Pleading Around or Moving to Dismiss on Copyright Preemption: A Practical Guide

The notice lands in a small firm's inbox on a Thursday afternoon. The firm filed a plain state court complaint for a local surveying company: breach of contract, unjust enrichment, and conversion, all over a set of plat drawings that a former subcontractor kept using after the relationship ended. There is no federal claim in it. The document in the inbox says "Notice of Removal," cites a statute the lawyer last read in law school, and is followed within the week by a motion arguing that the Copyright Act wiped out two of the three counts and that the third is a disguised infringement claim. The client asks a reasonable question. "We never said anything about copyright. How is this a copyright case?"

This guide is for the lawyer holding that notice, for the lawyer who filed it, and for anyone drafting a complaint who would like to avoid the conversation entirely. For the doctrine at full length, read the companion article, Copyright Preemption Under Section 301: When Federal Law Wipes Out Your State Law Claim. This document is about what to do, in what order.

The short answer

• For plaintiffs, facts come before theories. Ask what the defendant did besides copying. If the honest answer is "nothing," and your client owns the copyright, you probably want a federal infringement claim, and you need to think about registration now.
• A claim survives on its substance. Courts read past labels, so the extra element must be a real one with facts behind it: a promise to pay, a duty of confidence, a deception that obtained the material, harm to a server, or possession of a physical object.
• Unjust enrichment is the weakest count in nearly every complaint. Plead it only if your state's law and your facts give it something more than use without payment.
• For defendants, removal is a strategic decision with a 30-day clock. One preempted claim can carry the case to federal court, but a remand can bring a fee request, and a fast amendment can now undo the removal.
• Preemption is the defendant's burden. It is ordinarily an affirmative defense, and at the pleading stage it must appear from the complaint. Courts decide it as a question of law, reviewed de novo on appeal.
• Post-removal amendments now matter. Under Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025), a plaintiff who amends away the federal basis for removal is entitled to remand. If the court dismisses the claim first, it keeps discretion over the rest. Both sides should plan for that race.
• Winning preemption has consequences. The prevailing defendant may seek fees under 17 U.S.C. § 505, and the plaintiff may face a three-year limitations period under 17 U.S.C. § 507(b).

Before anything else: three facts and one map

Whichever side you are on, four questions orient everything.

Who owns the copyright, if there is one? A plaintiff who owns the work has a federal claim to fall back on. A plaintiff who does not may have nothing, because only the legal or beneficial owner of an exclusive right can sue under 17 U.S.C. § 501(b). That difference shapes every other choice. Licensing platforms, performers under work for hire agreements, and data compilers all land on the bad side of it. Genius did not own the lyrics in ML Genius Holdings LLC v. Google LLC, No. 20-3113 (2d Cir. Mar. 10, 2022) (summary order), and the plaintiff in Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008) lacked copyright standing. Neither fact prevented preemption.

What was fixed? The test covers works "fixed in a tangible medium of expression." A purely oral idea is outside it, under Montz v. Pilgrim Films & Television, Inc., 649 F.3d 975 (9th Cir. 2011) (en banc). Get every email, deck, treatment, screenshot, and voicemail before characterizing anything.

What did the defendant actually do? Write it down in plain verbs. Copied, adapted, distributed, displayed, performed: those are section 106 verbs. Promised, lied, broke in, overloaded, kept the physical drawings, disclosed in breach of confidence: those are the ones that can carry a state claim.

Which circuit? The map matters more than most lawyers expect.

Read your circuit's newest cases before relying on this table. The law here turns on details.

Part one: the plaintiff's sequence

Step 1 (before drafting): build the conduct inventory

Who does it: the lead lawyer with the client, ideally with the client's documents open. Allow a few hours for a modest dispute. It is the cheapest work in the case and it controls everything after it.

Make a two-column list. On the left, every act by the defendant. On the right, whether a copyright owner could complain about that act under section 106. A row reading "reproduced our manual on its website" goes on the copying side. A row reading "told us it had deleted the files, then kept using them" may not. A row reading "kept the original survey notebooks" clearly does not.

Then ask what relationship existed. Was there a signed agreement? An email exchange about price? A pitch meeting with an obvious purpose? An NDA? A partnership? An employee or contractor relationship? Each of these is a possible source of an extra element, and Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992), Montz v. Pilgrim Films & Television, Inc., 649 F.3d 975 (9th Cir. 2011) (en banc), and Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004) all rest on one or another of them.

