Copyright Preemption Toolkit: Extra Element Charts, Removal Papers, and Motion Outlines

How to use this toolkit

These are drafts to adapt. Each tool states what it is for, who should own it, and when it is used, and each ends with notes tying its language to authority. The doctrine is in Copyright Preemption Under Section 301: When Federal Law Wipes Out Your State Law Claim, the sequence is in Pleading Around or Moving to Dismiss on Copyright Preemption: A Practical Guide, and the task list is in Copyright Preemption Analysis Checklist: A Practical Checklist. Read the newest authority in your circuit before filing anything, because outcomes here turn on the circuit and on the pleaded facts.

Allegations must be true and supported under Fed. R. Civ. P. 11. No template here makes a copying dispute into something else.

Contents

1. Tool 1: Intake worksheet
2. Tool 2: Extra element chart
3. Tool 3: Allegation bank for plaintiffs
4. Tool 4: Removal decision matrix
5. Tool 5: Notice of removal paragraphs
6. Tool 6: Motion to remand outline
7. Tool 7: Amendment and remand stipulation
8. Tool 8: Rule 12(b)(6) motion outline
9. Tool 9: Opposition outline
10. Tool 10: Conflict preemption module
11. Tool 11: Contract clause bank
12. Tool 12: Pre-suit letter on preemption and fees
13. Tool 13: Citation cautions

Tool 1: Intake worksheet

Purpose: collect the facts that decide preemption before anyone chooses a claim. Owner: associate or paralegal, reviewed by the lead lawyer. Timing: first client meeting, for either side.

Drafting note. Keep this worksheet privileged and written as a working document, since answers may be unfavorable. If you act for a defendant, fill it in from the complaint first, and then from what the client tells you. The difference between those two versions often identifies your motion and your risk.

Tool 2: Extra element chart

Purpose: a one-page map for a meeting, memo, or brief outline. Owner: lead lawyer. Timing: before pleading or before removal, and again before the Rule 12 hearing.

Use one row per pleaded count, in your own version of this form. Start with the row that matches, then fill in the client's facts.

Drafting note. The "likely to count" column is a starting point rather than a rule. GlobeRanger Corp. v. Software AG United States of America, Inc., 836 F.3d 477 (5th Cir. 2016) looks at the actual conduct, and ML Genius Holdings LLC v. Google LLC, No. 20-3113 (2d Cir. Mar. 10, 2022) (summary order) calls the inquiry holistic. In a brief, give the court the pleaded paragraph numbers, not this generalization.

Tool 3: Allegation bank for plaintiffs

Purpose: sample language for the facts that carry a claim past Section 301. Owner: drafting lawyer. Timing: complaint or amended complaint. Use only what your client can support.

A. Promise to pay, by a signed license.

[Defendant] agreed in Section [] of the [Agreement] to pay [Plaintiff] [fee] for each [unit]. From [date] [Defendant] stopped paying while continuing to [sell or use] the [Product]. This claim is for the unpaid amounts owed under Section [].

B. Implied promise, by a pitch.

[Plaintiff] contacted [Defendant] on [date] to offer the [Concept] for sale. [Name], [Defendant's title], asked for the materials and arranged a meeting on [date]. It is the custom in [industry] that a company taking such a meeting will pay reasonable compensation if it uses the concept presented, and [Defendant] knew it. [Defendant] heard the presentation without objection and later released [Product], which uses the [Concept]. [Defendant] has paid nothing.

Note: This tracks what Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424 (2d Cir. 2012) and Montz v. Pilgrim Films & Television, Inc., 649 F.3d 975 (9th Cir. 2011) (en banc) accepted. Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424 (2d Cir. 2012) shows how custom and acceptance by conduct can be pleaded. If you allege only a promise not to use without permission, expect the dissent in Montz to be quoted back.

C. Duty of confidence.

[Plaintiff] disclosed the [Materials] to [Defendant] on [date] under [NDA or circumstances] and marked them [confidential]. [Defendant] understood they were disclosed only to evaluate [purpose]. [Defendant] then disclosed them to [third party], and this disclosure, not any copying as such, caused the harm alleged.

D. Trade secret.

The [Formula or Process] is not generally known, derives independent economic value from that fact, and has been protected by [measures]. [Defendant] acquired it through [former employee], knowing that [he or she] was bound by a duty of confidentiality to [Plaintiff].

