ("Copyright Act") 17 U.S.C. § 101, et seq., (count I), and state law claims for fraud (count II), conversion (count III), negligence and common law unfair competition (count IV), and tortious misappropriation of goodwill (count V)
DISCUSSION I.
Defendants move to dismiss plaintiff's federal and state law claims pursuant to Rule 12(b)(6), F.R. Civ. P. "In determining the adequacy of a claim under Rule 12(b)(6), consideration is limited to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice can be taken." Allen v. Westpoint-pepperell Inc., 945 F.2d 40, 44 (2d Cir. 1991) (citing Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991)). The factual allegations of the complaint are presumed to be true and all factual inferences are drawn in favor of the nonmoving plaintiff. See Papasan v. Allain, 478 U.S. 265, 283 (1986). The court may not dismiss plaintiff's claims unless defendants demonstrate beyond doubt that plaintiff can prove no set of facts in support of his claims which would entitle him to relief. See Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998).
II. A.
Count I of the third amended complaint alleges copyright infringement of plaintiff's photograph of White House photographer Bob McNeely photographing President Clinton ("McNeely photograph"). Plaintiff alleges that the McNeely photograph was published and distributed beyond the scope and authority of the license granted to defendants because (a) it was printed alongside a "salacious" article about President Clinton's second term rather than as an accompaniment to an article on the White House Photo Unit, written by plaintiff and Teja Fiedler ("Fiedler"), the U.S. Bureau Chief for Stern Magazine; (b) it was cropped without authorization; (c) it was printed without the caption drafted by plaintiff; and (d) it failed to give copyright and photograph credit to plaintiff. (Cplt. ¶¶ 26-28, 31-41.)
To withstand a motion to dismiss, a complaint based on copyright infringement must allege: (i) which specific original work is the subject of the claim; (ii) that plaintiff owns the copyright in the work; (iii) that the copyright has been registered in accordance with the statute; and (iv) "by what acts during what time" defendants infringed the copyright. Kelly v. L.L. Cool J., 145 F.R.D. 32, 35 (S.D.N.Y. 1992) (Conner, J.), aff'd, 23 F.3d 398 (2d Cir. 1992). In the case at bar, plaintiff has produced a certificate of copyright registration for the McNeely photograph, which is "prima facie evidence of the valid ownership of a copyright." Rogers v. Koons, 960 F.2d 301, 306 (2d Cir. 1992). The court therefore turns to inquire whether defendants' alleged improper uses of the photograph infringed plaintiff's copyright.
The McNeely photograph was registered under copyright number VA 872-823, effective February 11, 1998. (Cplt. ¶ 34.)
The court has held that a licensor may bring a claim for infringement where a licensee uses copyrighted material beyond the scope of the license. See Marshall v. New Kids on the Block Partnership, 780 F. Supp. 1005, 1009 (S.D.N.Y. 1991) (Patterson, J.). In Marshall, the court found that a photographer had satisfactorily stated a claim for copyright infringement within the subject matter jurisdiction of the district court, in alleging that the oral license and invoice she gave to defendants dictated that her photographs were to be used for specified posters, and that defendants exceeded the scope of the license by using the photographs for other purposes such as on trading cards and paper plates. See id. at 1010. Here, plaintiff alleges the existence of an oral license and invoice dictating that the McNeely photograph may be used only in the context of an article on the White House Photo Unit, written by plaintiff and Fiedler, and only when accompanied by a caption written by plaintiff. (Cplt. ¶¶ 20-21, 35.) Plaintiff has asserted that defendant Gruner Germany, which publishes Stern Magazine, exceeded the scope of the license by reproducing the McNeely photograph in a salacious article about President Clinton, published in the December, 1997 edition of Stern Magazine, without the caption written by plaintiff. (Cplt. ¶ 27.) See 17 U.S.C. § 106(1) (conferring on copyright holder exclusive right to authorize reproduction of his work). Plaintiff has therefore satisfactorily stated a claim for copyright infringement against Gruner Germany.
