Best Carpet Values, Inc. v. Google LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BEST CARPET VALUES, INC.; No. 22-15899
THOMAS D. RUTLEDGE, on behalf
of themselves and all others similarly D.C. No.
situated, 5:20-cv-04700-
EJD
Plaintiffs-Appellees,

v. OPINION

GOOGLE, LLC,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding

Argued and Submitted September 13, 2023
San Francisco, California

Filed January 11, 2024

Before: J. Clifford Wallace, Sidney R. Thomas, and
Danielle J. Forrest, Circuit Judges.

Opinion by Judge Wallace
2 BEST CARPET VALUES, INC. V. GOOGLE LLC

SUMMARY*

California Law

The panel reversed the district court’s denial of Google,
LLC’s motion to dismiss plaintiffs’ putative class action
asserting California state-law claims arising from Google’s
placement of search results on copies of their websites.
Plaintiffs challenged the way Google displayed websites
in Search App on Android phones from March 2018 to April
2020. Plaintiffs argued that by displaying frame and half-
page digests, Google occupied valuable space on the
websites of class members that Google should have paid for
because it obtained all the benefits of advertising from use
of that space. The district court certified for interlocutory
review four questions that were potentially dispositive of the
case.
Addressing plaintiffs’ trespass to chattels claim and the
first certified question, the panel held that Kremen v. Cohen,
37 F.3d 1024 (9th Cir. 2003), should not be extended to
protect as chattel the copies of websites displayed on a user’s
screen. An application of Kremen’s three-part test led to the
conclusion that a cognizable property right did not exist in a
website copy. Accordingly, plaintiffs’ trespass to chattels
claim must be dismissed.
Addressing plaintiffs’ state-law implied-in-law contract
and unjust enrichment claim and the third certified question,
the panel held that website owners cannot invoke state law

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 BEST CARPET VALUES, INC. V. GOOGLE LLC 3

to control how their websites are displayed on a user’s screen
without preemption by federal copyright law. The panel
applied a two-part test to determine whether plaintiffs’ state-
law claim was preempted by the Copyright Act. Applying
step one, the manner that plaintiffs’ websites were displayed
fell within the subject matter of federal copyright law.
Applying step two, the rights asserted by plaintiffs’ implied-
in-law contract and unjust enrichment claim were equivalent
to the rights provided by federal copyright law. In addition,
plaintiff’s state-law claim did not carry “an extra element”
as compared to a federal copyright claim. Accordingly, the
panel concluded that plaintiffs’ state-law claim was
preempted by federal copyright law.
Because the first and third question were dispositive, the
panel did not reach the two remaining certified questions.
The panel reversed the order denying Google’s motion to
dismiss, and remanded with instructions to dismiss.

COUNSEL

Fred A. Rowley Jr. (argued) and Victor H. Jih, Wilson
Sonsini Goodrich & Rosati, Los Angeles, California; David
Kramer, Dylan Byrd, and Dale R. Bish, Wilson Sonsini
Goodrich & Rosati, Palo Alto, California; Paul N. Harold,
Wilson Sonsini Goodrich & Rosati, Washington, D.C.; Ali
Reza Rabbani, Paul Hastings LLP, Los Angeles, California;
for Defendant- Appellant.

John A. Lawson (argued), Edelson PC, San Francisco,
California; Ryan D. Andrews and Roger J. Perlstadt,
Edelson PC, Chicago, Illinois; Alexander H. Schmidt,
Alexander H. Schmidt, Colts Neck, New Jersey; Eric J.
4 BEST CARPET VALUES, INC. V. GOOGLE LLC

Artrip, Mastando & Artrip LLC, Huntsville, Alabama; Asil
Hashiri, Mashiri Law Firm APC, San Diego, California; for
Plaintiffs-Appellees.