Note: GlobeRanger Corp. v. Software AG United States of America, Inc., 836 F.3d 477 (5th Cir. 2016) accepts knowing third-party acquisition. Identify the secret with care, and consult Trade Secret Litigation Toolkit: Identification Statements, Two-Tier Protective Orders, and Forensic Protocols. 18 U.S.C. § 1839 has the federal definitions.

E. Use restriction.

Section [__] of the [License] limits use of the [Software] to [Licensee's] internal business. [Defendant] used the [Software] to process data for [third party] in exchange for payment. The breach is the use for that purpose, whether or not any copy was made.

Note: National Car Rental System, Inc. v. Computer Associates International, Inc., 991 F.2d 426 (8th Cir. 1993); Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079 (9th Cir. 2005).

F. Affirmative duty.

Section [__] requires [Defendant] to [deliver source code, provide an accounting, give credit, or submit to an audit]. [Defendant] has not done so despite demand on [date].

Note: The remand order in Software Freedom Conservancy, Inc. v. Vizio, Inc., No. 8:21-cv-01943-JLS-KES (C.D. Cal. May 13, 2022), treated a right to receive source code as qualitatively different from section 106 rights. It did not decide the merits of the third-party beneficiary theory.

G. Physical property.

[Defendant] holds the original [notebooks, master drives, or plates], identified as [description], which belong to [Plaintiff]. [Plaintiff] demanded their return on [date], and [Defendant] refused.

H. Deception that obtained the material.

On [date] [Name] told [Plaintiff] that [false statement]. That statement was false because [reason]. In reliance, [Plaintiff] gave [Defendant] access to [Materials], which [Defendant] could not otherwise have obtained.

Note: The deception must come before the taking. ML Genius Holdings LLC v. Google LLC, No. 20-3113 (2d Cir. Mar. 10, 2022) (summary order) rejected after-the-fact concealment. Rule 9(b) applies to fraud.

I. Publicity use beyond the work.

[Defendant] used [Plaintiff's] [name or likeness] in [advertisement] to promote [Product], which is not the [Film or Recording] in which [Plaintiff] appeared. The advertisement conveys that [Plaintiff] endorses [Product]. [Plaintiff] did not consent.

Note: Toney v. L'Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2005); Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001); Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008). Contrast Melendez v. Sirius XM Radio, Inc., 50 F.4th 294 (2d Cir. 2022), where clips promoted the same show.

J. Access harm.

Between [dates], automated requests from [Defendant's] network reached [number] per [period] against [endpoint]. Those requests caused [outages or latency] on [dates], and required [Plaintiff] to spend [amount] on additional capacity. [Defendant] created [number] accounts after [Plaintiff] had terminated its access on [date].

Note: X Corp. v. Bright Data Ltd., No. C 23-03698 WHA (N.D. Cal. Nov. 26, 2024) accepted scraper-specific traffic and impairment allegations where earlier conclusory ones failed under Intel Corp. v. Hamidi, 71 P.3d 296 (Cal. 2003). Tie damages to these facts. Computer Access Dispute Toolkit: Access Revocation Letters, Loss Worksheets, and Pleading Outlines has companion forms.

K. Copyright count in the alternative.

In the alternative, and only to the extent the Court holds any of Counts [__] preempted, [Plaintiff] alleges that it owns [Registration No.] and that [Defendant] infringed by [acts].

Note: Permitted by Fed. R. Civ. P. 8. Pleading this confirms a federal forum, so decide in advance whether you want one. Check timeliness with Copyright Timeliness Toolkit: Accrual Chronologies, Tolling Agreements, and Limitations Motions.

Tool 4: Removal decision matrix

Purpose: decide, with the client, whether to remove. Owner: lead defense lawyer and client decision-maker. Timing: within the first ten days after service.

Score each row from 0 to 2. A high total favors removal. A low total suggests staying and raising preemption as a defense.

Drafting note. There is no magic total. The second row deserves the most weight after Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025). If the plaintiff can drop the hook without losing anything, a removal may buy only delay, and it may give the plaintiff a written order on why its claims are not preempted.

Tool 5: Notice of removal paragraphs

Purpose: the jurisdictional core of a notice based on complete preemption. Owner: defense counsel. Timing: file within the period in 28 U.S.C. § 1446. Combine with general forms in Federal Jurisdiction Toolkit: Notices of Removal, Remand Motions, and Jurisdictional Allegations.

1. [Plaintiff] commenced this action on [date] in the [Court], Case No. [__]. [Defendant] was served on [date]. A copy of all process, pleadings, and orders served on [Defendant] is attached as Exhibit A. This notice is timely under 28 U.S.C. § 1446(b).