The court has subject matter jurisdiction over the copyright claim pursuant to 28 U.S.C. § 1338(a). See Marvullo I, 105 F. Supp.2d at 233-34 n. 12.
Plaintiff contends that Gruner USA is also liable for copyright infringement because it sold and distributed the December, 1997 edition of Stern Magazine in the United States beyond the scope and authority of the license. (Cplt. ¶ 35.) Plaintiff has stated a cause of action under 17 U.S.C. § 106(3), which confers on the copyright holder the exclusive right to authorize distribution of his work. Moreover, "courts have long held in patent, trademark, literary property, and copyright infringement cases, any member of the distribution chain can be sued as an alleged joint tort-feasor." Costello Publ'g Co. v. Rotelle, 670 F.2d 1035, 1044 (D.C. Cir. 1981). Gruner USA's good faith distribution of the December, 1997 edition of Stern Magazine does not insulate the company since intent is not an element of copyright infringement. See Lottie Joplin Thomas Trust v. Crown Publishers, Inc., 456 F. Supp. 531, 537 (S.D.N Y 1977) (Cannella, J.), aff'd, 592 F.2d 651 (2d Cir. 1978).
Although defendants contend that Gruner USA is not a subsidiary of Gruner Germany, and does not distribute Stern Magazine in the United States, the court must accept plaintiff's factual allegations as true on a Rule 12(b)(6) motion.
Plaintiff also contends that Stern is liable for copyright infringement under a theory of contributory infringement. (Cplt. ¶ 37.) In order to plead contributory infringement, plaintiff must allege that Stern had actual or constructive knowledge of, and induced, caused, or materially contributed to, Gruner Germany's infringing conduct. See Ez-Tixz, Inc. v. Hit-Tix, Inc., 919 F. Supp. 728, 732 (S.D.N.Y. 1996) (Koeltl, J.) Plaintiff asserts that Stern knowingly used subterfuge to obtain the McNeely photograph on Gruner Germany's behalf. (Cplt. ¶ 35.) Plaintiff supports this allegation by pointing to his extensive dealings with Susan Lapsien ("Lapsien"), allegedly an employee of Stern, who was plaintiff's major contact with Gruner Germany. It was Lapsien who initially expressed interest in plaintiff's White House Photo Unit story, who met with plaintiff and Fiedler at Stern's offices in Manhattan, and who informed plaintiff that Gruner Germany had approved the White House Photo Unit article. (Cplt. ¶¶ 11, 18-19.) Plaintiff delivered an invoice and photographs to Lapsien, making clear that they were to be used only alongside an article on the White House Photo Unit. (Cplt. ¶¶ 22-23.) Stern allegedly accepted these terms orally and by payment of plaintiff's invoice. (Cplt. ¶ 24; Ex. J.) Lapsien allegedly "induce[d] plaintiff to believe that the article being published was plaintiff's approved article" by sending him a fax of the photograph layout and requesting that he fax her captions, none of which were used. (Cplt. ¶¶ 25, 27.) Plaintiff alleges that at this time, defendants were "preparing the story for an article that they knew was a gross departure from the agreement that had been reached with plaintiff." (Cplt. ¶ 25.) Plaintiff has therefore satisfactorily stated a claim for contributory infringement against Stern.
Defendants assert that Lapsien is an employee of Gruner Germany. (Wiesinger Reply Decl. ¶ 4.) Again, plaintiff's factual allegations are accepted as true on a Rule 12(b)(6) motion.
Defendants assert that Lapsien's activities were minor, administrative duties. This characterization turns on questions of fact that must be construed in plaintiff's favor on a Rule 12(b)(6) motion. Defendant also asserts that Stern acted as an independent contractor and not as a general agent of Gruner Germany. This distinction is immaterial under a theory of contributory infringement, which extends to unrelated third parties. See Demetriades v. Kaufmann, 690 F. Supp. 289, 292-94 (S.D.N.Y. 1988) (Goettel, J.).
