Full opinion text
OPINION AND ORDER SCHWARTZ, District Judge. In this action, plaintiff alleges breach of contract, trademark infringement, copyright infringement and related claims arising out of a proposed television series that is currently being developed and produced by defendants. Before the Court is plaintiffs motion for preliminary injunction, and defendants’ cross-motion to dismiss the Amended Complaint. For the reasons set forth below, both motions are granted in part and denied in part. I. Factual Background A. Parties Plaintiff Twentieth Century Fox Film Corporation (“Fox”), a Delaware corporation with its principal place of business in Los Angeles, California, creates, produces, distributes and markets motion pictures and television shows throughout the world. (Fox Amend. Compl. ¶ 10.) Defendant Marvel Enterprises, Inc. (“Marvel”), a Delaware corporation with its principal place of business in New York, is purportedly the largest publisher of comic books in the United States, and creates, distributes, and markets comic books and related goods and merchandise throughout the world. (Id. ¶ 11; Defendants’ Joint Memorandum in Opposition to Plaintiffs Motion for Preliminary Injunction (“Def.Mem.”) at 5.) On occasion, Marvel also licenses to third parties the right to create, produce, distribute, and market motion pictures and television shows based on Marvel’s comic book characters, concepts, themes, and storylines, and collaborates on such projects. (Fox Amend. Compl. ¶ 11.) As more fully explained below, Marvel licensed to Fox certain rights in its X-Men comic book series so that Fox could create, in association with Marvel, theatrical motion pictures based on such property. Marvel also has licensed certain rights to defendant Tribune Entertainment Co. (“Tribune”) so that it may create, in cooperation with Marvel and defendants Fireworks Communications, Inc. and Fireworks Television (US), Inc. (collectively “Fireworks”), a live-action television series called Mutant X. Tribune, a Delaware corporation with its principal place of business in Los Angeles, California, creates, produces, distributes, and markets television shows throughout the United States; the Fireworks companies, which are subsidiaries of Can West Global Communications Corp., a Canadian media concern, both have their principal places of business in California, and create, produce, distribute, and market television shows in the United States and Canada. {Id. ¶¶ 12-13.) Defendants Marvel, Tribune, and Fireworks are hereinafter collectively referred to as “defendants.” B. X-Men Property In 1963, Marvel began publishing a comic book series called X-Men. In a book entitled Ultimate X-Men, co-published by Marvel in 2000, the premise of the X-Men story is described as follows: [The X-Men] were mutants: people born genetically different from the rest of humankind. Some people saw the rise of these superhuman mutants as the next step in human evolution. Many, however, regarded mutants as dangerous freaks, threatening the existence of the ‘normal’ human race. The growing numbers of mutants needed a champion, and they found one in a visionary named Charles Xavier. A mutant himself, Xavier had a dream of a future in which ‘normal’ humans and mutants would live together in peace and harmony. It was to make this dream a reality that Xavier created his organization of young mutants, the X-Men. Peter Sanderson, Ultimate X-Men 9 (2000). The original six characters of the X-Men series were Professor Charles Xavier (aka Professor X), Scott Summers (aka Cyclops), Jean Grey/Marvel Girl (aka Phoenix), the Beast, Bobby Drake (aka Iceman), and Angel (aka Archangel). Also appearing in the original series were villains comprising the Brotherhood of Evil Mutants, in particular Magneto, the nemesis of Professor X, who believed that mutants should adopt violent and revolutionary means in order to claim their rightful place in society. (Fox Amend. Compl. ¶ 17; Declaration of Avi Arad dated June 18, 2001 (“Arad Deck”) ¶¶6, 8(a).) As conceived by Marvel, the X-Men are “metaphors for minorities and other disenfranchised groups ... spanning from the Civil War to Auschwitz to the gay community.” Furthermore, “the philosophical divide between Professor X and Magneto can be likened to that between Martin Luther King, Jr. and Malcolm X, in terms of the way each believes they should pursue their objectives for the mutant population.” (Arad Decl. ¶ 7; see also Transcript of Oral Argument dated July 3, 2001 (“Tr.”) at 59:24-25.) Marvel has “create[d] many new titles spawned from the original X-Men series,” which introduced new characters to the existing universe. (Arad Deck ¶ 8.) Such additional titles include (i) Giant Size X-Men, released in 1975, (ii) The Uncanny X-Men, released in 1980, which supplanted the X-Men title and still continues, (iii) New Mutants, released in 1983, (iv) Alpha Fight, released in 1983, (v) X-Factor, released in 1986, (vi) Wolverine, released in 1988, (vii) Excalibur, released in 1988, (viii) X-Terminator, released in 1988, (ix) X-Force, released in 1991, (x) X-Men Unlimited, a series of short stories released in 1993, (xi) Generation X, released in 1994, (xii) X-Man, released in 1995, and (xiii) Mutant X, which was released in 1998 and ran through 2001. (Id.; Declaration of Joseph Witek, Ph.D. dated June 25, 2001 (“Witek Deck”) ¶¶ 23-25.) According to Marvel, it routinely registers copyrights in its comic books with the United States Copyright Office, and its character names and comic books with the United States Patent and Trademark Office. (Marvel Compl. ¶ 13.) It currently possesses at least ten federal trademark registrations for or incorporating its X-Men mark in connection with various goods and services, including its comic books, magazines, and illustrated stories. (Id. ¶ 16, Ex. A.) C. 1993 Agreement In October 1993, Fox and Marvel entered into an agreement (the “1993 Agreement” or “Agreement”) pursuant to which Marvel licensed to Fox the exclusive right to create, produce, distribute and market theatrical motion pictures based on the “X-Men Property” (or “Property”), which refers to the “X-Men comic book series.” (1993 Agreement ¶ 6.) The scope of the grant of rights was broad, although the media within which they could be exploited (i.e. theatrical motion pictures) was narrow. Paragraph 6 of the Agreement, entitled “Granted Rights,” states that Property to which Fox obtained rights included (i) certain characters specified in Exhibit A to the Agreement, (ii) the so-called “origin stories” of those characters appearing in the story or screenplay of the film, (iii) all individual storylines from individual comic books other than the origin stories, and, in a catch-all provision, (iv) “all other elements relating to the Property and the Characters.” (Id.) (emphasis added). This paragraph also specifies that the rights “include the right to use the title (or subtitle or portion of the title) of the Property or any component of the Property as the title of any Picture or related exploitation.” (Id.) In addition to the $1.6 million purchase price, (Declaration of Thomas Rothman dated June 26, 2001 (“Rothman Deck”) ¶ 10), and a percentage of gross proceeds, (1993 Agreement ¶¶ 4, 5), Marvel was able to reserve, in Paragraph 7 of the Agreement, certain rights for itself in connection with