2. Although the Complaint is captioned under state law, this Court has original jurisdiction under 28 U.S.C. §§ 1331 and 1338(a) because Count[s] [__] [is/are] completely preempted by 17 U.S.C. § 301(a). [Cite controlling circuit authority.]

3. Subject matter. Count [] concerns [work], which is a [category] fixed in [medium]. Compl. ¶ []. It falls within 17 U.S.C. §§ 102 and 103. That some of the material may be unprotectable does not change this. [Cite.]

4. Equivalence. Count [] alleges that [Defendant] "[quote]," Compl. ¶ []. Those allegations describe [reproduction, adaptation, distribution, performance, or display], which are rights under 17 U.S.C. § 106. The claim has no element that changes its nature. The allegation that [Defendant] acted [knowingly or for profit], Compl. ¶ [__], alters scope and not nature. [Cite.]

5. The Court has supplemental jurisdiction over the remaining claims under 28 U.S.C. § 1367(a) because they arise from the same alleged facts, namely [__].

6. [All defendants who have been properly joined and served consent to this removal. See Exhibit B.]

7. Venue lies in this District under 28 U.S.C. § 1441(a). A copy of this Notice will be filed in the [state court] and served on [Plaintiff] as required by 28 U.S.C. § 1446(d).

8. By this Notice, [Defendant] takes the allegations as pleaded solely for the purpose of removal. It does not admit them, does not concede that [Plaintiff] owns any copyright or that any work is protectable, and reserves all defenses.

Drafting notes. Cite paragraphs instead of describing the "essence" of the case. Spear Marketing, Inc. v. BancorpSouth Bank, 791 F.3d 586 (5th Cir. 2015) supports removing the whole action on one preempted claim, and GlobeRanger Corp. v. Software AG, 691 F.3d 702 (5th Cir. 2012) shows a single conversion count sufficing at the pleading stage. Point out what the plaintiff actually alleged, because the court in Reddit, Inc. v. Anthropic PBC, No. 25-cv-05643-TLT (N.D. Cal. Mar. 30, 2026), resolved doubt against removal and looked closely at the alleged obligations. Do not rest the notice on a counterclaim, in light of Vaden v. Discover Bank, 556 U.S. 49 (2009) and Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002). If a party has actually pleaded a copyright claim, add 28 U.S.C. § 1454, which allows removal by any party and an extension for cause if removal is based solely on that section. Whether a completely preempted claim alone satisfies Section 1454 is a question we did not find resolved at the appellate level. Calendar the response date under Fed. R. Civ. P. 81(c).

Tool 6: Motion to remand outline

Purpose: the plaintiff's motion. Owner: plaintiff's counsel. Timing: promptly, and within 30 days for procedural defects under 28 U.S.C. § 1447(c).

I. Introduction. One paragraph on what the complaint actually claims. Name the promise, duty, or harm.

II. Standard. The removing party bears the burden. Federal jurisdiction is limited, and removal is construed against the removing party where the circuit says so. The well-pleaded complaint rule applies under Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) and Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1 (1983). A federal defense does not create jurisdiction. Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58 (1987).

III. Complete preemption is narrow. Use Beneficial National Bank v. Anderson, 539 U.S. 1 (2003). Add, as appropriate, Wisconsin Interscholastic Athletic Ass'n v. Gannett Co., 658 F.3d 614 (7th Cir. 2011) and Judge Cyr's dissent in Cambridge Literary Properties, Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co. KG, 510 F.3d 77 (1st Cir. 2007), and flag that binding authority may go the other way. If the plaintiff has no federal claim, argue that no exclusive federal cause of action exists for it, while noting ML Genius Holdings LLC v. Google LLC, No. 20-3113 (2d Cir. Mar. 10, 2022) (summary order) and Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008) as authorities the other side will use.

IV. No claim meets both prongs.

A. Prong one, if you can contest it. Oral material under Montz v. Pilgrim Films & Television, Inc., 649 F.3d 975 (9th Cir. 2011) (en banc). Identity under Toney v. L'Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2005). Ideas under Dunlap v. G&L Holding Group, Inc., 381 F.3d 1285 (11th Cir. 2004) in the Eleventh Circuit.

B. Prong two, count by count. For each: the element, the paragraph, and the case. Contract: Wrench LLC v. Taco Bell Corp., 256 F.3d 446 (6th Cir. 2001), Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424 (2d Cir. 2012), Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079 (9th Cir. 2005). Confidence: Montz v. Pilgrim Films & Television, Inc., 649 F.3d 975 (9th Cir. 2011) (en banc). Trade secret: GlobeRanger Corp. v. Software AG United States of America, Inc., 836 F.3d 477 (5th Cir. 2016). Fiduciary duty: Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004). Affirmative duties: Vizio.