OPINION

WALLACE, Circuit Judge:

Google, LLC (Google) appeals from the district court’s
denial of its motion to dismiss Plaintiffs’ putative class
action asserting California state-law claims arising from
Google’s placement of search results on copies of their
websites. We have jurisdiction over this timely interlocutory
appeal pursuant to 28 U.S.C. § 1292(b). We reverse and
remand with instructions to dismiss the Complaint.
I.
“At the motion to dismiss stage, we assume factual
allegations stated in the Complaint filed by Plaintiff[s] to be
true.” Doe v. Internet Brands, Inc., 824 F.3d 846, 848 (9th
Cir. 2016). Google provides internet services and products,
most famously the google.com search engine, the Android
mobile operating system, and the web browser Google
Chrome. Google integrates “Search App” into its Android
mobile operating system. The Search App enables a user to
conduct internet searches directly from the home screen of
their Android phone without opening a web browser. During
the class period, Search App typically appeared as a search
bar at the top of the Android home screen.
When a user typed a website address into the browser,
Search App (like most web browsers) connected to the
server hosting the website and “obtain[ed] a copy of the
 BEST CARPET VALUES, INC. V. GOOGLE LLC 5

requested website page from the host web server.” Search
App then “deliver[ed] the copy to the user by translating the
website’s codes and recreating the website page on the user’s
. . . mobile device screen.” If a user clicked a link on the
page, the click was “transmitted back over the internet to the
host web server, from which the hosted website [could] then
transmit responsive information,” such as a different website
page. Plaintiffs explicitly alleged that “Google did not
trespass on the source websites located on [Plaintiffs’] web
servers.”
Plaintiffs challenge the way Google displayed websites
in Search App on Android phones from March 2018 to April
2020. During this period, Search App displayed the
requested website page with a “frame” at the bottom of the
page stating, for example, “VIEW 15 RELATED PAGES.”
The frame gave the user the option of clicking a button to
expand the frame to display half-page banners advertising
related websites, occupying up to eighty percent of the
screen size and shadowing the remaining twenty percent.
Alternatively, the user could scroll through the website to
which they navigated as normal with the frame remaining in
place at the bottom of the screen. The banners were not
advertisements for which Google paid Plaintiffs, but instead
results automatically generated by Google’s algorithms and
placed there without Plaintiffs’ permission. Plaintiffs
alleged that the “VIEW 15 RELATED PAGES” frame and
(when expanded by the user) the half-page digests blocked
important content on their websites. In the case of putative
class representative Best Carpet Values, Inc. (Best Carpet),
the results at times displayed in the frame included links to
websites owned by Best Carpet’s direct competitors and
negative news stories about Best Carpet’s owner. Plaintiffs
argue that by displaying the frame and half-page digests,
6 BEST CARPET VALUES, INC. V. GOOGLE LLC

Google “occup[ied] valuable space” on the websites of class
members that Google should have paid for because it
“obtain[ed] all the benefits of advertising” from use of that
space.
Plaintiffs filed a putative class action, asserting
California state law claims for trespass to chattels, implied-
in-law contract and unjust enrichment, and violation of
California’s Unfair Competition Law (UCL), Cal. Bus. &
Prof. Code § 17200 et seq. Google moved to dismiss the
operative Complaint for failure to state a claim upon which
relief could be granted. The district court, drawing in part
upon our decision in Kremen v. Cohen, 337 F.3d 1024 (9th
Cir. 2003), mostly denied Google’s motion to dismiss.1 In
response, Google moved to stay the proceedings and to
certify the order for immediate interlocutory appeal under 28
U.S.C. § 1292(b). The district court granted Google’s
motions, and we granted Google’s permission to file this
appeal.
II.
“We review de novo a district court’s denial of a motion
to dismiss under Rule 12(b)(6).” Olympic Forest Coal. v.
Coast Seafoods Co., 884 F.3d 901, 905 (9th Cir. 2018).
III.
The district court certified for our interlocutory review
four “novel and difficult” questions of law that it believed
were potentially dispositive of the case. We conclude that