Defendants assert that plaintiff fails to allege that Lapsien "knowingly induced or caused the actual publication of the article," or that she participated in the relevant "decision making." (Def's Mem. p. 14; Reply Mem. p. 6.) Although plaintiff fails to assert that Lapsien had actual or constructive knowledge of Gruner Germany's infringing conduct, or knew that her actions amounted to trick or device, plaintiff asserts that Lapsien's employer, Stern, had the requisite actual knowledge. (Cplt. ¶ 25.)
Plaintiff further alleges a cause of action against defendants for cropping his photograph of McNeely without authorization. The court, inMarvullo I, found this allegation legally insufficient, and plaintiff has supplied no additional information meriting redress of that analysis. See Marvullo I, 105 F. Supp.2d at 231-232.
Plaintiff also asserts causes of action in copyright for defendants' failure to give copyright and photograph credit to the plaintiff. These allegations do not rise to a use of the copyrighted material beyond the scope of the license granted. At most they allege a breach of contract by defendants. See Wolfe v. United Artists Music Co., 1983 U.S. Dist. LEXIS 15304, at *11 (S.D.N.Y. July 21, 1983) (Griesa, J.) ("the obligation to properly place [a] copyright notice on published materials [is] not cognizable as an infringement under the [copyright] statute."); Kanakos v. MX Trading Corp., 1981 WL 1377, at *2 (S.D.N.Y. Sept. 16, 1981) (Conner, J.) (finding that failure to include a credit line and failure to include a copyright notice depend upon establishing a breach of contract and do not sound in copyright law). Therefore, these claims must be dismissed.
Defendants assert that even if plaintiff has adequately stated a claim for copyright infringement, he is barred from seeking statutory damages or attorney's fees under 17 U.S.C. § 412. That section provides that "no award of statutory damages or of attorney's fees . . . shall be made for — (1) any infringement of copyright in an unpublished work commenced before the effective date of its registration." In this case, plaintiff registered the photograph in February, 1998, two months after the first publication. Accordingly, plaintiff's claims for statutory damages and attorney's fees must be dismissed. See Ez-Tixz, Inc., 919 F. Supp. at 735-736 (granting motion to dismiss plaintiff's claim for statutory damages and attorney's fees because alleged infringing conduct occurred prior to date of registration)
B.
Plaintiff's second claim is for fraud. To establish a cause of action sounding in fraud under New York law, the petitioner must establish the following elements: "(1) a material false representation or omission of an existing fact; (2) made with knowledge of its falsity; (3) with an intent to defraud; (4) reasonable reliance; (5) that damages the plaintiff." Sudul v. Computer Outsourcing Servs., Inc., 917 F. Supp. 1033, 1043 (S.D.N.Y. 1996) (Koeltl, J.).
The court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a).
Since the license was negotiated in New York, the plaintiff resides in New York, the defendants do business in New York, and the parties rely exclusively on New York law in their motion papers, New York law applies to the state law claims. See Margo v. Weiss, 1998 WL 2558, at *4 (S.D.N.Y. Jan. 5, 1998) (Mukasey, J.), aff'd, 213 F.3d 55 (2nd Cir. 2000).
Plaintiff alleges three misrepresentations: (a) that the McNeely photograph and the photographs taken by the White House Photo Unit ("White House photographs") would be used in an article on the White House Photo Unit; (b) that the article in which the photographs were to be included would only be published after prior permission was obtained from plaintiff; and (c) that defendants would give proper copyright credit and attribution to all photographs. (Cplt. ¶ 44.)