the films to be developed by Fox. Other ancillary rights, which define the scope of Fox’s granted rights as applied to other media, are treated in Paragraph 8, the content of which is at the center of the parties’ contractual dispute in this case. Paragraph 8, entitled “Other Rights,” reads in pertinent part: Marvel reserves all television rights [based on the Property] (other than television rights with respect to the Pictures produced hereunder). However, prior to the reversion (if any) of the Rights ... Marvel shall not, without Fox’s prior written consent, which consent may be withheld in Fox’s sole discretion, produce, distribute or exploit or authorize the production, distribution or exploitation of any live-action motion picture for free television exhibition, pay television exhibition, non-theatrical exhibition, or home video exhibition (on cassettes or discs) or any feature-length animated motion picture for non-theatrical exhibition or home video exhibition (on cassettes or discs). (1993 Agreement ¶ 8.) The possible reversion of rights to Marvel is addressed in Paragraph 9. In effect, this paragraph sets control dates by which Fox must create sequels by requiring reversion where “Subsequent Pictures” are not made within a certain time. {Id. ¶ 9.) The reversion dates set forth in this Paragraph were extended by an amendment to the Agreement signed by the parties on or about October 10, 2000. (5ee “X-Men II” Amendment/Extension ¶ 2(d).) Paragraph 11 further defines the logistics of the production of Fox’s films, by requiring that Marvel must approve: (i) the “fundamental elements” of the story, namely the basic storyline, character integrity, living habitat, and conformity with the so-called “X-Men Handbook” written by Marvel; (ii) the screenplay, to the extent it substantially alters a fundamental element; (iii) costumes; (iv) the photography of scenes, to the extent it substantially alters a fundamental element; and (v) the content of director’s cuts, to the extent it substantially alters a fundamental element. Particularly given the catch-all provision in Paragraph 6, the scope of the license to Fox is broad, encompassing any property contained in the “X-Men Universe” of comic books that Fox “may require” in order to create and produce its films, including the right to use Marvel’s copyrights and trademarks in such property as Marvel would as owner of such rights. However, Exhibit A to the Agreement limits the characters which Fox may exploit to (i) certain “Initial Characters,” comprising the principal and featured characters in the approved story, screenplay, or Marvel’s publications, as well as 15 other “Core Characters” from the X-Men Universe of comics, and (ii) certain “Additional Characters,” who are among the characters from a limited “X-Universe” of seven comic books, which Fox may add by written notice to Marvel. (Ex. A to 1993 Agreement ¶¶ 1, 3, 4.) Finally, Paragraph 18 of the Agreement incorporates certain “Other Terms and Conditions” into the Agreement “[i]n accordance with Fox’s standard Option/Purchase Agreement, but as such agreement would have been modified following good faith negotiation within Fox’s usual parameters taking into account Marvel’s and the Property’s stature.” (1993 Agreement ¶ 18.) While such provisions are generally designed to eliminate the future need for negotiation, this vague provision leaves additional terms and conditions largely open for negotiation based only on unspecified elements of custom. D. X-Men Film Following the 1993 Agreement, Fox spent nearly seven years developing “a story that offered the excitement of mutant superheroes, yet also addressed serious issues of intolerance and bigotry toward them in an entertaining way.” (Plaintiffs Reply Memorandum of Law in Support of its Motion for Preliminary Injunction (“PLRep.”) at 2; Rothman Decl. ¶ 10.) In 1999, Fox began shooting an X-Men film, and, in June and July 2000, launched an extensive media promotional effort as part of a $90 million campaign to “market and distribute ‘X-Men’ theatrically using distinctive imagery and messages.” (Fox Amend. Compl. ¶¶ 24, 26; PI. Rep. at 3.) As part of its publicity efforts, Fox created and released numerous theatrical and television trailers, which featured clips from the film. (Fox Amend Compl. ¶ 26.) On July 14, 2000, Fox released the theatrical motion picture “X-Men” to national audiences. (Id. ¶ 28.) Fox estimates that the X-Men film has since generated $290 million in gross receipts from sales in the United States and abroad, grossed “tens of millions of dollars more” from sales of videotapes, digital versatile disks (DVDs), and associated merchandising, and that it will net a profit of approximately $160 million. (PI. Rep. at 3; Rothman Decl. ¶ 14.) Fox also estimates that Marvel will receive approximately $6 million over the life of the film from “back end contingent compensation.” (PI. Rep. at 3-4; Rothman Decl. ¶ 16.) Describing X-Men as the “crown jewel of Fox’s current properties,” (Rothman Decl. ¶ 24), Fox intends to make it a “franchise film” by developing and producing sequels. (Id. ¶¶ 21-23.) Fox has obtained copyright registrations for both the trailers and the film. (Fox Amend. Compl. ¶ 26, Ex. G.) Fox also created X-Men logos and associated artwork in connection with the film. In particular, Fox has used a three-dimensional, metallic, futuristic letter “X,” at the center of which the term “X-Men” is prominently placed. Fox has also used the letter “X” logo without the superimposed “X-Men” term. (Id. ¶ 27, Exs. H-I.) E. Creation and Promotion of the Mutant X Series 1. Mutant X Comic Book Between November 1998 and May 2001, Marvel published a comic book series entitled Mutant X. This series featured Alex Summers (aka Havok), the mutant brother of Scott Summers (aka Cyclops), one of the original X-Men team members and a principal character in the X-Men film. (Witek Decl. ¶ 25, Ex. 14.) As depicted in the Mutant X comic book, Havok is transported to an alternate world and takes the name Mutant X. In that world, Havok encounters alternate versions of certain X-Men characters. 2. Mutant X Series a. Creation In or about July 2000, as the X-Men film was being marketed and distributed, Marvel developed the idea for a live-action television series called Mutant X, which, according to Marvel, was intended to feature “new, never-before-seen, Marvel characters.” (Arad Decl. ¶ 25; Declaration of Richard E. Ungar dated June 18, 2001 (“Ungar Decl.”) ¶ 2.) Drawing from recent developments in science surrounding the mapping of the human genome and genetic engineering, Marvel decided to tell the story of “various young men and women who were part of genetic ‘splicing’ experiments conducted many years earlier.” (Ungar Decl. ¶ 2.) “As a result of errors in the experimentation, these genetically-augmented -individuals underwent physical mutations, thereby developing unexpected abilities,” and later, unexpected problems. {Id,.; Genome X Television Series Concept, Ex. H to Arad Decl.) Because of such problems, the directors of the experiments realized a “product recall” was necessary. Adam, the principal character of the series and a scientist on the experiment team, “realized he had to leave the [team] and use his time and resources to try and locate these babies, who were now adults, either to cure them, help