1
The district court dismissed the UCL claim under the “unfair” part but
left intact the claim under the “unlawful” part.
 BEST CARPET VALUES, INC. V. GOOGLE LLC 7

the first and third questions are indeed dispositive, thus we
do not address the second or fourth.2
A.
As to the first question, “[w]hether [Kremen] should be
extended to protect as chattel the copies of websites
displayed on a user’s screen,” we answer in the negative.3
Trespass to chattels, “[d]ubbed by Prosser the ‘little
brother of conversion,’ . . . allows recovery for interferences
with possession of personal property ‘not sufficiently
important to be classed as conversion.’” Intel Corp. v.
Hamidi, 30 Cal. 4th 1342, 1350 (2003), citing W. Page
Keeton, et al., Prosser and Keeton on Law of Torts § 14, pp.
85–86 (5th ed. 1984). Although California law recognizes
“property” in “every intangible benefit and prerogative
susceptible of possession or disposition,” Holistic
Supplements, L.L.C. v. Stark, 61 Cal. App. 5th 530, 548
(2021) (internal quotations and citation omitted), it does not
similarly call courts to use property law “to displace other,
more suitable law” in every instance. Silvaco Data Sys. v.
Intel Corp., 184 Cal. App. 4th 210, 239 n.21 (2010) (internal
citation and quotation marks omitted).
We agree with the district court that the “chattels” at
issue here are the copies of Plaintiffs’ websites. Plaintiffs

2
The questions not reached are: “(2) Whether trespass to chattels can be
based on ‘functional harm or disruption’ to a website even though there
is no ‘physical harm to their websites’” and “(4) Whether the risk
consumers may be confused or misled by deceptive advertising defeats
Google’s First Amendment right to suggest search results to users
interested in viewing a particular website.”
3
Because Plaintiffs’ trespass to chattels claim is without merit, we do
not address whether it is preempted by the Copyright Act.
8 BEST CARPET VALUES, INC. V. GOOGLE LLC

alleged so in their Complaint: “Website owners likewise
have property rights . . . in the copies of their websites that
appear on internet users’ monitors and screens.” Plaintiffs’
attempt on appeal to eliminate the distinction between their
proprietary websites and the copies of such websites is
rejected. See Airs Aromatics LLC v. Op. Victoria’s Secret
Stores Brand Mgmt., Inc., 744 F.3d 595, 600 (9th Cir. 2014)
(“A party cannot amend pleadings to directly contradic[t] an
assertion made in the same proceeding.”) (internal quotation
marks and citation omitted, alteration in original). We thus
root our trespass to chattels analysis in Plaintiffs’ website
copies.
Plaintiffs do not allege a possessory interest in copies of
their websites sufficient to give rise to a trespass to chattels
claim. Under California law, trespass to chattels “lies where
an intentional interference with the possession of personal
property” causes injury. Hamidi, 30 Cal. 4th at 1350–51
(emphasis added), quoting Thrifty–Tel, Inc. v. Bezenek, 46
Cal. App. 4th 1559, 1566 (1996). Plaintiffs assert only a
conclusory allegation that they have “possessory interests”
in the copies of their websites that are transmitted to a user’s
device upon a request from Search App. We do not accept
this legal conclusion as true. See Whitaker v. Tesla Motors,
Inc., 985 F.3d 1173, 1176 (9th Cir. 2021) (stating an
adequate complaint must contain “well-pleaded facts, not
legal conclusions”). Nor should we. Under Plaintiffs’
theory, they maintain a possessory interest in an intangible
copy that (1) is created when a user visits a website via the
Search App, (2) exists on the user’s device, and (3) is deleted
by the user when they leave the page. Plaintiffs’ possessory
interest is thus entirely dependent on actions taken by an
individual user unassociated with Plaintiffs or their websites.
A possessory interest does not lie under these circumstances.
 BEST CARPET VALUES, INC. V. GOOGLE LLC 9

Nor do Plaintiffs allege a cognizable property interest in
the website copies that may serve as the basis for a trespass
to chattels claim.4 The district court’s analysis to the
contrary misreads both the governing law and Plaintiffs’
Complaint. The district court reasoned that “[c]onsistent
with [Kremen] and subsequently issued cases . . . a website
can be the subject of a trespass to chattels claim.” In
Kremen, we held that the California law of conversion
applied to an internet domain name, not the website itself or
other intangible assets attendant to the website. See 337 F.3d
at 1030. And Plaintiffs’ Complaint highlights that a website
copy and its domain name are different concepts, explaining
that “[a] website is a digital document built with software
and housed on a computer called a ‘web server,’ which is
owned or controlled in part by the website’s owner” while a
domain name is a unique identifier “which enables an
internet user to find the web server on which the website
resides.” For these reasons, the website copies are the proper
focus of the property-interest inquiry.
The district court similarly erred in concluding that
Plaintiffs have a cognizable property interest in website
copies. In Kremen, we applied the following three-part test
to conclude that a property right existed in a domain name:
“First, there must be an interest capable of precise definition;