If the left column is all copying and the relationship column is empty, stop thinking about pleading around preemption. You have a copyright case or no case.

Step 2: decide whether to plead the federal claim

This is a real choice with costs on both sides, and it deserves a conversation with the client.

Reasons to plead copyright: your client owns the work. The core wrong is copying. Statutory damages and fees may be available if registration was timely under 17 U.S.C. § 412. You will get to federal court anyway. And a preempted state claim gets you nothing, while a timely infringement claim gets you a remedy.

Reasons not to: you do not own the work. You have not registered and need time under 17 U.S.C. § 411(a) and Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019). The works are not substantially similar in protected expression, as in Grosso v. Miramax Film Corp., 383 F.3d 965 (9th Cir. 2004), where the copyright claim failed and the idea contract claim was what remained. Or your theory really is about something else, as in Software Freedom Conservancy, Inc. v. Vizio, Inc., No. 8:21-cv-01943-JLS-KES (C.D. Cal. May 13, 2022), where the plaintiff sought source code under a contract and said it was not the copyright holder at all. A plaintiff "may ignore the federal question," the court said in quoting another decision, and limit its causes of action as it wishes.

If you plead both, plead the state claims in the alternative under Fed. R. Civ. P. 8 and make each one stand on its own facts. A count that incorporates every copying paragraph by reference invites the argument that it is the copyright claim again. Also check limitations for the federal claim first. Evaluating the Timeliness of a Copyright Claim: A Practical Guide covers how to do that, and it matters because the three-year clock in 17 U.S.C. § 507(b) can apply even if you never plead copyright, as the promoters in Ritchie v. Williams, 395 F.3d 283 (6th Cir. 2005) learned.

Step 3: frame each claim around the non-copying wrong

Contract with a promise to pay. This is the best-supported theory in the area. Wrench LLC v. Taco Bell Corp., 256 F.3d 446 (6th Cir. 2001) says the extra element is the promise, and it is the failure to pay rather than the use alone that breaches. 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) agree for implied-in-fact contracts. Allege offer, condition, acceptance with knowledge, use, and nonpayment. Allege industry custom if that is how the promise arises.

Sample allegations for an idea submission:

12. [Plaintiff] submitted the [Concept] to [Defendant] for the purpose of selling it, and [Defendant] knew that purpose. [Defendant's employee] scheduled the [date] meeting expressly to hear the pitch.

13. In the [industry], it is standard practice that a person who hears a pitch and later uses the concept pays the person who pitched it. [Defendant] knew that practice, and had paid for submitted concepts on [occasions].

14. By accepting the disclosure with that knowledge, [Defendant] agreed to pay the reasonable value of the [Concept] if it used the [Concept].

15. [Defendant] used the [Concept] in [product] and has not paid. [Plaintiff] does not in this claim seek to control copying of any work; it seeks the payment [Defendant] promised.

Check state contract law separately. Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424 (2d Cir. 2012) shows that a court may need a choice of law analysis on open price terms, and it noted that New York law was less clear than California's on that point.

Contract with a restriction that copyright does not supply. A limit on who may use software, for what internal purpose, on which machines, or in what field is the classic survivor under National Car Rental System, Inc. v. Computer Associates International, Inc., 991 F.2d 426 (8th Cir. 1993) and Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079 (9th Cir. 2005). An audit right, an exclusivity promise, a delivery duty, or an obligation to publish source code is even cleaner. Avoid drafting the claim as "breached the agreement by copying the Work." Instead say what the agreement required that copyright law would not.

Exceeding a license. Be careful. In Universal Instruments Corp. v. Micro Systems Engineering, Inc., 924 F.3d 32 (2d Cir. 2019), a claim that a licensee exceeded the scope of a license by modifying code, with the prohibition implied from silence, was preempted. If the license contains an express covenant, quote it. If the wrong is really outside the scope of the grant, consider pleading infringement as well.

Breach of confidence and NDA. Montz v. Pilgrim Films & Television, Inc., 649 F.3d 975 (9th Cir. 2011) (en banc) treats the confidential relationship as its own extra element. Allege the circumstances of confidence, and that the material was actually confidential when disclosed. Drafting Enforceable Non-Disclosure Agreements for Technology Transactions explains the document that makes this easy.