them cope, or assist them in understanding what to expect.” (Arad Decl. ¶¶ 30-31.) On the other hand, Adam’s partner, who is named Mason Eckhart, believed that the team had to cover its tracks by destroying or imprisoning the mutants. (Id. ¶ 31.) Thus, each episode would revolve around the search for a new mutant. (Declaration of Howard Chaykin (“Chaykin Decl.”) ¶ 18.) As originally conceived, the series was to be called “Genome X.” (Arad Decl. ¶ 28.) Marvel developed a formal treatment for the new series, and contacted Tribune about producing and distributing the show. (Declaration of Richard H. Askin, Jr. dated June 15, 2001 (“Askin Decl.”) ¶ 6.) On August 9, 2000, Marvel and Tribune entered into a production and syndication agreement for a weekly, live-action television series of hour-long shows based on the Genome X concept. However, Richard Askin, Tribune’s president, disagreed with the choice of Genome X as the name of the series, because he was concerned that too few people in the target demographic would know what “genome” meant. (Askin Decl. ¶ 9.) Later, “after considerable discussion among representatives of Tribune and Marvel, [they] all eventually agreed upon the name ‘Mutant X’ for the television series.” (Ungar Decl. ¶ 7.) Thereafter, an amended agreement was drafted to reflect this change, in which Marvel licensed the Mutant X name to Tribune for development of the television series. (Ex. D to Askin Decl.). On November 15, 2000, Tribune and Fireworks signed an agreement pursuant to which the two companies would cooperate on the financing, production, and distribution of the new series. (Askin Decl. ¶ 10.) According to defendants, “the characters portrayed and the stories to be told in the ‘Mutant X’ television series have absolutely no involvement whatsoever with [the Mutant X] comic book series .... ” (Ungar Decl. ¶ 7.) Defendants hired an executive consultant responsible for refining the overall story for the series, based upon Marvel’s original treatment, and for the writing of the scripts and supervision of others involved in that process. Part of the consultant's refining job, according to defendants, is to “eliminate any elements arguably reminiscent of the ‘X-Men’ property contained in [the] treatments.” (As-kin Decl. ¶ 11.) The record reflects that the characters and storylines in the show being produced as of the date of this Opinion substantially vary from those presented in the initial concept and treatments. b. Promotion Notwithstanding the divergences in characters and storylines between the new Mutant X series and the X-Men Property or Mutant X comic book series, the record reflects that defendants’ have made numerous references to the X-Men Property and the X-Men film in promoting the new series. First, in or about January 2001, defendants placed advertisements in various entertainment industry publications promoting the proposed series. (Fox Amend. Compl. ¶ 31, Ex. J.) The advertisements featured a Mutant X logo developed by defendants, consisting of a three-dimensional green metallic X, at the center of which the term “Mutant X” is prominently placed. (Id.) Second, defendants have met with numerous television station licensees and advertisers throughout the United States in an effort to promote and license the new series. (Askin Decl. ¶¶ 17-19.) The sales presentation slides which were shown to these television industry personnel stated, inter alia, that the show is “[b]ased on the box office smash, X-Men,” and makes reference to “X-Men The Movie” in connection with its $300 million in gross revenue and home video/DVD sales of $50 million “in its first weekend alone!” (Ex. B to Fox Amend. Compl.; Askin Decl. ¶ 21.) Third, defendants created certain a sales presentation videotape for the Mutant X series that appropriated clips from Fox’s copyrighted X-Men film and/or trailers, which, according to Fox, creates an association between the new series and the film. (Fox Amend. Compl. ¶¶ 34, 35; Askin Decl. ¶ 22.) According to Fox, defendants have also created and distributed shorter versions of such sales presentation videotapes, including a compilation tape of shows produced by Tribune. (Fox Amend. Compl. ¶ 36.) Fourth, defendants have allegedly made certain public statements linking the new series to the X-Men film. (Id. ¶¶ 38, 39.) Defendants’ promotional efforts have been successful. According to Tribune, as of June 15, 2001, it had entered into broadcast licenses with television stations in 161 markets across the country, thus covering approximately 94 percent of all U.S. households. (Askin Decl. ¶ 28; Fox Amend. Compl. ¶ 37.) The company is currently in the process of selling advertising time for the first season of the show. (Askin Decl. ¶ 28.) Filming of the series began on June 4, 2001, and the director’s cut of an initial episode, entitled “Russian Roulette,” was finalized a few weeks later. (Declaration of Maura J. Wogan with Respect to the Mutant X Director’s Rough Cut of “Russian Roulette” dated June 28, 2001 (“Wog-an Decl. Roulette”), Ex. B.) The first episode of the series is scheduled to air in late September or early October 2001, with the rest of the fall lineup. (Askin Decl. ¶ 29.) Tribune has apparently committed to two years of production, with each year comprising 22 episodes, (Askin Decl. ¶ 8, Ex. C; Ungar Decl. ¶ 5, Ex. C.), and expects the series to run for at least five seasons, which, according to its calculations, will likely result in net profits of $74.3 million. (Askin Decl. ¶¶ 32-33.) F. Instant Action Fox filed the instant action, by order to show cause, on April 10, 2001, alleging claims for (i) breach of contract against Marvel; (ii) breach of the implied covenant of good faith and fair dealing against Marvel; (iii) tortious interference with contractual relations against Tribune and Fireworks; (iv) unfair competition and/or. false designation of origin under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), against all defendants; (v) copyright infringement, pursuant to 17 U.S.C. § 101 et seq., against all defendants; (vi) deceptive trade practices, pursuant to New York General Business Law § 349 (“Section 349”), against all defendants; and (vii) common law unfair competition against all defendants. (Fox Amend. Compl. ¶¶ 49-72.) Within minutes of the filing of Fox’s Complaint, Marvel filed a reciprocal declaratory judgment action against Fox, and the two actions were thereafter consolidated. (Marvel Compl.) Fox filed an Amended Complaint on May 16, 2001. (Fox Amend. Compl.) The instant motions followed, and oral argument was held on such motions on July 3, 2001. II. Motion to Dismiss A. Legal Standard On a motion to dismiss, the Court must accept the factual allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (noting that factual allegations in complaint must be accepted as true on motion to dismiss); Press v. Quick & Reilly, Inc., 218 F.3d 121, 128 (2d Cir.2000) (same). In deciding a motion under Rule 12(b)(6), the Court may consider “facts stated on the face of the complaint and in documents appended to the complaint or incorporated in the complaint, as well as [ ] matters of which judicial notice may be taken.” Automated Salvage Transport, Inc. v. Wheelabrator Envtl. Sys., Inc., 155 F.3d 59, 67 (2d Cir.1998). Further, mere conclusory allegations without factual support are insufficient