Defendants assert that plaintiff has failed to specify the role of each defendant with respect to each alleged misrepresentation, thereby failing to meet the specificity requirements of Rule 9(b), F.R. Civ. P. Rule 9(b) requires that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." The Second Circuit has explained that "allegations, which fail to specify the time, place, speaker, and sometimes even the content of the alleged misrepresentations, lack the `particulars' required by Rule 9(b)." Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir. 1986)
As regards Stern and Gruner Germany, plaintiff points to the following fraudulent statements: (1) the August 17, 1997 letter of Angelika Hala, Gruner Germany's picture editor, to the plaintiff, written on Stern Magazine letterhead with a Stern address, representing that "there is absolutely no danger that the images . . . will be published without prior permission . . . ." (Cplt. ¶ 16; Ex. D); (2) Fiedler's August 22, 1997 phone conversation with plaintiff from Stern's New York office, assuring plaintiff that all pictures and text would be approved by plaintiff prior to publication (Cplt. ¶ 17); (3) McNeely's November 12, 1997, Washington, D.C. meeting with Fiedler, explaining that authorization to use the White House photographs was "due to the trusted special relationship between plaintiff and the White House Press and Photo Office," and that such authorization was limited to an article on the White House Photo Unit, and Fiedler's acceptance of these terms (Cplt. ¶ 20); (4) plaintiff's invoice to Stern and Gruner Germany, dated November 19, 1997, requiring proper copyright notice and credit, and indicating that the photographs "may not be used . . . except in the context" of the White House Photo Unit article, (Cplt. ¶ 21; Ex. G), and payment from Stern indicating acceptance of the same. (Cplt. ¶ 24; Ex. J.) These allegations properly identify the time, place, speaker and content of Stern and Gruner Germany's alleged fraudulent statements. However, plaintiff has not demonstrated that Gruner USA made any fraudulent statements. Therefore, plaintiff's claim for fraud against Gruner USA must be dismissed.
Plaintiff's complaint is also devoid of facts from which the court could infer parent liability or an actual or apparent agency relationship between Gruner USA and Stern. See Manchester Equip. Co., Inc. v. American Way Moving Co. Inc., 60 F. Supp.2d 3, 6-8 (E.D.N.Y. 1999) (setting forth standards under New York law for parent liability and actual and apparent agency).
Defendants further assert that plaintiff has not shown an intent to defraud on behalf of Stern or Gruner Germany at the time the misrepresentations were made. See 60 N Y Jur. 2d Fraud Deceit § 41 (1987) ("A promise will support an action in fraud where the promise itself is accompanied by a fraudulent intent."). Rule 9(b) provides that fraudulent intent "may be averred generally," as long as the complaint provides a factual basis that gives rise to a strong inference of intent to defraud, knowledge of the falsity, or a reckless disregard for the truth. See NAFTA v. Feniks Int. House of Trade (U.S.A.), Inc., 932 F. Supp. 422, 430 (E.D.N.Y. 1996). Fraudulent intent is commonly pleaded by alleging facts showing a motive for committing fraud and a clear opportunity for doing so. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). Plaintiff must demonstrate fraudulent intent as to each defendant. See Center Cadillac v. Bank Leumi Trust Co., 808 F. Supp. 213, 230 (S.D.N Y 1992) (Motley, J.), aff'd, 99 F.3d 401 (2nd Cir. 1995) ("Plaintiffs must demonstrate that each Defendant had a specific intent to defraud either by devising, participating in, or aiding and abetting the scheme." (citing Morrow v. Black, 742 F. Supp. 1199, 1205 (E.D.N.Y. 1990)).
Here, plaintiff has alleged that defendants Stern and Gruner Germany had a motive to defraud the plaintiff as regards the first two alleged misrepresentations in order to gain access to exclusive White House photographs, (Cplt. ¶ 47), and that these defendants had opportunity to do so in the context of negotiating an article on the White House Photo Unit. (Cplt. ¶¶ 18-25, 44-46.) Plaintiff has therefore adequately stated a claim for fraud against Stern and Gruner Germany for the first and second of the alleged misrepresentations.
However, plaintiff has not asserted any facts from which the court may infer defendants' intention to defraud plaintiff at the time they agreed to plaintiff's copyright notice and attribution terms. (Cplt. ¶ 24.) Given plaintiff's repeated assertions to defendants that the White House and McNeely photographs could only be used in the context of an article on the White House Photo Unit, common sense dictates that a fraudulent statement regarding copyright notice and attribution, standing alone, would not have induced plaintiff to supply the McNeely and White House photographs for a salacious article on President Clinton, thereby negating defendants' motive to defraud. Such an allegation states no more than a claim for breach of contract and is dismissed. See Kubin v. Miller, 801 F. Supp. 1101, 1116-17 (S.D.N.Y. 1992) (Kram, J.) (dismissing fraud claim as amounting to nothing more than claim for breach of contract, where plaintiff failed to allege facts from which court could infer defendant's intention to breach contracts at time contracts were made.)