Trade secrets. Federal and state trade secret claims are the most reliable route for valuable non-public material. GlobeRanger Corp. v. Software AG United States of America, Inc., 836 F.3d 477 (5th Cir. 2016) collects the circuits, and subsection (d) of Section 301 protects a federal claim under 18 U.S.C. § 1836. Allege what the secret is, the measures protecting it, and how it was improperly acquired. Trade Secret Misappropriation Litigation Under the Defend Trade Secrets Act: A Practical Guide covers the claim itself. Keep the theft-by-copying language out of companion counts: Spear lost its conversion and state theft claims on that language, and those counts opened the door to federal court.

Conversion. Plead it only for physical things. Spear Marketing, Inc. v. BancorpSouth Bank, 791 F.3d 586 (5th Cir. 2015) and Carson v. Dynegy, Inc., 344 F.3d 446 (5th Cir. 2003) separate the survivors from the rest, and OpenRisk, LLC v. MicroStrategy Services Corp., 876 F.3d 518 (4th Cir. 2017) shows what happens with data. If what you want back is a hard drive, say hard drive.

Fraud and deception. The deception must obtain the work. In ML Genius the plaintiff alleged concealment afterward, and the court held that insufficient. Plead with the particularity required by Rule 9(b). Do not treat it as a boilerplate add-on, since SCO Group, Inc. v. International Business Machines Corp., 879 F.3d 1062 (10th Cir. 2018) is about New York's bad faith element and is not the law everywhere.

Tortious interference. Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079 (9th Cir. 2005) and MDY Industries, LLC v. Blizzard Entertainment, Inc., 629 F.3d 928 (9th Cir. 2010) support claims based on inducing someone to breach a real use limitation in a contract. A claim that the defendant's copying merely stole your licensing opportunities is much weaker.

Right of publicity. Ask whether the use is the work itself or something more. If a person's identity was attached to a separate product, or a clip was used to imply an endorsement, allege that specifically, following Toney v. L'Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2005) and Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001). If the claim is about the distribution of a recording or photograph as such, Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006), Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017), and Melendez v. Sirius XM Radio, Inc., 50 F.4th 294 (2d Cir. 2022) are the obstacles. Bringing or Defending a False Endorsement Claim: A Practical Guide covers the Lanham Act alternative that subsection (d) leaves alone.

Platform and scraping claims. Separate access from content. Allege what the scraper did to your systems and what it represented to get in, and tie damages to that. X Corp. v. Bright Data Ltd., No. C 23-03698 WHA (N.D. Cal. May 9, 2024) and its later order X Corp. v. Bright Data Ltd., No. C 23-03698 WHA (N.D. Cal. Nov. 26, 2024) show that the same complaint can be sliced, with access claims moving forward and copying claims gone. For the federal access theory, see Bringing or Defending a Civil Computer Fraud and Abuse Act Claim: A Practical Guide.

Step 4: edit for verbs, then check honesty

Read each count as a skeptical federal judge. In GlobeRanger Corp. v. Software AG United States of America, Inc., 836 F.3d 477 (5th Cir. 2016) the court looked past the elements to the actual misconduct alleged, and ML Genius relied on the complaint's repeated allegations about misappropriated website content to decide what the plaintiff was really claiming. Search the complaint for copy, reproduce, republish, distribute, display, derivative, and adapt. Each use should be necessary to the story and not the source of the injury.

Then step back. Editing verbs cannot create facts, and Fed. R. Civ. P. 11 applies. It is one thing to describe a confidentiality breach accurately rather than as "copying." It is another to pretend a pure copying dispute is about something else. Spear is the warning: the plaintiff there carefully defined its trade secrets as know-how and ideas, and the Fifth Circuit held they were fixed in the software interface anyway.

Consider this worked example. Suppose Galloway Kiln Works licensed its glaze chemistry manual to a pottery school under a signed agreement that limits use to enrolled students, requires a per-student fee, and bars disclosure of the formulas. The school posts the manual to a public site and stops paying.