to survive a motion to dismiss. See De Jesus v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 70 (2d Cir.1996) (citations omitted) (“A complaint which consists of conclusory allegations unsupported by factual assertions fails even the liberal standard of Rule 12(b)(6).”); Lee v. State of New York Dep’t of Correctional Servs., No. 97 Civ. 7112, 1999 WL 673339, at *14 (S.D.N.Y. Aug. 30, 1999) (same); Donohue v. Teamsters Local 282 Welfare, Pension, Annuity, Job Training, and Vacation and Sick Leave Trust Funds, 12 F.Supp.2d 273, 279 (E.D.N.Y.1998). B. Breach of Contract 1. Choice of Law Fox states that California law should apply to its breach of contract claim, because (i) the 1993 Agreement was primarily negotiated in California and drafted by attorneys practicing in California, and (ii) the “acts necessary for performance” [i.e. the creation of the X-Men film] took place in part in California. (Plaintiffs Memorandum of Law in Support of its Motion for a Preliminary Injunction (“PLMem”) at 12 n. 1.) "While defendants do not dispute Fox’s facts regarding the Agreement’s negotiation or performance, and do not address the choice of law issue directly in their papers with regard to the contract claim, they apply New York case law in support of their arguments. The Court applies California law to the breach of contract claim. Because jurisdiction in this case is based on diversity of citizenship as well as the presence of a •federal question, we follow the choice of law rules of New York, the forum state. See Totalplan Corp. of Am. v. Colborne, 14 F.3d 824, 832 (2d Cir.1994) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)). In contract matters, New York courts apply a “center of gravity” or “grouping of contacts” approach, pursuant to which courts may consider a spectrum of significant contacts, including the place of contracting, the places of negotiation and performance, the location of the subject matter, and the domicile or place of business of the contracting parties. Lazard Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1539 (2d Cir.1997) (citing In re Allstate, 81 N.Y.2d at 227, 597 N.Y.S.2d 904, 613 N.E.2d 936). The traditional choice of law factors, .the places of contracting and performance, are given the heaviest weight in this analysis. Id. Here, the record reflects that the contract was negotiated and signed in California, (PL Mem. at 12 n. 1; Declaration of Sandra Smokier dated June 23, 2001 (“Smokier Decl.”), Exs. A-K), and, judging by the domicile of the parties, appears to have been performed in both California and New York. The states’ interests, to the extent relevant, are evenly balanced. Cf. In re Allstate, 81 N.Y.2d at 226, 597 N.Y.S.2d 904, 613 N.E.2d 936 (noting that in contract cases involving only private economic interests, it may “be difficult to identify the competing 'policies’ at stake, because the laws may differ only slightly, and evolve through the incremental process of common-law adjudication as a response to the facts presented”). However, given that the overall balance of negotiation and performance tips in favor of California, the Court applies California law to the breach of contract claim. 2. Scope of Marvel’s Television Rights Although Marvel reserved “all television rights” in Paragraph 8 of the Agreement, Fox must consent in writing to Marvel’s “production, distribution, or exploitation of any live-action motion picture for free television exhibition, pay television exhibition, non-theatrical exhibition, or home video exhibition .... ” (1993 Agreement ¶ 8.) In practice, this so-called “freeze” provision brings such live-action motion pictures within the ambit of Fox’s rights under the Agreement, as it permits Fox to preclude Marvel from making such motion pictures when they are based on the X-Men Property. The scope of Marvel’s television rights as elaborated within this framework is at the heart of the parties’ dispute, as they specifically disagree as to whether a live-action television series is encompassed by the freeze. While both sides contend that the provision in question is unambiguous as written, they disagree as to what precise media the provision encompasses. Fox contends that Paragraph 8, as a whole, prohibits Marvel from exploiting the X-Men Property “in any audio-visual medium without either obtaining Fox’s consent or providing Fox a right of first refusal .... ” (Opposition to Defendant’s Motion to Dismiss Plaintiffs First Amended Complaint (“Pl.Opp.Dis.”) at 5, 10.) Adopting a broad reading of the term “motion picture,” Fox concludes that the phrase “live-action motion pictures for free television exhibition” effects a freeze on all of Marvel’s live-action television rights, including the Mutant X live-action television series. Thus, Fox concludes, Marvel breached the Agreement when it chose to produce and market Mutant X without obtaining Fox’s consent. In support of its position, Fox relies on the context of the Agreement, in particular (i) the broad grant of rights in Paragraph 6 and character preemption rights in Exhibit A, (ii) the use of the term “motion picture” in Paragraph 8 and elsewhere in the Agreement, and (iii) the “overriding purpose” of the Agreement to protect Fox against competition from other X-Men exploitations. (Id. at 4-11.) Fox also relies on certain definitions contained in the glossary of Fox’s standard Option/Purchase Agreement (the “Fox Glossary”) which, Fox claims, like the Option/Purchase Agreement itself, was incorporated by reference in Paragraph 18 of the 1993 Agreement. Specifically, Fox points out that the Fox Glossary defines: “Motion Picture” as “[pictures of any kind whatsoever ... and their accompanying devices and processes whereby pictures ... are recorded or otherwise preserved for ... exhibition ... by any means or media ... in such manner as to appear in motion or sequence”; “Television Motion Picture” as a “Motion Picture primarily intended to be initially distributed for [television [exhibition”; Episode as an “individual Television Motion Picture which is part of a Television Series”; and “Television Series” as “related episodes intended to be distributed as a group .... ” (Smokier Decl. ¶¶ 40-43, Ex. L.) In contrast, defendants assert that the term “live-action motion picture” clearly refers to a “long-form movie,” namely, a feature-length “movie of the week” or direct-to-video motion picture. (Defendants’ Joint Memorandum In Support of Cross Motion to Dismiss Plaintiffs Complaint (“Def.Mem.Dis.”) at 9; Def. Mem. at 20.) Because live-action television series like Mutant X do not fall within such definition, then, defendants argue, Fox’s breach of contract claim fails as a matter of law; Marvel may proceed with the series, and any other live-action television series whether or not based upon the X-Men Property, without prior written consent from Fox. (Def. Mem. Dis. at 7; Tr. at 39:10-24, 70:2-24.) Defendants assert that this interpretation is consistent with (i) the underlying bargain, whereby Fox contracted for limited rights to produce and distribute “theatrical motion pictures” based on the X-Men property, and Marvel “reserv[ed] all television rights” with the sole exception of live-action motion pictures for television, (ii) Marvel’s superior bargaining power derived from its “special stature” in relation to the X-Men Property, (iii) the