4
Contrary to Plaintiffs’ assertion, Google did not waive its argument
against Plaintiffs’ property interest in the website copies. The district
court’s certification order granted Google permission to seek our review
on the question of whether Kremen “should be extended to protect as
chattel the copies of websites displayed on a user’s screen.” Google’s
contention that Plaintiffs do not allege a cognizable property interest in
the website copies, one of the elements of a trespass to chattels claim,
Hamidi, 30 Cal. 4th at 1350–51, sits comfortably within the scope of the
district court’s order.
10 BEST CARPET VALUES, INC. V. GOOGLE LLC

second, it must be capable of exclusive possession or
control; and third, the putative owner must have established
a legitimate claim to exclusivity.” 337 F.3d at 1030, quoting
G.S. Rasmussen & Assocs., Inc. v. Kalitta Flying Serv., Inc.,
958 F.2d 896, 903 (9th Cir. 1992). Decades later, this “test
[still] stakes out useful guideposts” for determining the
existence of a property right when addressing a question
involving intangible property. Holistic Supplements, 61 Cal.
App. 5th at 553.
Application of Kremen’s three-part test here leads to the
conclusion that a cognizable property right does not exist in
a website copy.
First, a website copy is not “capable of precise
definition” because there is no single way to display a
website copy. Kremen, 337 F.3d at 1030. As Plaintiffs
acknowledge in the Complaint, a web browser “obtains a
copy of the requested website page . . . [and] translate[s] the
website’s codes [to] recreat[e] the website page on the user’s
computer monitor or mobile device screen.” This
translation of website code into a visual appearance
necessarily varies across browsers and devices. Plaintiffs
respond that the lack of a fixed display does not defeat their
property interest. Although in Kremen we held that updating
records in a document did not defeat a finding of a property
interest, id. at 1035, Plaintiffs’ argument elides the core
inquiry of the “capable of precise definition” part. California
law requires that the property interest be “well-defined” and
“like staking a claim to a plot of land at the title office.” Id.
 BEST CARPET VALUES, INC. V. GOOGLE LLC 11

at 1030. A website copy possesses neither of these
qualities.5
Second, a website copy is not “capable of exclusive
possession or control.” Id. Plaintiffs have not alleged, nor
could they allege, that they retain control over the copies of
their websites that are generated and sent to users’ devices.
Unlike a domain name, where the registrant “decides where
on the Internet those who invoke that particular name—
whether by typing it into their web browsers, by following a
hyperlink, or by other means—are sent[,]” id., once the
website copy is generated and sent to the user’s device, users
have control over what to do with it—whether to click on a
link on Plaintiffs’ sites, resize the page, navigate away from
the page themselves, or click on one of the links provided in
the results.
Plaintiffs’ invocation of Cal. Civ. Code § 655 does not
remedy this lack of control. Section 655 states in relevant
part: “There may be ownership of all inanimate things which
are capable of appropriation or of manual delivery; . . . of
such products of labor or skill as the composition of an
author, the good will of a business, trade marks and signs,
and of rights created or granted by statute.” Cal. Civ. Code
§ 655. But section 655 merely suggests what kinds of
property may be owned. The statute says nothing about how
such property interests are defined, which is a necessary
exercise for determining whether that property may serve as