V. Any amendment controls. If an amended complaint is on file, cite Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025) and Rockwell International Corp. v. United States, 549 U.S. 457 (2007) and address Spear Marketing, Inc. v. BancorpSouth Bank, 791 F.3d 586 (5th Cir. 2015)'s time-of-filing discussion directly.

VI. Fees under Section 1447(c). Ask only if the removal lacked an objectively reasonable basis under Martin v. Franklin Capital Corp., 546 U.S. 132 (2005). Overreaching here can weaken the rest of the motion.

VII. Conclusion and proposed order.

Drafting notes. Do not argue that copyright has nothing to do with the case if your complaint says otherwise. Concede the first prong where it is plainly met, as the plaintiff in Vizio did. A remand order is generally not reviewable under § 1447(d), and the plaintiff's work is not done, since preemption may return as a state court defense.

Tool 7: Amendment and remand stipulation

Purpose: end a removal without further briefing after Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025). Owner: plaintiff's counsel proposes; defense counsel evaluates. Timing: before any ruling on a motion to dismiss. Generally within 21 days of service of a Rule 12(b) motion if amending as of right under Fed. R. Civ. P. 15.

The parties stipulate as follows, subject to the Court's approval:

1. [Plaintiff] filed a First Amended Complaint on [date], which does not assert Counts [__] of the original Complaint.

2. [Plaintiff] represents that the First Amended Complaint asserts no claim arising under the Copyright Act, 17 U.S.C. § 101 et seq.

3. [Defendant] does not oppose remand of this action to the [state court] under Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025), and 28 U.S.C. § 1447(c).

4. Each party shall bear its own fees and costs incurred in connection with removal and remand.

5. Nothing in this Stipulation waives [Defendant's] right to assert any defense in state court, including preemption under 17 U.S.C. § 301, or [Plaintiff's] right to oppose it.

Drafting notes. Paragraph 5 protects the defendant, and it is what makes a stipulation possible. Parties cannot confer subject matter jurisdiction or remove it by agreement, so the court still decides. A defendant should compare the amended complaint to its claims first, since Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025) requires remand only if nothing in the amended pleading supports federal jurisdiction. If the remaining claim is still copying in substance, oppose it.

Tool 8: Rule 12(b)(6) motion outline

Purpose: the defendant's main motion. Owner: defense counsel. Timing: with or just after removal, under Fed. R. Civ. P. 81(c), or as a state court equivalent.

I. Introduction. State in a sentence what the plaintiff wants: control over copying of [work]. Show that this is what Congress reserved to federal law.

II. Facts from the complaint. Quote the verbs. Attach contract documents only where incorporated by reference.

III. Legal standard. Fed. R. Civ. P. 12, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Ashcroft v. Iqbal, 556 U.S. 662 (2009). Preemption may be decided on the pleadings where it appears from the face of the complaint, as in Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424 (2d Cir. 2012) (reviewing the question on a motion to dismiss) and ML Genius Holdings LLC v. Google LLC, No. 20-3113 (2d Cir. Mar. 10, 2022) (summary order).

IV. Section 301(a) preempts Counts [__].

A. The work is within the subject matter. 17 U.S.C. § 102; 17 U.S.C. § 103. Being unprotectable does not matter. Harper & Row, Publishers, Inc. v. Nation Enterprises, 723 F.2d 195 (2d Cir. 1983); National Basketball Ass'n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997); Spear Marketing, Inc. v. BancorpSouth Bank, 791 F.3d 586 (5th Cir. 2015); Ultraflo Corp. v. Pelican Tank Parts, Inc., 845 F.3d 652 (5th Cir. 2017); Best Carpet Values, Inc. v. Google, LLC, 90 F.4th 962 (9th Cir. 2024) (websites).

B. The rights are equivalent. Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004); Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992); Wrench LLC v. Taco Bell Corp., 256 F.3d 446 (6th Cir. 2001). Take each count in order.