parties’ separate treatment of television series rights in Paragraph 7(f) of the Agreement with respect to animated productions, and the distinction between “motion pictures and television series rights” made in Exhibit A, and (iv) the overall sophistication of the parties. (Def. Mem. Dis. at 8-12; Def. Mem. at 20; Declaration of Jonathan D. Reichman Regarding Contract Interpretation dated June 17, 2001 (“Reichman Decl.”) ¶ 50.) Under California law, judgment on the pleadings in a breach of contract action may be appropriate when the terms of the contract at issue are unambiguous. This is a question of law, and the Court must determine whether any ambiguity exists by reading the terms in question in light of the overall context of the agreement. Brinderson-Newberg Joint Venture v. Pacific Erectors, Inc., 971 F.2d 272, 277 (9th Cir.1992); Brobeck, Phleger, & Harrison v. Telex Corp., 602 F.2d 866, 872 (9th Cir.1979) (“It is beyond question that every provision of a contract should be examined to determine the meaning and intention of the parties ... the meaning of words contained in a contract is to be determined not from a consideration of the words alone but from a reading of the entire contract.”). Under California’s statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs its interpretation. “Such intent is to be inferred, if possible, solely from the written provisions of the contract ... The clear and explicit meaning of these provisions, interpreted in their ordinary and popular sense, unless used by the parties in a technical sense or a special meaning is given to them by usage ... controls judicial interpretation.” Santisas v. Goodin, 17 Cal.4th 599, 608, 71 Cal.Rptr.2d 830, 951 P.2d 399 (1998) (citations omitted). Where the parties’ intentions are clear, and there is no reasonable basis for difference of opinion, no ambiguity exists. In this case, the Court finds that the phrase “live-action motion picture for free television exhibition,” read in the context of the provision in which it is contained and the Agreement as a whole, is ambiguous; in so finding, the Court disagrees with the positions of both parties. Given the varied uses of the term “motion picture” in the 1993 Agreement, and bearing in mind the alternative views presented by the parties concerning the meaning of the relevant phrase in the context of the Agreement, the Court finds that there is a reasonable basis for a difference of opinion as to the scope of the freeze of Marvel’s television rights in relation to the X-Men Property. Accordingly, because defendants have failed to show that Fox can prove no facts in support of its breach of contract claim, the Court declines to dismiss this claim. Fox’s success on its contract claim will therefore depend on an examination of extrinsic evidence. C. Implied Covenant of Good Faith and Fair Dealing Fox’s second claim alleges that Marvel breached the implied covenant of good faith and fair dealing by (i) creating, producing, distributing, and marketing the Mutant X series without Fox’s consent, and (ii) concealing its actions from Fox while attempting to mislead Fox about the nature of the series. (Fox Amend. Compl. ¶ 54.) Defendants contend that this claim should be dismissed as duplica-tive of Fox’s breach of contract claim. (Def. Mem. Dis. at 16.) Under California law, a claim for breach of the implied covenant of good faith and fair dealing is an outgrowth of alleged improper conduct by a defendant under a contract between the parties, and is designed to prevent a party from acting in bad faith to frustrate the contract’s actual benefits. See Guz v. Bechtel Nat'l Inc., 24 Cal.4th 317, 349, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (2000) (stating that the covenant of good faith and fair dealing is “implied by law in every contract,” and “cannot be endowed with an existence independent of its contractual underpinnings”) (citation omitted); Foley v. Interactive Data Corp., 47 Cal.3d 654, 690, 254 Cal.Rptr. 211, 765 P.2d 373 (1988) (“An allegation of breach of the implied covenant of good faith and fair dealing is an allegation of breach of an ‘ex contractu’ obligation, namely one arising out of the contract itself. The covenant of good faith is read into contracts in order to protect the express covenants or promises of the contract, not to protect some general public policy interest not directly tied to the contract’s purposes.”). Such a claim must be dismissed as duplicative where it merely restates the contract claim. See Guz, 24 Cal.4th at 352, 100 Cal.Rptr.2d 352, 8 P.3d 1089. However, a claim for breach of the implied covenant may be sufficiently alleged where additional conduct by the defendant, separate and apart from the conduct resulting in the breach, frustrates the plaintiffs right to benefits due under the contract. See Guz, 24 Cal.4th at 353 n. 18, 100 Cal.Rptr.2d 352, 8 P.3d 1089; Careau & Co. v. Sec. Pac. Bus. Credit, Inc., 222 Cal.App.3d 1371, 1395 & n. 17, 272 Cal.Rptr. 387 (1990). In this case, Fox’s allegations of bad faith are merely conclusory. The Amended Complaint sets forth facts germane to a finding that defendants produced and distributed the Mutant X series without Fox’s consent. (Fox Amend. Compl. ¶¶ 31-39.) However, Fox asserts no facts reflecting that Marvel acted in bad faith in creating, and authorizing the production of, the series. Fox states that it “found out about the proposed ‘Mutant X’ series not from [defendants] ... but rather, from public articles and advertisements .... ” (Id. ¶ 42.) However, such allegation does not suggest that Marvel purposely concealed its actions or somehow misled Fox. The fact that Marvel may not have discussed Mutant X with Fox at the early stages of its development may merely reflect its belief that its conduct did not implicate the 1993 Agreement. Moreover, the considerable publicity associated with the new series in the months following its creation, (Fox Amend. Compl. ¶ 41), runs counter to a finding of purposeful concealment. Because Fox has not alleged, and the record gives the Court no reason to infer, conduct beyond that which would constitute a breach of contract, the Court dismisses Fox’s claim for breach of the implied covenant of good faith and fair dealing as duplicative of its contract claim. Cf. Trustees of Capital Elec. Co. Profit Sharing and Trust Fund v. Shearson Lehman Brothers, Inc., 221 Cal.App.3d 617, 625, 270 Cal.Rptr. 566 (1990) (dismissing claim for breach of the implied covenant without leave to amend where plaintiff failed to allege facts to support such claim). D. Tortious Interference 1. Choice of Law The parties disagree as to which state’s law should apply to the tortious interference claim. Fox asserts that California law should apply based on the domicile of Tribune and Fireworks and the location of the alleged tort; defendants claim that the domicile of Marvel and the purported conduct of the other defendants in New York dictates that New York law apply. (Pl. Opp. Dis. at 16 n. 16; Def. Mem. Dis. at 17 n. 7). In tort cases, New York courts apply the law of the jurisdiction with the greatest interest in the litigation. Schultz v. Boy Scouts, 65 N.Y.2d 189, 197, 491 N.Y.S.2d 90, 480 N.E.2d 679 (1985). In determining such interest, the courts look “almost exclusively” to the parties’ domiciles and locus of the tort. Id.; see