motion asserting any of [the Rule 12(b)] defenses must be made before pleading,” and Rule 7(a) defines ananswer as a pleading. Defendants filed an answer to the complaint on July 1, 2011, but did not move todismiss until June 1, 2012. In any event, Defendants’ motion to dismiss fails for the same reasons the motionfor summary judgment fails.
-2-32. Regarding the claims in Count II (breach of contract), Count III (breach of contract), CountIV (tortious interference with contract) and Count V (unjust enrichment), Defendants move for summary judgment on the ground that they are preempted by the Copyright Act.
docket no.30.As explained herein, Defendants’ motions will be denied. Plaintiff’s copyrightregistrations are valid and it is entitled to a jury trial on its Count I claim for copyrightinfringement, and the claims in Counts II, III, and IV seek vindication for violations of Plaintiff’s legal rights separate and distinct from the copyrights underpinning its claim for copyright infringement. Such claims are not preempted by the Copyright Act, because thoseclaims concern content that does not fall within the subject matter of copyright protection under the Copyright Act.
Pursuant to a License Agreement, dated October 1, 2006 (the “License Agreement”), between The Mountain and Plaintiff’s licensee, Looking Good Licensing, LLC (“LGL”),Plaintiff provided The Mountain with 32 unique designs for a new line of outdoor-themedt-shirts to be launched by The Mountain known as “Mountain Life” (the “Designs”). In theLicense Agreement, The Mountain expressly agreed that Plaintiff owns the copyright in the
Case 3:11-cv-00036-NKM -BWC Document 72 Filed 12/30/12 Page 2 of 35 Pageid#: 1266