• Contract: the promise is only not to copy. Wrench LLC v. Taco Bell Corp., 256 F.3d 446 (6th Cir. 2001); Universal Instruments Corp. v. Micro Systems Engineering, Inc., 924 F.3d 32 (2d Cir. 2019); ML Genius Holdings LLC v. Google LLC, No. 20-3113 (2d Cir. Mar. 10, 2022) (summary order); Canal+ Image UK Ltd. v. Lutvak, 773 F. Supp. 2d 419 (S.D.N.Y. 2011). If there is an argument on formation, make it. Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014); Berman v. Freedom Financial Network, LLC, 30 F.4th 849 (9th Cir. 2022).
• Unjust enrichment: Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004); Best Carpet Values, Inc. v. Google, LLC, 90 F.4th 962 (9th Cir. 2024); R.W. Beck, Inc. v. E3 Consulting, LLC, 577 F.3d 1133 (10th Cir. 2009).
• Misappropriation or unfair competition: Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992); Alcatel USA, Inc. v. DGI Technologies, Inc., 166 F.3d 772 (5th Cir. 1999); Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (9th Cir. 1998); Financial Information, Inc. v. Moody's Investors Service, Inc., 808 F.2d 204 (2d Cir. 1986).
• Hot news, if pleaded: National Basketball Ass'n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997); Barclays Capital Inc. v. Theflyonthewall.com, Inc., 650 F.3d 876 (2d Cir. 2011).
• Conversion and statutes: Spear Marketing, Inc. v. BancorpSouth Bank, 791 F.3d 586 (5th Cir. 2015); OpenRisk, LLC v. MicroStrategy Services Corp., 876 F.3d 518 (4th Cir. 2017); Rosciszewski v. Arete Associates, Inc., 1 F.3d 225 (4th Cir. 1993).
• Publicity: Fleet v. CBS, Inc., 50 Cal. App. 4th 1911 (Cal. Ct. App. 1996); Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006); Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146 (9th Cir. 2010); Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017); Melendez v. Sirius XM Radio, Inc., 50 F.4th 294 (2d Cir. 2022); Dryer v. National Football League, 814 F.3d 938 (8th Cir. 2016); Ray v. ESPN, Inc., 783 F.3d 1140 (8th Cir. 2015).

C. Plaintiff's asserted extra elements change scope and not nature. Address each with its authority: intent (Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992)), enrichment (Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004)), commercial use (Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006)), bad faith (ML Genius Holdings LLC v. Google LLC, No. 20-3113 (2d Cir. Mar. 10, 2022) (summary order)), effort (Alcatel USA, Inc. v. DGI Technologies, Inc., 166 F.3d 772 (5th Cir. 1999)).

V. In the alternative, conflict preemption. See Tool 10.

VI. The state law claims fail for independent reasons. Formation, statute of limitations, or failure to state elements.

VII. Dismissal with prejudice is appropriate. Melendez v. Sirius XM Radio, Inc., 50 F.4th 294 (2d Cir. 2022), if amendment is futile. If the claim is really an infringement claim and limitations has run, cite 17 U.S.C. § 507(b) and Ritchie v. Williams, 395 F.3d 283 (6th Cir. 2005). If it is not time-barred, expect leave to replead.

VIII. Reservation of a fee request. 17 U.S.C. § 505; Rosciszewski v. Arete Associates, Inc., 1 F.3d 225 (4th Cir. 1993); Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994); Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016).

Drafting notes. A motion that describes the plaintiff's work as worthless and also relies on Section 301 is coherent only if you are precise: protection and subject matter are different questions. ML Genius Holdings LLC v. Google LLC, No. 20-3113 (2d Cir. Mar. 10, 2022) (summary order) is a summary order and should be cited as one, and X Corp. v. Bright Data Ltd., No. C 23-03698 WHA (N.D. Cal. May 9, 2024) is a district court order. In California, an anti-SLAPP motion may be available for expressive uses, as in Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017). See also the general guidance in Motions to Dismiss Under Rule 12: A Practical Guide for Plaintiffs and Defendants.

Tool 9: Opposition outline

Purpose: the plaintiff's response to the motion. Owner: plaintiff's counsel. Timing: per local rule, after deciding whether to amend first under Fed. R. Civ. P. 15.

I. Introduction. The promise or duty at issue, and that it exists only because of what the defendant itself undertook. American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995) and the Brief for the United States as Amicus Curiae, ML Genius Holdings LLC v. Google LLC, No. 22-121 help on voluntary undertakings.

II. Burden and standard. The defendant must demonstrate both prongs. Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424 (2d Cir. 2012). Preemption is a defense, and the complaint is read in the plaintiff's favor.