also White v. ABCO Eng’g Corp., 221 F.3d 293, 301 (2d Cir.2000) (stating that “[i]f conflicting conduct-regulating laws are at issue, the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders”) (quoting Cooney v. Osgood Mack, Inc., 81 N.Y.2d 66, 72, 595 N.Y.S.2d 919, 612 N.E.2d 277 (1993)). Here, three of the four parties impacted by the tort, including the two allegedly responsible for committing it — Fox, Tribune, and Fireworks — are domiciled in California. The August 9, 2000 Agreement between Marvel and Tribune, and its amendment, which are both letter agreements, are directed to Rick Ungar, President of Marvel Characters Group, at Marvel studios in California, and probably signed by him there. (Exs. C and D to Askin Deck) Moreover, although, as defendants point out, Tribune and Fireworks are alleged to have significant contacts with New York, (Fox Amend. Compl. ¶ 8), their actions in creating, producing and marketing the Mutant X series, (Id. ¶ 56), the record reflects, appear to have occurred in California, rather than New York. Accordingly, the Court applies California law to Fox’s tortious interference claim. 2. Merits Fox asserts that Tribune and Fireworks tortiously interfered with the 1993 Agreement by participating in the creation, production, distribution, and marketing of the Mutant X series, despite their awareness of the existence and terms of the 1993 Agreement. (Fox Amend. Compl. ¶ 56.) Fox further asserts that “[a]s a direct and proximate result of [such] tortious interference ... [Fox] has suffered immediate and irreparable injury for which there is no adequate remedy at law.” (Id. ¶ 57.) In order to assert a claim for tortious interference with contract under California law, a plaintiff must allege (i) the existence of a valid contract, (ii) knowledge of the contract on the part of the defendant and intent to induce its breach, (iii) breach of the contract by a third party, (iv) causation, and (v) damages suffered as a result thereof. JBL Enters, v. Jhirmack Enters., 698 F.2d 1011, 1019 (9th Cir.1983); Pacific Gas & Elec. Co. v. Bear Stearns & Co., 50 Cal.3d 1118, 1125, 270 Cal.Rptr. 1, 791 P.2d 587 (1990) (citing Seaman's Direct Buying Serv., Inc. v. Standard Oil Co., 36 Cal.3d 752, 765-66, 206 Cal.Rptr. 354, 686 P.2d 1158 (1984)); Farmers Ins. Exch. v. State, 175 Cal.App.3d 494, 506, 221 Cal.Rptr. 225 (1986). With regard to the causation element, the plaintiff must allege that the defendant’s actions were the proximate cause of the breach. Farmers, 175 Cal.App.3d at 506, 221 Cal.Rptr. 225. In this case, Fox’s claim is insufficient for three reasons. First, Fox has failed to allege that Tribune’s and/or Fireworks’ actions were taken with the intent to induce a breach of the 1993 Agreement. A defendant’s mere knowledge of an agreement is not enough; Fox must allege and prove that Tribune and/or Fireworks intentionally interfered with Fox’s rights under the Agreement without justification. Second, Fox fails to allege that Tribune’s and/or Fireworks’ actions were the proximate cause of Marvel’s alleged breach; the Amended Complaint merely alleges that Fox suffered injury as a direct and proximate result of their actions. (Fox Amend. Compl. ¶ 57); PL Opp. Dis. at 16-17 (acknowledging that the causation element is properly pled under California law “by alleging that defendants were the proximate cause of the breach”). Third, even if Fox had sufficiently alleged these two elements, the facts asserted in the Amended Complaint do not support them, therefore requiring dismissal of the claim. Nothing in the Amended Complaint, or, for that matter, in the evidence submitted in support of Fox’s motion for preliminary injunction, indicates that the actions of Tribune and/or Fireworks, in assisting in the creation and production of the new series, suggests that it was their intent to induce a breach. Nor do the facts alleged reflect that either Tribune or Fireworks was the proximate cause of the alleged breach. Accordingly, the Court dismisses Fox’s claim for tortious interference with contract. E. Lanham Act Fox’s Lanham Act claim, for “unfair competition and false designation of origin,” is grounded in its assertion that defendants “have sold ‘Mutant X’ by falsely associating it with Fox’s ‘X-Men’.” (PI. Rep. at 25.) Specifically, Fox asserts that defendants improperly marketed the new series by (i) infringing Fox’s unregistered trademarks in its “unique logo” used in the film, and (ii) falsely promoting Mutant X as affiliated with the X-Men film. It alleges that such promotion has caused potential purchasers to confuse the source of the series and the film, which is demonstrated by comments from such purchasers and articles from those in the entertainment industry stating that the two productions are related. (Fox Amend. Compl. ¶¶ 81-41, 59.) Section 48(a) prohibits the use of any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin ... likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association ... with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person 15 U.S.C. § 1125(a). It is a broad federal unfair competition provision which protects unregistered marks similar to the way that Section 32(1), 15 U.S.C. § 1114(1), protects registered marks. The section prohibits two forms of unfair competition: (i) the infringement of unregistered ' marks, names, and/or trade dress; and (ii) false advertising, that is, misleading or deceptive representations as to the quality or characteristics of the defendant’s goods or services. See 4 McCarthy on Trademarks and Unfair Competition § 27:9 at 27:18-19 (2001). Under the trademark infringement prong of Section 43(a), upon which Fox bases its allegations concerning defendants’ Mutant X logo, the applicable standard is substantially the same as that under Section 32(1); that is, a plaintiff must allege (i) the existence of a valid mark, and (ii) that the defendant’s actions are likely to confuse the buying public, that is, “an appreciable number of ordinarily prudent purchasers ....” E.G.L. Gem Lab Ltd. v. Gem Quality Inst., Inc., 90 F.Supp.2d 277, 292 (S.D.N.Y.2000). Under the false advertising prong, the basis for Fox’s allegations concerning defendants’ promotional activities more generally, a plaintiff must allege that the defendant made materially false or misleading statements of fact in advertisements or promotional materials that are likely to influence the purchasing decisions of ordinarily prudent purchasers. Johnson & Johnson-Merck Consumer Pharms. Co. v. Smithkline Beecham Corp., 960 F.2d 294, 297 (2d Cir.1992); Lois Sportswear U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 871 (2d Cir.1986) (citations omitted). Under either prong, the likelihood of confusion relates to either the source of the product or to affiliation with or sponsorship of the defendant by the plaintiff. Gem Lab, 90 F.Supp.2d at 292. The disposition of Fox’s Lanham Act claim is grounded in its limited rights as a trademark licensee. Under the 1993 Agreement, specifically Paragraph 6 and Exhibit A as incorporated therein, Marvel licensed a set of rights to Fox which included the right to use Marvel’s X-Men trademarks in commerce. Critically, however, Fox neither obtained a transfer of such trademarks nor the benefit of their associated goodwill, which had inured to Marvel over several decades. Where no goodwill has been transferred with the license, a trademark licensee cannot independently develop its own goodwill in a licensed mark, as such goodwill inures solely to the benefit of the licensor. Moreover, even if the trademark licensee acquires goodwill as part of the license, and thereby enhances it through use of a licensed product, such goodwill cannot be the basis for a lawsuit against the licensor. As McCarthy states: “The licensee of a trademark is in the position of a renter of an apartment, who does not acquire real estate ownership rights, no matter how long the tenancy. It is clear that the use of a mark by a person while such person was a licensee builds up no rights in the mark as against the licensor.” 