C.
Finally, defendants move to dismiss plaintiff's state law claims for conversion, negligence, common law unfair competition, and tortious misappropriation of goodwill, asserting that these claims are preempted by federal copyright law.
A state law cause of action is preempted by federal copyright law if (1) the subject matter of the state law right falls within the subject matter of copyright law, and (2) the state right asserted is equivalent to an exclusive right protected by federal copyright law. See 17 U.S.C. § 301(a) (b); Kregos v. Ass'n Press, 3 F.3d 656, 666 (2d Cir. 1993)
The subject matter of copyright law is set out in sections 102 and 103 of the Copyright Act and includes original photographs. See 17 U.S.C. § 102(a)(5); Rogers, 960 F.2d at 306. Moreover, the fact that 17 U.S.C. § 105 places government works in the public domain does not remove them from the subject matter of copyright law. See H.R. Rep. No. 94-1476 at 59 (1976) ("[Section 105] is intended to place all works of the United States Government . . . in the public domain."). "As long as a work fits within one of the general subject matter categories of sections 102 and 103 of this title, the bill [section 301] prevents the States from protecting it even if it fails to achieve Federal statutory copyright because it . . . has fallen into the public domain." H.R. Rep. No. 94-1476 at 131 (1976) (emphasis added). See National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841, 849 (2d Cir. 1997) ("Section 301 preemption bars state law misappropriation claims with respect to uncopyrightable as well as copyrightable elements."). Therefore, both the White House Photo Unit photographs and the McNeely photograph fall within the subject matter of copyright law, and meet the first criterion for preemption.
The second criterion for preemption is "equivalence" to federal copyright law, that is, if the state right is infringed by a mere act of reproduction, performance, distribution or display. See 17 U.S.C. § 106; Computer Assoc. Int., Inc. v. Altai, Inc., 982 F.2d 693, 716 (2d Cir. 1992). However, if the state claim requires an "extra element" that changes "the nature of the action so that it is qualitatively different from a copyright infringement claim," then there is no preemption. Id. The "extra element" must be substantial; "an action will not be saved from preemption by elements such as awareness or intent, which alter `the action's scope but not its nature . . . .'" Id. at 717 (citing Mayer v. Josiah Wedgwood Sons, Ltd., 601 F. Supp. 1523, 1535 (S.D.N.Y. 1985) (Leisure, J.))
Plaintiff's third cause of action alleges that defendants publication of the McNeely photograph and White House photographs in a salacious article about President Clinton constitutes unlawful conversion. In support of his claim, plaintiff cites to Pfeiffer v. C.I.A, 60 F.3d 861, 865 (D.C. Cir. 1995). In Pfeiffer, the court upheld the government's right to possession of a report physically taken from C.I.A. offices without consent. The court explained that the Copyright Act does not preempt a conversion claim against one who takes property without consent. See id. Pfeiffer is not applicable here since plaintiff's photographs were taken lawfully, but were put to a use beyond that agreed upon by the parties. Plaintiff's conversion claim is actually alleging that defendants infringed his copyright by exceeding the scope of the license. Therefore, plaintiff's conversion claim is preempted. See Kakizaki v. Riedel, 811 F. Supp. 129, 133 (S.D.N.Y. 1992) (Martin, J.)
Plaintiff's fourth cause of action alleges unfair competition. Generally, a "claim for unfair competition under New York common law is preempted by federal copyright law because New York law `requires proof of no element in excess of those elements [needed] to establish a copyright-infringement action.'" Ez-Tixz. Inc., 919 F. Supp. at 738 (citing Kregos, 3 F.3d at 666). However, the Second Circuit has held that unfair competition claims alleging palming off, (also known as passing off), are not preempted by copyright law. See Warner Bros., Inc. v. American Broadcasting Co. Inc., 720 F.2d 231, 247 (2d Cir. 1983). Here, plaintiff alleges that defendants' actions constitute an effort to palm off the McNeely and White House photographs, since defendants wrongly credited White House photographer Bob McNeely for all of the photographs rather than attributing them to their sources. (Cplt. ¶ 62.)