The weak version reads: "Defendant copied and published Plaintiff's manual without authorization and was unjustly enriched." That is a copyright claim in a state court caption, and possibly a preempted one, especially in the Second or Sixth Circuit.

The strong version has three counts. Count one, for unpaid per-student fees, rests on an express promise to pay under Wrench. Count two, for breach of the confidentiality covenant, rests on a duty of confidence. Count three, for trade secret misappropriation of the formulas, rests on improper disclosure under a duty, assuming the formulas are truly secret and were kept that way. A separate federal infringement count is available if Galloway owns and has registered the manual. The act of posting appears in each count as an event, not as the wrong.

Step 5: decide what to do with unjust enrichment

Most plaintiffs should either drop it or give it specific content. 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), Del Madera Properties v. Rhodes & Gardner, Inc., 820 F.2d 973 (9th Cir. 1987), and R.W. Beck, Inc. v. E3 Consulting, LLC, 577 F.3d 1133 (10th Cir. 2009) show the default result. Exceptions exist when the state's elements require more than use, such as Texas's undue advantage theory in Digital Drilling Data Systems, L.L.C. v. Petrolink Services, Inc., 965 F.3d 365 (5th Cir. 2020), or when the claim is about a benefit outside copying. Reddit, Inc. v. Anthropic PBC, No. 25-cv-05643-TLT (N.D. Cal. Mar. 30, 2026), a remand order, treated a claim predicated on bypassed technical safeguards and contract restrictions as different, while distinguishing cases resting on use alone.

Weigh what the count adds. A weak unjust enrichment count can hand the defendant its anchor for removal. In GlobeRanger Corp. v. Software AG, 691 F.3d 702 (5th Cir. 2012), a single likely preempted conversion count was enough to keep the case in federal court. If forum matters to your client, every preempted count is a risk.

Step 6: respond to removal

Who does it: the lead lawyer, within days. A removal changes the calendar immediately.

First, identify the removal theory, and check timeliness and consent. A motion based on a procedural defect must be filed within 30 days of the notice under 28 U.S.C. § 1447(c). A lack of subject matter jurisdiction can be raised at any time, but waiting costs money and credibility.

Second, decide between two responses, or combine them.

Move to remand on the complaint as filed. Argue that no claim satisfies both prongs. The burden is on the defendant, and courts in the Ninth Circuit strictly construe removal, as Vizio and Reddit both recite. Wisconsin Interscholastic Athletic Ass'n v. Gannett Co., 658 F.3d 614 (7th Cir. 2011) and the dissent in Cambridge Literary Properties, Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co. KG, 510 F.3d 77 (1st Cir. 2007) support an argument that complete preemption is doubtful at all, which you should preserve even in a circuit that has rejected it.

Amend under Royal Canin. If a count is truly preempted, and your client would rather be in state court with what remains, amend to drop it. Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025) holds that when the amendment removes the federal basis, the court loses supplemental jurisdiction and must remand. Fed. R. Civ. P. 15 generally allows one amendment as of right within 21 days after service of a Rule 12(b) motion. The older contrary rule in Spear Marketing, Inc. v. BancorpSouth Bank, 791 F.3d 586 (5th Cir. 2015) is hard to square with that holding, so read any local authority carefully.

Three cautions apply. The court will still ask whether the amended claims are themselves preempted. An amendment does not cleanse claims that are copying in substance. And timing is everything. If the court rules first and dismisses the preempted counts, § 1367(c) gives it discretion to keep the case, though Royal Canin notes it ordinarily should not.

Third, ask for fees under Section 1447(c) if the removal lacked an objectively reasonable basis, under Martin v. Franklin Capital Corp., 546 U.S. 132 (2005). Given how many circuits accept the doctrine, a fee award is more likely when the complaint plainly lacks copyright-equivalent conduct than when the theory is close.

Fourth, remember the limit on appeal. A remand order is generally not reviewable under § 1447(d). A denial of remand can be reviewed after judgment, and it is reviewed de novo. Spear's plaintiff did exactly that, and lost.