2 McCarthy § 18:52 at 18-88. This principle applies even where, as here, the licensee creates a new product on the basis of the license that enhances such goodwill. See Cotton Ginny, Ltd. v. Cotton Gin, Inc., 691 F.Supp. 1347, 1354 (S.D.Fla.1988) (stating that in a licensing arrangement, the goodwill symbolized by the trademark is owned by the licensor, even though created by the licensee’s efforts). “A licensee that wishes to create rights in a mark separate from the licensed mark has an affirmative obligation to choose a mark sufficiently different from the licensed mark to avoid confusion — the licensee trades upon the goodwill of the licensor at the licensee’s peril.” Gem Lab, 90 F.Supp.2d at 300 (citation and internal quotations omitted). Fox’s principal X-Men logo consists of a three-dimensional, metallic, futuristic letter “X,” at the center of which the name “X-Men” is prominently placed. Fox also uses the letter “X” logo without the superimposed “X-Men” name. (Fox Amend. Compl. ¶ 27, Ex. H.) As licensee of the X-Men mark, and the letter “X” insofar as it refers to such mark, Fox is unable to establish the existence of its own valid mark for the purposes of its Lanham Act claim. Such logos are not sufficiently distinct from the licensed mark so as to create independent trademark rights, as they are mere depictions of Marvel’s trademarked name, which Marvel itself approved as the title of Fox’s film pursuant to the 1993 Agreement. In fact, defendants assert that Fox’s logos were derived from Marvel’s own designs as they have appeared in Marvel’s comic books over the past several decades. Defendants correctly point out that there is no derivative work concept in trademark law, as there is in copyright law, that would allow Fox to exploit the trademark license as provided under the 1993 Agreement, because such concept would contravene the principle that a trademark is to signal a single source of a product’s origin to the relevant consumers. (Defendants’ Joint Memorandum in Reply to Plaintiffs Response to Defendants’ Motion to Dismiss (“Def.Rep.Dis.”) at 9.) A similar analysis applies to Fox’s false advertising claim, which is based on the purported goodwill Fox has captured in the X-Men film. Because Fox is a trademark licensee, its creation and distribution of the X-Men did not give Fox any additional trademark rights to the X-Men Property, or any element of it (e.g. character names), than that conveyed in the 1993 Agreement. Marvel did not assign its trademarks and copyrights in the X-Men Property in the 1993 Agreement; it granted Fox limited rights to produce a theatrical motion picture based upon such Property, long owned by Marvel. As defendants point out, “[a]ny success that Fox’s film enjoyed simply strengthens Marvel’s trademark rights in X-Men.” (Def. Mem. Dis. at 23) (emphasis supplied); cf. Nestle Holdings, Inc. v. Commissioner of Internal Revenue, 152 F.3d 83, 88 (2d Cir.1998) (recognizing that a trademark licensee “has no reason to take steps to increase the value of a mark where the increased value will be realized by the owner”); 2 McCarthy § 18:52 at 18-88 (stating that the “properly licensed use by licensees will serve to fortify the legal and commercial strength of the licensed mark”). Thus, it would be coun-terintuitive to conclude that goodwill inures to Fox as a result of its production of the film, because the film’s constituent elements, namely, the set of X-Men names and marks, are owned by Marvel. The remedy available to Fox stemming from Marvel’s alleged improper exploitation of the X-Men Property (e.g., calling the series Mutant X (PI. Opp. Dis. at 21-22)) lies in contract rather than trademark law. Likewise, as discussed infra, a copyright remedy may be available for the direct use of X-Men film footage. Fox analogizes this case to earlier cases from this district where the defendant allegedly “passed off’ his product as the plaintiffs product by using photographs or videos of the latter and referring to such product’s success in promoting its own product. See Sublime Prods., Inc. v. Gerber Prods. Inc, 579 F.Supp. 248, 250-51 (S.D.N.Y.1984) (prohibiting defendant’s further use, in promoting its lamp, of photographs of plaintiffs lamps and plaintiffs success at soliciting orders); Elnicky Enters. v. Spotlight Presents, Inc., 1981 WL 48202, 213 U.S.P.Q. 855, 859-60 (S.D.N.Y. 1981) (finding that defendant’s use of a videotape of plaintiffs singing robot, in which plaintiff had developed substantial goodwill, “was clearly a misrepresentation of, and an attempt to ‘palm off its product”). However, in each of these cases, the plaintiff was not a trademark licensee, but an unrelated party who had independently developed goodwill in its product. The Sublime and Elnicky courts rightly concluded that the defendants’ association of their products with the plaintiffs’ products constituted unfair competition under Section 43(a). In contrast, in this case, Fox has accrued no goodwill in the X-Men film; if Fox’s allegations are true, Marvel has merely associated its product with another of its licensed products, the X-Men film. Accordingly, the Court dismisses Fox’s Lanham Act claim. F. Copyright Fox claims that defendants have infringed its copyrights (i) in the X-Men film by using video clips from the film and trailers in promoting the Mutant X series, and (ii) in the X-Men logos created by Fox in connection with the film by creating and using a logo that is confusingly and deceptively similar. (Fox Amend. Compl. ¶ 64.) While defendants do not move to dismiss the copyright claim based on their alleged use of the video clips, (Def. Rep. Dis. at 12 n. 8), they contend that Fox has failed to sufficiently allege a copyright claim with respect to the logos, because the logos are derivative works, and Fox allegedly failed to notify the Copyright Office thereof when applying for its registration certificate. (Def. Mem. Dis. at 26-28.) In order to plead a cause of action for copyright infringement, a plaintiff must allege: (i) which original works are the subject of the copyright claim; (ii) that the plaintiff owns the copyrights in those works; (iii) that the copyrights have been registered in accordance with the statute; and (iv) “by what acts during what time” the defendant infringed the copyright. See Carell v. The Shubert Org., 104 F.Supp.2d 236, 250 (S.D.N.Y.2000) (citation omitted). The registration of a copyright is prima facie evidence of its validity. Id. at 251 n. 10. The Copyright Act requires that the registration application include “in the case of a compilation or derivative work, an identification of any preexisting work or works that it is based on or incorporates, and a brief, general statement of the additional material covered by the copyright claim being registered.” 