The elements of palming off under New York common law are identical to the standards applied to Section 43(a) claims of the Lanham Act. See Kregos v. Associated Press, 795 F. Supp. 1325, 1336 (S.D.N.Y. 1992) (Goettel, J.), aff'd, 3 F.3d 656 (2d Cir. 1993). Essentially, palming off occurs when "A promotes A's products under B's name," and its corollary, reverse palming off, occurs when "A promotes B's products under A's name." Carell v. The Shubert Org., Inc., 104 F. Supp.2d 236, 259 (S.D.N.Y. 2000) (Schwartz, J.) (citing Waldman Publ'g Corp. v. Landoll, Inc., 43 F.3d 775, 780 (2d Cir. 1994)).
The court held in Marvullo I that plaintiff's claim under Section 43(a) was legally insufficient, and the same rationale applies here. See Marvullo I, 105 F. Supp.2d at 232-33. Plaintiff does not allege that defendants represented their own photographs as ones created by plaintiff, or that they represented themselves as the creators or owners of the photographs; rather he asserts that defendants wrongly credited White House photographer Bob McNeely for all of the photographs. (Ex M.) Therefore plaintiff has not properly alleged the element of palming off and his claim for unfair competition is preempted.
Plaintiff's fourth cause of action also states a claim for negligence. This claim fails to allege any elements, merely repeating the allegations set forth in the previous paragraphs. Since plaintiff's essential allegation remains that defendants unlawfully used the McNeely and White House photographs beyond the scope of the license, plaintiff's negligence claim restates his copyright infringement claim and is preempted.
Plaintiff's fifth cause of action alleges that defendants' "conduct" constitutes tortious misappropriation of goodwill because it was "designed to trade upon the phenomenal popularity and goodwill of the . . . photographic images, and plaintiff's reputation . . . ." (Cplt. ¶ 66.) The defendants' alleged "conduct" refers to the same actions at question in plaintiff's copyright claim. The only extra element alleged by this claim is commercial immorality. In Mayer v. Josiah Wedgwood Sons. Ltd., 601 F. Supp. 1523, 1535 (S.D.N.Y. 1985) (Leisure, J.), the court held that commercial immorality is "an extra element in the same sense that awareness and intent are: it alters the scope of the action but not its nature. . . . The basic act which constitutes the infringement of plaintiff's rights, however, is the same as that of copyright." Here too, the extra element of commercial immorality in plaintiff's state law misappropriation claim is not sufficiently "qualitatively" different to preclude preemption. Plaintiff's misappropriation claim also fails to state a cause of action for palming off for the reasons discussed supra at 19-20. Since plaintiff's misappropriation claim essentially restates his copyright claim, it is preempted and must be dismissed.
CONCLUSION
Defendants' motion to dismiss count I of the third amended complaint pursuant to Rule 12(b)(6) is denied insofar as plaintiff alleges copyright infringement claims for publishing of the McNeely photograph alongside a different article than agreed upon, and without the caption drafted by plaintiff. Defendants' motion to dismiss count I is granted insofar as plaintiff alleges copyright infringement claims for cropping of the McNeely photograph and failure to give copyright and photograph credit to plaintiff. Defendants' motion to dismiss plaintiff's count I claims for statutory damages and attorney's fees is granted. Defendants' motion to dismiss count II is granted as to Gruner USA. Defendants' motion to dismiss count II is also granted insofar as plaintiff alleges that defendants' promise to grant photograph credit and attribution constitutes fraud. Defendants' motion to dismiss count II on the remaining grounds is denied as to Gruner Germany and Stern. Defendants' motion to dismiss counts III, IV, and V is granted
IT IS SO ORDERED.