Consider how this plays out. Suppose Ana Reyes, a muralist in El Paso, sues a brewery in Texas state court. She alleges that the brewery agreed to pay a fee for a one-location mural and then put her design on cans. She pleads breach of contract, unjust enrichment, and conversion of "her artwork." The brewery removes, relying on the conversion and enrichment counts, and moves to dismiss all three. Under Spear Marketing, Inc. v. BancorpSouth Bank, 791 F.3d 586 (5th Cir. 2015) and Carson v. Dynegy, Inc., 344 F.3d 446 (5th Cir. 2003), the conversion count is in trouble because no physical object was taken. Unjust enrichment is weak too. The contract count has a real fee promise, and possibly a field-of-use limit.

Reyes has three moves. She can oppose on the existing complaint and likely lose two counts while staying in federal court on a claim that may be supplemental. She can amend now to keep only the contract count and seek remand under Royal Canin, arguing that a promise to pay is the extra element. Or, if she owns and has registered the design, she can add an infringement count and stay in federal court with statutory remedies possibly in reach. The third may be the most valuable if registration timing works. The second is better if she wants the local forum and her contract is strong. That is a decision for Reyes, not a drafting detail.

A short letter can also make the sequence easier. Sample language for the plaintiff's side:

We have reviewed your Notice of Removal and motion. [Plaintiff] intends to file an amended complaint by [date] under Rule 15(a)(1)(B), which will not assert [Counts II and III]. Because the remaining claim for breach of the [date] agreement rests on [Defendant's] promise to pay [fee], it does not arise under the Copyright Act. Please let us know by [date] whether [Defendant] will stipulate to remand under 28 U.S.C. § 1447(c) and Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025), so that neither side incurs the cost of further briefing.

A defendant receiving that letter should compare the amended claim against Wrench and Universal Instruments before agreeing. If the only breach alleged is copying, the case for keeping it is real. If it is unpaid fees, stipulating may save the client money, and the merits defenses travel with the case.

Step 7: oppose the motion to dismiss

Frame the burden first. Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424 (2d Cir. 2012) says the defendant must demonstrate the elements of preemption, and preemption is ordinarily a defense, so dismissal requires that it appear from the complaint. Then take the two prongs in turn.

On the first prong, concede what is obvious so you can be believed on the rest. If your concept is written down, Montz and Forest Park will treat it as within the subject matter, unless you are in the Eleventh Circuit under Dunlap v. G&L Holding Group, Inc., 381 F.3d 1285 (11th Cir. 2004).

On the second, go count by count. Quote your own allegations of the extra element. Distinguish cases on what the promise or duty was. Use the Brief for the United States as Amicus Curiae, ML Genius Holdings LLC v. Google LLC, No. 22-121 if your contract was a real bargain, because it says Section 301(a) "ordinarily does not preempt" agreed exchanges of access for commitments about use. Note its limits, since the same brief called the Genius browsewrap atypical.

Ask for leave to amend, and be specific about what you would add. In Melendez v. Sirius XM Radio, Inc., 50 F.4th 294 (2d Cir. 2022), the Second Circuit affirmed dismissal with prejudice because the plaintiff could not say what new allegations would overcome preemption. If you own the work, ask in the alternative for leave to replead the claim as infringement, since Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004) says a completely preempted claim is to be dismissed for failure to state a claim.

Part two: the defendant's sequence

Step 1 (day one): calendar and collect

The removal window is 30 days under 28 U.S.C. § 1446, normally starting with formal service under Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999). A later pleading or other paper can restart the clock in some cases under Section 1446(b)(3). All properly joined and served defendants must join or consent to a removal under Section 1441(a), as Section 1446(b)(2)(A) requires, and you should confirm that immediately. An untimely attempt can be fatal, and Ultraflo Corp. v. Pelican Tank Parts, Inc., 845 F.3d 652 (5th Cir. 2017) describes one. If you do not remove, your state court response deadline controls. If you do, Fed. R. Civ. P. 81(c) generally gives you the longest of 21 days from receiving the pleading, 21 days from service, or 7 days after the notice of removal is filed.

Collect the contract, the works, the registration status, any correspondence, and the plaintiff's public statements. Who does it: a lawyer and the client's business lead.

Step 2 (days 1 to 10): decide whether you want federal court

Removal is a choice with real downsides, and the decision belongs with the client.

Ask the hardest question: what will the plaintiff do on day 15? After Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025), a plaintiff can amend out the claims that made removal proper. If the only preempted counts are throwaways, as unjust enrichment often is, you may spend real money for a short federal visit and end up back in state court facing only the plaintiff's strongest claims. Removal is most valuable when the core of the case is copying, so that an amendment cannot save much. It is least valuable when the complaint's heart is a genuine promise to pay.