17 U.S.C. § 409(9). Because a derivative work is only copyrightable to the extent that it is original, 17 U.S.C. § 103(b), it is important that the Copyright Office be informed of the preexisting work so that it may determine if the author of the derivative work has made an original contribution. See Garner v. Sawgrass Mills Ltd. Partnership, 1994 WL 829978, 35 U.S.P.Q.2d 1396, 1403 & n. 5 (D.Minn.1994). A knowing failure to provide such information, like other misstatements on a copyright application, is grounds for rendering the copyright registration unenforceable. See G.B. Marketing USA, Inc. v. Gerolsteiner Brunnen GmbH, 782 F.Supp. 763, 774-76 (W.D.N.Y. 1991) (dismissing copyright claim where record was clear that plaintiff knowingly failed to inform Copyright Office that work was derivative); Russ Berrie & Co. Inc. v. Jerry Elsner Co., Inc., 482 F.Supp. 980, 987-88 (S.D.N.Y.1980) (same); see also Whimsicality, Inc. v. Rubie’s Costume Co., Inc., 891 F.2d 452, 455-56 (2d Cir.1989) (holding copyrights unenforceable because registrant knowingly misrepresented nature of work to Copyright Office). In this case, Fox has sufficiently alleged the elements of a copyright cause of action with respect to its copyrighted X-Men logos. Moreover, defendants have failed to set forth sufficient grounds on its motion to dismiss to demonstrate that Fox’s logos are derivative of Marvel’s works. In particular, defendants do not describe, nor have they presented any evidence of, the existence and scope of Marvel’s preexisting copyrights. Nor does the record enable the Court to discern which aspects of Fox’s copyrighted artwork have allegedly been derived from Marvel’s works. Even were the Court to consider the affidavits and exhibits presented by defendants on the preliminary injunction motion and in their reply on the motion to dismiss, (Arad Decl. ¶¶ 3(M4, Exs. O-Q; Ex. 1 to Def. Rep. Dis.) and conclude that Fox’s works were derivative, dismissal of the claim would still be improper because (i) the record does not reflect that Fox knowingly omitted the derivative work classification from its copyright registration application, and (ii) the work has the requisite degree of originality to be copyrightable as a derivative work, which right Fox obtained in the 1993 Agreement. G. Common Law Unfair Competition Fox claims that defendants have misappropriated Fox’s labors and expenditures in violation of New York law by marketing and promoting Mutant X so as to create an improper association with the X-Men film. (Fox Amend. Compl. ¶¶ 70-72.) Defendants contend that the claim is barred for the same reasons as Fox’s Lanham Act claim. (Def. Mem. Dis. at 30.) The New York law of unfair competition is broad and encompasses claims involving the misappropriation of a plaintiffs creative efforts as well as claims for false designation of origin. See e.g., Roy Export Co. Establishment of Vaduz v. Columbia Broad. Sys., 672 F.2d 1095, 1105 (2d Cir.1982) (discussing misappropriation branch and its evolution); Kregos v. Assoc. Press, 3 F.3d 656, 666 (2d Cir.1993) (discussing both branches in the context of a copyright claim). “State law claims that rely on the misappropriation branch of unfair competition are preempted” by the federal copyright laws. Warner Bros. Inc. v. Am. Broad. Cos., Inc., 720 F.2d 231, 246 (2d Cir.1983) (citation omitted); see also Arden v. Columbia Pictures Indus., Inc., 908 F.Supp. 1248, 1263 (S.D.N.Y.1995) (finding that a state law unfair competition claim that “[defendants misappropriated [plaintiffs work] for their own commercial gain and profit” sounds in misappropriation and is thereby preempted). Fox’s allegation that defendants’ actions in promoting Mutant X are an attempt to “free-rid[e] on Fox’s creativity and investment” and “profit at Fox’s expense by allowing Defendants to market ‘Mutant X’ for much less than it otherwise would have cost” is merely an allegation of copying. (Fox Amend. Compl. ¶¶ 4-5; PL Opp. Dis. at 30; PL Rep. at 25 n. 67.) Fox does not allege any additional facts that would warrant the maintenance of its unfair competition claim under a misappropriation theory. Thus, to the extent that Fox’s unfair competition claim alleges misappropriation, the Court dismisses the claim as preempted by the copyright laws. Although claims that allege a false designation of origin or false advertising “are not asserting rights equivalent to those protected by copyright and therefore do not encounter preemption,” Warner Bros., 720 F.2d at 246 (citing Nimmer §§ 1.01[B][1] n. 47, 2.12 n. 25 (1983)), this aspect of Fox’s unfair competition claim is precluded for the same reasons as Fox’s Lanham Act claim, namely, that Fox has accrued no goodwill in the X-Men film, logos, or the marks it was assigned under the 1993 Agreement that may have been misappropriated. Cf. Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137, 149 (2d Cir.1997) (“Under New York law, common law unfair competition claims closely resemble Lanham Act claims except insofar as the state law claim may require an additional element of bad faith or intent.”) (citation omitted); Revlon Consumer Prods. Corp. v. Jennifer Leather Broadway, Inc., 858 F.Supp. 1268, 1278 (S.D.N.Y.1994) (same); Avon Prods., Inc. v. S.C. Johnson & Son, Inc., 984 F.Supp. 768, 800 (S.D.N.Y.1997) (dismissing unfair competition claim and noting that the standards for a finding of unfair competition are substantially similar to those applied under the Lanham Act). Accordingly, the Court dismisses Fox’s common law unfair competition claim. H. Section 349 Fox’s claim that defendants engaged in deceptive business practices under New York law through their promotional activities is unavailing for related reasons. (Fox Amend. Compl. ¶¶ 67-69.) Section 349 “was designed to protect consumers from various forms of consumer fraud and deception.” Smith v. Triad Mfg. Group, Inc., 255 A.D.2d 962, 681 N.Y.S.2d 710, 712 (4th Dep’t 1998) (citation omitted). The section outlaws, inter alia, “[deceptive acts or practices in the conduct of any business, trade, or commerce or in the furnishing of any service in [New York].” Section 349(a). In order to establish a violation of Section 349, a plaintiff must’ prove that: (i) the conduct of the defendant is consumer-oriented; (ii) the defendant is engaging in an act or practice that is deceptive or misleading in a material way; and (iii) the plaintiff has been injured by reason thereof. Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995). The New York Court of Appeals has defined a “deceptive act or practice” as a representation or omission “likely to mislead a reasonable consumer acting reasonably under the circumstances.” Id. at 26, 623 N.Y.S.2d 529, 647 N.E.2d 741. In order to show conduct that is consumer oriented, a plaintiff must plead and prove injury to the public generally, rather than to itself alone. Int’l Sport Divers Ass’n, Inc. v. Marine Midland Bank, N.A., 25 F.Supp.2d 101, 114 (W.D.N.Y.1998) (citation omitted). “The conduct need not be repetitive or recurring, but the defendant’s acts or practices must have a broad impact on consumers at large.” Id. “[T]he gravamen of the Complaint must be consumer injury or h