III. The claims are qualitatively different. Take count by count.

• Contract: Wrench LLC v. Taco Bell Corp., 256 F.3d 446 (6th Cir. 2001), Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424 (2d Cir. 2012), Montz v. Pilgrim Films & Television, Inc., 649 F.3d 975 (9th Cir. 2011) (en banc), Grosso v. Miramax Film Corp., 383 F.3d 965 (9th Cir. 2004), National Car Rental System, Inc. v. Computer Associates International, Inc., 991 F.2d 426 (8th Cir. 1993), Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079 (9th Cir. 2005), ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), Bowers v. Baystate Technologies, Inc., 320 F.3d 1317 (Fed. Cir. 2003), Lipscher v. LRP Publications, Inc., 266 F.3d 1305 (11th Cir. 2001), Utopia Provider Systems, Inc. v. Pro-Med Clinical Systems, L.L.C., 596 F.3d 1313 (11th Cir. 2010).
• Implied in fact: distinguish Del Madera Properties v. Rhodes & Gardner, Inc., 820 F.2d 973 (9th Cir. 1987) using Grosso v. Miramax Film Corp., 383 F.3d 965 (9th Cir. 2004).
• Confidence: Montz v. Pilgrim Films & Television, Inc., 649 F.3d 975 (9th Cir. 2011) (en banc). Trade secret: Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992), GlobeRanger Corp. v. Software AG United States of America, Inc., 836 F.3d 477 (5th Cir. 2016). Fiduciary: Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004).
• Unjust enrichment, if retained: Digital Drilling Data Systems, L.L.C. v. Petrolink Services, Inc., 965 F.3d 365 (5th Cir. 2020), only where the state element fits.
• Publicity: Toney v. L'Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2005), Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001), Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992), Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008), Brown v. Ames, 201 F.3d 654 (5th Cir. 2000).
• Scraping-related claims: X Corp. v. Bright Data Ltd., No. C 23-03698 WHA (N.D. Cal. Nov. 26, 2024) on access claims, and Reddit on terms and technical safeguards. Address X Corp. v. Bright Data Ltd., No. C 23-03698 WHA (N.D. Cal. May 9, 2024) directly.

IV. Distinguish defense authority. ML Genius Holdings LLC v. Google LLC, No. 20-3113 (2d Cir. Mar. 10, 2022) (summary order): non-precedential, limited to its facts, and browsewrap. Universal Instruments Corp. v. Micro Systems Engineering, Inc., 924 F.3d 32 (2d Cir. 2019): limit implied by silence. X Corp. v. Bright Data Ltd., No. C 23-03698 WHA (N.D. Cal. May 9, 2024): adhesive terms enforced by a non-exclusive licensee against the world.

V. No conflict preemption. The state interest here is substantial and distinct, in the Jackson sense, and the claim does not burden anyone other than the party who made the promise. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974) and Aronson v. Quick Point Pencil Co., 440 U.S. 257 (1979) show the Supreme Court enforcing state law rights in this area.

VI. Alternative request for leave to amend. Say specifically what would be added. Melendez v. Sirius XM Radio, Inc., 50 F.4th 294 (2d Cir. 2022) shows what happens if you do not. If the client owns a registered copyright, propose the infringement count.

Drafting notes. Concede what you must. Courts notice when a plaintiff refuses to admit that a written treatment is within the subject matter. Spend your pages on equivalence. If the claim is a bare no-copy promise in the Second or Sixth Circuit, advise the client of the risk before the brief is written.

Tool 10: Conflict preemption module

Purpose: a section to add to a motion, or to anticipate in an opposition. Owner: whichever lawyer owns the brief. Timing: when Section 301(a) may not fully resolve a claim, as with names, uncopyrightable data, or adhesive terms.

Independently of Section 301(a), a state law claim yields where it stands as an obstacle to the purposes of federal copyright law. Goldstein v. California, 412 U.S. 546 (1973); Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989). Courts weigh two things: how substantial the state law interest is, and whether it is distinct from copyright's interests; and how much the claim would interfere with the copyright system. In re Jackson, 972 F.3d 25 (2d Cir. 2020). Here, [Plaintiff] invokes state law to [control or charge for copying of work]. It asserts no interest in [privacy, consumer deception, reputation]. The claim would [burden the copyright owner's licensing, foreclose fair use, or remove from the public domain what Congress left free]. See X Corp. v. Bright Data Ltd., No. C 23-03698 WHA (N.D. Cal. May 9, 2024). It is therefore preempted.