Remember that you do not have to remove to raise preemption. Ordinary preemption is a defense you can assert in state court, and the state court can dismiss on it.

A concrete example shows how the decision can go. Suppose Brightwater Learning, an online course company, is sued in state court by a former instructor. The complaint alleges that Brightwater promised a 20 percent revenue share on her course, stopped paying when her contract ended, and went on selling the course. It pleads breach of contract, accounting, and unjust enrichment. Brightwater's lawyers see that the unjust enrichment count looks preempted and can support removal.

They also see the rest. If she drops that count, what remains is a revenue share promise, which is the Wrench extra element. Removal then buys a few months and a fee motion on the other side. There may be a better path if the agreement assigned the course to Brightwater, or if the contract expired: moving in state court on the contract's terms and pleading preemption as a defense to any claim that survives on use alone. Had the complaint instead been a demand that Brightwater stop selling the course because she owns it and never agreed, the core would be copying, and removal would be much more attractive.

Step 3: prepare the notice of removal

The notice is a short and plain statement of the grounds under 28 U.S.C. § 1446(a), with all state court process and pleadings attached. Good notices have the following qualities.

They identify specific counts and specific allegations by paragraph number, rather than the "essence" of the case. They walk through both prongs and tie them to controlling authority. They cite the Fourth, Second, Sixth, and Fifth Circuit decisions and acknowledge any contrary local authority. They invoke 28 U.S.C. § 1338(a), 28 U.S.C. § 1441, and 28 U.S.C. § 1367 for the rest. They say that they take the allegations as pleaded and concede nothing about ownership, copying, or validity. They cite 28 U.S.C. § 1454 in the alternative only if a party has actually pleaded a claim arising under the Act, or if counsel is prepared to argue the point that a completely preempted claim counts. We did not find appellate authority on that second question. And they do not rest on a counterclaim, since Vaden v. Discover Bank, 556 U.S. 49 (2009) says a completely preempted counterclaim remains a counterclaim for arising-under purposes, though Section 1454 can apply to a pleaded copyright counterclaim.

File promptly in state court as well, as Section 1446(d) requires. Our general forms are in Federal Jurisdiction Toolkit: Notices of Removal, Remand Motions, and Jurisdictional Allegations, and copyright-specific paragraphs are in the Copyright Preemption Toolkit: Extra Element Charts, Removal Papers, and Motion Outlines.

Step 4: move to dismiss

Move under Rule 12(b)(6). Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004) and ML Genius treat a completely preempted claim as one to be dismissed for failure to state a claim.

Structure the brief around the claims, with a short table if there are many. For each claim: what the work is, why it is within sections 102 and 103 even if unprotectable, what act is complained of, which section 106 right that act implicates, and why any supposed extra element changes scope rather than nature. Use the complaint's own words. Quote its verbs.

Attack the extra element on its own terms. If the plaintiff pleads a promise, ask whether the promise is only not to copy, under Wrench and Universal Instruments. If it pleads an implied contract, check whether the facts show assent or only use, because Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424 (2d Cir. 2012) requires actual contract elements and warns that labels are not enough. If it pleads browsewrap terms, argue formation separately using Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014) and Berman v. Freedom Financial Network, LLC, 30 F.4th 849 (9th Cir. 2022), and cite the Solicitor General's characterization of such terms. If it pleads bad faith, cite Altai and ML Genius. If it pleads fraud, check whether the deception obtained the material or came after.

Brief conflict preemption in the alternative where it fits. Jackson v. Roberts (In re Jackson), 972 F.3d 25 (2d Cir. 2020) sets out a balancing test weighing the substantiality of the state interest against conflict with the copyright system, and X Corp. v. Bright Data Ltd., No. C 23-03698 WHA (N.D. Cal. May 9, 2024) used a similar framework for terms of service. It is especially useful when the name or data at issue might fall outside Section 301(a) but the claim would still burden the exploitation of a work. In California, consider an anti-SLAPP motion for expressive uses, as in Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017), after checking whether your federal court applies the statute to your claim.