5
Plaintiffs claim a particular interest in the portion of the screen (in their
words, “advertising space”) that is occupied by the Search App’s
leaderboard. But whether that space even exists and how it is displayed
rely on how the website’s codes are translated as well as the user’s
choices.
12 BEST CARPET VALUES, INC. V. GOOGLE LLC

the basis of a state-law claim. See Holistic Supplements, 61
Cal. App. 5th at 548, 553.
Third and finally, there is no “legitimate claim to
exclusivity” over website copies. Kremen, 337 F.3d at 1030.
Plaintiffs themselves recognize that they do not control how
their websites are displayed on different devices or web
browsers. This lack of exclusivity renders website copies
fundamentally different from other types of intangible
property recognized as being subject to California state-law
property claims. See G.S. Rasmussen, 958 F.2d at 903
(regulatory certificate); Payne v. Elliot, 54 Cal. 339, 342
(1880) (corporate stock); Holistic Supplements, 61 Cal. App.
5th at 553 (tax registration certificate); Welco Elecs., Inc. v.
Mora, 223 Cal. App. 4th 202, 211 (2014) (credit line from a
credit card company); Fremont Indem. Co. v. Fremont Gen.
Corp., 148 Cal. App. 4th 97, 125 (2007) (business’s net
operating loss); Golden v. State, 133 Cal. App. 2d 640, 643
(1955) (liquor license). Because Plaintiffs do not control
how the copies of their websites are shown in different
environments, they have no legitimate claim to exclusivity
over those copies.
Our conclusion necessarily follows from property law’s
core tenets. “[P]roperty law has long protected an owner’s
expectation that he will be relatively undisturbed at least in
the possession of his property.” Loretto v. Teleprompter
Manhattan CTV Corp., 458 U.S. 419, 436 (1982). These
“[g]eneral principles of property law require that a property
owner have the legal right to exclude others from use and
enjoyment of that property.” Alderson v. United States, 686
F.3d 791, 796 (9th Cir. 2012). Without such legal
entitlement in this case, property law provides no remedy for
an alleged trespass to chattels claim.
 BEST CARPET VALUES, INC. V. GOOGLE LLC 13

We hold that there is no cognizable property interest in
website copies that may serve as the basis for a trespass to
chattels claim under California law.6 The district court erred
in allowing Plaintiffs’ case to proceed on this theory.
B.
Having concluded that Plaintiffs’ trespass to chattels
claim must be dismissed, we turn to Plaintiffs’ state-law
implied-in-law contract and unjust enrichment claim. This
claim, and Google’s argument in response thereto,
implicates the third question certified by the district court for
interlocutory appeal: “Whether website owners can invoke
state law to control how their websites are displayed on a
user’s screen without preemption by federal copyright law.”
Again, we answer the certified question in the negative.
As we have previously explained, “[t]he Copyright Act
[(the Act)] affords copyright owners the ‘exclusive rights’ to
display, perform, reproduce, or distribute copies of a
copyrighted work, to authorize others to do those things, and
to prepare derivative works based upon the copyrighted
work.” Maloney v. T3Media, Inc., 853 F.3d 1004, 1010 (9th
Cir. 2017), citing 17 U.S.C. § 106. The Act provides that
“all legal or equitable rights that are equivalent to any of the
exclusive rights within the general scope of copyright as
specified by section 106 . . . and come within the subject
matter of copyright as specified by sections 102 and 103
. . . are governed exclusively by this title.” 17 U.S.C.
§ 301(a). In other words, section 301(a) works “to preempt
and abolish any rights under the common law or statutes of
a State that are equivalent to copyright and that extend to

6
We therefore have no reason to revisit Kremen’s discussion of the
“merger rule” under California law. See 337 F.3d at 1033.
14 BEST CARPET VALUES, INC. V. GOOGLE LLC