Drafting notes. Jackson v. Roberts (In re Jackson), 972 F.3d 25 (2d Cir. 2020) applied this test against a publicity claim, and X Corp. v. Bright Data Ltd., No. C 23-03698 WHA (N.D. Cal. May 9, 2024) extended it to terms of service. The second is a district court order, and it expressly set aside arm's length contracts between sophisticated parties. A plaintiff should answer by naming a real, distinct state interest, as the court in Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) (en banc) recognized privacy is not a function of copyright law, and Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008) found no conflict for a publicity claim based on advertising. Do not assume the same result in every circuit. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974) remains the counterweight on trade secrets.

Tool 11: Contract clause bank

Purpose: drafting obligations that do more than repeat section 106, so a later claim rests on a promise rather than on a copyright. Owner: transactional lawyer, ideally with litigation input. Timing: whenever content, data, or software changes hands, including pitch meetings. See Software Licensing Agreements, Drafting Enforceable Non-Disclosure Agreements for Technology Transactions, and Website Terms of Service Review Checklist: A Practical Checklist.

A. Promise to pay for use.

For each [unit or use] of the [Materials], whether or not such use would require a license under copyright law, Recipient shall pay Provider [amount or formula] within [days] of [event].

Note: The "whether or not" language ties payment to use of the materials, including their ideas and data, and separates the debt from infringement. Wrench LLC v. Taco Bell Corp., 256 F.3d 446 (6th Cir. 2001); Aronson v. Quick Point Pencil Co., 440 U.S. 257 (1979).

B. Submission terms for pitches.

Recipient agrees to review the Submission for the purpose of evaluating a possible transaction with Provider. If Recipient uses the Submission or any idea or concept in it in any [product], Recipient shall pay Provider [the reasonable value of that use, or stated amount], and shall [credit]. Nothing in this agreement transfers any right in the Submission.

Note: Written terms beat implied ones. Recipients who want the reverse should use a submission release, which waives any such implied promise. Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424 (2d Cir. 2012) shows how litigation runs without one.

C. Confidentiality.

Recipient shall hold the Confidential Information in confidence, shall use it only for [Purpose], shall limit access to those with a need to know who are bound by equivalent duties, and shall return or destroy it on request. These duties apply regardless of whether the Confidential Information is protected by copyright or any other intellectual property right.

Note: The Brief for the United States as Amicus Curiae, ML Genius Holdings LLC v. Google LLC, No. 22-121 used a confidentiality agreement as a leading example of a right that is not equivalent to section 106. Montz v. Pilgrim Films & Television, Inc., 649 F.3d 975 (9th Cir. 2011) (en banc); Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992).

D. Field of use.

Licensee may use the [Software or Data] solely for [Licensee's] internal business purposes in [field], and shall not use it to process data for or provide services to any third party.

Note: National Car Rental System, Inc. v. Computer Associates International, Inc., 991 F.2d 426 (8th Cir. 1993); Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079 (9th Cir. 2005). State the limit expressly. Universal Instruments Corp. v. Micro Systems Engineering, Inc., 924 F.3d 32 (2d Cir. 2019) is what can happen when the limit depends on negative implication.

E. Covenants versus conditions.

The obligations in Section [] are covenants of Licensee and not conditions to or limits on the scope of any license granted in this Agreement. [Or: The grant in Section [] is expressly conditioned on [__].]

Note: Decide which you want. MDY Industries, LLC v. Blizzard Entertainment, Inc., 629 F.3d 928 (9th Cir. 2010) says breach of a condition can be infringement, while breach of a covenant sounds in contract. Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008) treats certain open source terms as conditions. Your choice affects forum, remedies, and preemption.

F. Affirmative deliverables.

Licensee shall [deliver complete corresponding source code, submit quarterly usage reports, or permit annual audit on [days'] notice], and Licensor may enforce this obligation by specific performance.

Note: Vizio is the example. Copyright gives no one a right to receive something.

G. Website access terms.

You must [click "I agree"] before creating an account or using the API. You may access the Services only through [interfaces], at rates no greater than [limit], and you may not create accounts by automated means, misrepresent your identity or the identity of any automated agent, or circumvent technical limits. Access to [non-public data] is available only under a separate written agreement, at the fees stated in [schedule].

Note: Require real assent (Berman v. Freedom Financial Network, LLC, 30 F.4th 849 (9th Cir. 2022); Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014)). Focus on access, identity, and capacity, in light of the line between X Corp. v. Bright Data Ltd., No. C 23-03698 WHA (N.D. Cal. May 9, 2024) and X Corp. v. Bright Data Ltd., No. C 23-03698 WHA (N.D. Cal. Nov. 26, 2024). A term that merely bans copying user-owned content across the public internet is the weakest kind, according to both X Corp. v. Bright Data Ltd., No. C 23-03698 WHA (N.D. Cal. May 9, 2024) and the Brief for the United States as Amicus Curiae, ML Genius Holdings LLC v. Google LLC, No. 22-121. Platform Liability Toolkit: Terms of Service, Notice Procedures, and Litigation Defenses has related language.