Be careful about what you say on the merits. Telling the court that "this is really a copyright claim" is not an admission that anything was infringed, but say so expressly. Avoid arguing that the plaintiff's work has no copyright protection in a way that undermines your subject matter argument. Under ML Genius and Ultraflo Corp. v. Pelican Tank Parts, Inc., 845 F.3d 652 (5th Cir. 2017), lack of protection does not defeat the first prong, so you can say both things if you say them precisely.

Suppose Tern Harbor Media, a podcast network, is sued by a former host who recorded episodes under a work for hire agreement. Her state complaint alleges a California publicity claim and unjust enrichment because the network keeps streaming old episodes and runs short clips to promote the archive. The network removes and moves to dismiss. The motion's core is that streaming the episodes and using excerpts to promote them are uses of the copyrighted work itself, under Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006), Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017), and Melendez v. Sirius XM Radio, Inc., 50 F.4th 294 (2d Cir. 2022). If the complaint also alleges that the network put her name on a mattress ad read by someone else, the network should expect that part to survive, and perhaps should not remove on the strength of the rest. Its best move may be to seek dismissal of the archive theory and defend the mattress ad on the merits.

Step 5: if you lose the remand fight

You cannot appeal most remand orders. But the state case is not over, and neither is the defense. A remand ruling decides jurisdiction. Plead preemption as an affirmative defense in your state answer, and raise it by demurrer, motion, or summary judgment as the state's rules allow. In Vizio, the defendant argued in state court that the remand order had no bearing on its ability to do so. Expect the plaintiff to argue the opposite if a federal judge has already reasoned through the second prong, and research the state's law on the effect of a remand order before you write the motion.

Separately, watch for fee requests under Section 1447(c). A careful notice with specific paragraph citations is your best protection.

Step 6: if you win, consider fees and judgment form

Rosciszewski v. Arete Associates, Inc., 1 F.3d 225 (4th Cir. 1993) held that a claim completely preempted under Section 301(a) becomes a claim under Title 17, so 17 U.S.C. § 505 applies, even when the plaintiff never pleaded copyright. The factors in Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) and Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016) give the court discretion, with substantial weight on the objective reasonableness of the losing party's position. Ask for the judgment to state its basis, in case of a later fee motion. A registered plaintiff with a colorable theory is a poor target. A plaintiff who ignored a clear warning letter is a better one. So send that letter early. Consider reading the fee section of Copyright Damages and Remedies: Statutory Damages, Profits, Injunctions, and Fees before you do.

Timeline at a glance

Common mistakes

Assuming a contract label is a shield. Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424 (2d Cir. 2012) says preemption cannot be avoided simply by labeling a claim breach of contract, and ML Genius Holdings LLC v. Google LLC, No. 20-3113 (2d Cir. Mar. 10, 2022) (summary order) shows what happens to terms that only forbid copying.

Confusing implied in fact with implied in law. This is the most costly confusion in the area. Wrench LLC v. Taco Bell Corp., 256 F.3d 446 (6th Cir. 2001) calls the difference crucial. A complaint that says "implied contract" with no facts about assent will be read as quasi-contract and dismissed.

Saying the idea was never protected, so copyright cannot apply. Courts have rejected this since Harper & Row, Publishers, Inc. v. Nation Enterprises, 723 F.2d 195 (2d Cir. 1983). It works only in the Eleventh Circuit, and for truly oral ideas elsewhere.

Pleading conversion of "confidential information." That language lost in Spear Marketing, Inc. v. BancorpSouth Bank, 791 F.3d 586 (5th Cir. 2015), and a similar conversion count in GlobeRanger Corp. v. Software AG, 691 F.3d 702 (5th Cir. 2012) was enough to keep the case in federal court. Conversion is for things.

Relying on bad faith or intent. Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992) and Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004) are clear that awareness and intent alter scope, not nature. Outside the specific New York theory in SCO Group, Inc. v. International Business Machines Corp., 879 F.3d 1062 (10th Cir. 2018), which the Second Circuit declined to follow as a general rule, this will not save a claim.

Forgetting that the plaintiff might not own anything. Defendants sometimes argue preemption and then assume the plaintiff will have a federal claim. Plaintiffs sometimes assume that non-ownership keeps them out of Section 301. Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008), Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146 (9th Cir. 2010), and ML Genius Holdings LLC v. Google LLC, No. 20-3113 (2d Cir. Mar. 10, 2022) (summary order) show non-ownership gives the plaintiff no help, and Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146 (9th Cir. 2010) shows it does not matter that the defendant lacks rights either.

Removing on the essence of the case. Bare characterizations invite remand. Remand orders in Vizio and Reddit turned on the actual obligations the plaintiffs alleged.

Relying on old authority on amendments. Any brief citing Spear or similar cases for a time-of-filing rule on post-removal amendments should address Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025) directly.

Citing a summary order as if it were binding. ML Genius is non-precedential by its own terms. It is persuasive and it reflects Second Circuit thinking, but a brief should say what it is.

Treating In re Jackson as only a Section 301 case. The primary holding is implied preemption, and the stage name ruling rests only on implied preemption. A brief that misdescribes it will lose credibility with a careful clerk.

Citing dissents as courts. Some secondary materials describe the First Circuit as doubting complete preemption by citing Cambridge Literary Properties, Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co. KG, 510 F.3d 77 (1st Cir. 2007) at page 99. That passage is Judge Cyr's dissent.

Waiting. The 30-day window, the amendment window, and the remand window run together. The party that plans its sequence on day one usually controls the forum.

Where the law is unsettled

Be candid with the court and client on these points. The Supreme Court has not decided whether Section 301 completely preempts, and it denied review of the contract question in ML Genius on June 26, 2023 (Supreme Court docket, No. 22-121). The courts of appeals divide on whether a promise alone is an extra element. District courts are divided on terms of service and scraping, as X Corp. v. Bright Data Ltd., No. C 23-03698 WHA (N.D. Cal. May 9, 2024) and Reddit show. And we did not find appellate authority working out how Royal Canin applies to completely preempted claims, including what happens when an amended complaint keeps a closely related count. A district court has used the amended pleading in a copyright removal, in D2 Productions, Inc. v. Haynes, No. 4:25-cv-00755 (E.D. Mo. June 10, 2026), and that order also doubted that Section 301 completely preempts at all. It is one district court order. A party's position on any of these should be presented as an argument, not as settled law.

This guide is general information and should not be taken as advice on a specific case. The right course depends on your facts, your circuit, and your client's goals. MC Law handles these disputes on both sides, and we are happy to look at a complaint or a removal notice if a second read would help.

Related Documents

Related Articles

• Copyright Preemption Under Section 301: When Federal Law Wipes Out Your State Law Claim: the full doctrine and leading cases.
• Federal Subject-Matter Jurisdiction: Arising Under, Diversity, Supplemental Claims, and the Defect That Never Waives: the background on jurisdiction and its limits.
• The Copyright Statute of Limitations After Warner Chappell v. Nealy: Discovery, Separate Accrual, and How Far Back Damages Reach: what the three-year period does after recharacterization.
• The Right of Publicity and the First Amendment: Transformative Use, Newsworthiness, and the Limits of Owning a Persona: the other major defense in publicity cases.
• Defending a Trade Secret Claim: Reverse Engineering, Independent Development, Public Disclosure, and Readily Ascertainable Information: defenses once a trade secret count survives preemption.

Related Guides

• Getting Into or Staying Out of Federal Court: A Practical Guide to Jurisdiction and Removal: general strategy on forum.
• Removal and Remand: Getting a Case to Federal Court and Keeping It There: the removal procedure in detail.
• Motions to Dismiss Under Rule 12: A Practical Guide for Plaintiffs and Defendants: Rule 12 practice in general.
• Drafting a Complaint That Survives a Motion to Dismiss: the pleading standard behind Step 3.
• Litigating Substantial Similarity in a Copyright Case: A Practical Guide: the federal claim if you plead one.

Related Checklists

• Copyright Preemption Analysis Checklist: A Practical Checklist: a count-by-count working list for this guide.
• Federal Jurisdiction and Removal Checklist: A Practical Checklist: removal timing and mechanics.

Related Toolkits

• Copyright Preemption Toolkit: Extra Element Charts, Removal Papers, and Motion Outlines: templates for each step.
• Trade Secret Defense Toolkit: Independent Development Records, Public Domain Charts, and Bad Faith Fee Motions: useful if the case survives on a trade secret theory.