H. Likeness.

Performer grants Company the right to use Performer's name and likeness [in the Work and in advertising for the Work]. Any use of Performer's name or likeness to advertise any other product or service requires Performer's separate written consent and payment of [fee].

Note: This puts a contract on top of the line drawn in Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017) and Toney v. L'Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2005). Performers often assume a publicity claim will protect them against distribution of a recording, and Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006) says it may not, so the contract must do it. Right of Publicity Toolkit: Releases, NIL Agreements, and Takedown Demands has fuller forms.

I. Choice of law and forum.

This Agreement is governed by the laws of [State], without regard to conflict of laws rules. The parties agree that the [state or federal] courts of [County, State] have exclusive jurisdiction over claims arising from this Agreement, except that claims arising under the Copyright Act shall be brought in federal court.

Note: Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424 (2d Cir. 2012) needed a center-of-gravity analysis because no choice of law clause existed. Parties cannot confer federal jurisdiction, and a clause does not stop complete preemption analysis, but it can affect which state law supplies elements and may support a waiver argument on removal.

Tool 12: Pre-suit letter on preemption and fees

Purpose: set up later arguments, including a fee request. Owner: defense counsel. Timing: on receipt of a demand or a draft complaint.

Re: [Plaintiff's] demand dated [date]

Dear [Counsel]:

We represent [Client]. We have reviewed your letter. As we read it, your client's complaint is that [Client] [reproduced, adapted, distributed, or displayed] [work].

Under 17 U.S.C. § 301(a), a state law claim that seeks to vindicate rights equivalent to those in 17 U.S.C. § 106, in a work within the subject matter of copyright, is governed exclusively by federal law. Courts have held that this includes claims labeled as unjust enrichment, misappropriation, and conversion of intangible property. [Cite two controlling cases.] Courts in [Circuit] have also held that such claims are removable and that a claim so preempted is subject to the Copyright Act's limitations period and fee provisions. [Cite.]

We do not suggest that every claim your client might bring is preempted. If your client contends that [Client] made a specific promise or owed a specific duty separate from copyright, please identify the document or communication so that we can evaluate it. [Client] reserves all rights, including the right to seek fees under 17 U.S.C. § 505.

Please preserve all documents relating to this matter.

Sincerely, [Name]

Drafting notes. Fees are discretionary under Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) and Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016), and Rosciszewski v. Arete Associates, Inc., 1 F.3d 225 (4th Cir. 1993) is the authority for applying 17 U.S.C. § 505 after complete preemption. Be accurate. A threat that overstates the law will read badly as an exhibit. For the letter's format and escalation options, see Responding to an Image Copyright Infringement Demand: A Practical Guide when the demand concerns images.

Tool 13: Citation cautions

Purpose: avoid errors that a careful clerk will catch. Owner: whoever cite-checks the brief. Timing: before filing.

This toolkit offers general templates and is not legal advice for any one dispute. Every form here needs adapting to your facts and your circuit before use.

Related Documents

Related Articles

• Copyright Preemption Under Section 301: When Federal Law Wipes Out Your State Law Claim: the doctrine behind the chart.
• Data Scraping After hiQ v. LinkedIn: Copyright, Contract, and Computer Fraud Claims: context for Tools 3J and 11G.
• Name, Image, Likeness, and Digital Replicas: The ELVIS Act, the NO FAKES Act, and Deepfake Law: context for Tool 11H.

Related Guides

• Pleading Around or Moving to Dismiss on Copyright Preemption: A Practical Guide: how and when to use these tools.
• Getting Into or Staying Out of Federal Court: A Practical Guide to Jurisdiction and Removal: general removal strategy.

Related Checklists

• Copyright Preemption Analysis Checklist: A Practical Checklist: the count-by-count review.
• Drafting a Nondisclosure Agreement Checklist: A Practical Checklist: for Tool 11C.

Related Toolkits

• Federal Jurisdiction Toolkit: Notices of Removal, Remand Motions, and Jurisdictional Allegations: general notice and remand forms.
• Copyright Infringement Litigation Toolkit: Similarity Charts, Expert Reports, and Filtration Analyses: for a federal count, once pleaded.
• Copyright Licensing and Clearance Toolkit: Permissions, Rights, and Chain of Title: license paper that can head off these disputes.