works,” if the rights in question fall “within the scope of the
Federal copyright law.” Maloney, 853 F.3d at 1010, quoting
H.R. Rep. No. 94–1476, at 130 (1976).
“We have adopted a two-part test to determine whether
a state law claim is preempted by the Act.” Laws v. Sony
Music Entm’t, Inc., 448 F.3d 1134, 1137 (9th Cir. 2006).
“First, we decide whether the subject matter of the state law
claim falls within the subject matter of copyright as
described in 17 U.S.C. §§ 102 and 103. Second, assuming it
does, we determine whether the rights asserted under state
law are equivalent to the rights contained in 17 U.S.C. § 106,
which articulates the exclusive rights of copyright holders.”
Maloney, 853 F.3d at 1010 (internal citations and quotation
marks omitted).
We agree with the district court that step one of our
preemption test is satisfied here because the manner that
Plaintiffs’ websites are displayed falls within the subject
matter of federal copyright law.
“[T]he subject matter of copyright encompasses
‘original works of authorship fixed in any tangible medium
of expression, now known or later developed, from which
they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine
or device.’” Close v. Sotheby’s, Inc., 894 F.3d 1061, 1069
(9th Cir. 2018), quoting 17 U.S.C. § 102(a). “A work need
not consist entirely of copyrightable material in order to
meet the subject matter requirement, but instead need only
fit into one of the copyrightable categories in a broad sense.”
Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296,
305 (2d Cir. 2004).
Plaintiffs concede, and Google agrees, that commercial
websites are copyrightable. We have not directly addressed
 BEST CARPET VALUES, INC. V. GOOGLE LLC 15

this question, but several district courts in our circuit have
adopted the parties’ position. See, e.g., Ticketmaster L.L.C.
v. Prestige Entm’t W., Inc., 315 F. Supp. 3d 1147, 1160–61
(C.D. Cal. 2018); Blue Nile, Inc. v. Ice.com, Inc., 478 F.
Supp. 2d 1240, 1248 (W.D. Wash. 2007).
We previously recognized that federal copyright law
extends to “works of authorship” beyond those works
enumerated in 17 U.S.C. § 102(a). For example, we held
that computer software, including “the literal components”
like “the source and object code,” is subject to copyright
protection and that “the non-literal components of a
program, including the structure, sequence and organization
and user interface” may also be protected “depend[ing] on
whether . . . the component in question qualifies as an
expression of an idea, or an idea itself.” Johnson Controls,
Inc. v. Phoenix Control Sys., Inc., 886 F.2d 1173, 1175 (9th
Cir. 1989). We later added that computer software’s
“dynamic non-literal elements” (users’ real-time experience)
were subject to copyright protection. MDY Indus., LLC v.
Blizzard Entm’t, Inc., 629 F.3d 928, 954 (9th Cir. 2010). The
Supreme Court has endorsed our understanding of computer
software’s copyrightability. See Google LLC v. Oracle Am.,
Inc., 141 S. Ct. 1183, 1196 (2021).
A commercial website similarly qualifies for federal
copyright protection even though it is not explicitly
mentioned in section 102(a). A website is a “work[] of
authorship fixed in any tangible medium of expression.” 17
U.S.C. § 102(a). Although the exact appearance of the
website may vary across devices, the website’s content does
not change unless and until the website creator makes a
change to the underlying source code. See Hunley v.
Instagram, 73 F.4th 1060, 1063 (9th Cir. 2023). Similarly,
websites possess copyrightable literal elements (source
16 BEST CARPET VALUES, INC. V. GOOGLE LLC

code); non-literal elements (including “logos, images, fonts,
videos and sound effects”); and dynamic non-literal
elements (such as the experience of viewing the website).
Ticketmaster, 315 F. Supp. 3d at 1160–61, citing MDY
Indus., 629 F.3d at 952. Furthermore, the website’s content
is “perceived, reproduced, or otherwise communicated”
“with the aid of a machine or device,” 17 U.S.C. § 102(a),
because an internet browser connects to the website’s server,
translates the website’s code, and recreates the content
specified by the code on the user’s device. See Perfect 10,
Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1155–56 (9th Cir.
2007). Therefore, we conclude that a commercial website,
like computer software, may qualify for copyright
protection.
On appeal, Plaintiffs attempt to recast the subject matter
of their claim as “Google’s advertising” and “the advertising
space on Plaintiffs’ websites” rather than the websites
themselves. But again, Plaintiffs cannot escape their
Complaint, which alleges that Search App “place[d]
Google’s leaderboard and half page banner ads on the copies
of the[ir] website pages.” The district court properly held
that Plaintiffs alleged rights within the subject matter of
federal copyright law when they challenged the manner that
Google displayed Plaintiffs’ websites. Plaintiffs’ analogies
to advertising outside of a theater or in front of a work of art
similarly miss the mark. As we have explained, “the scope
of the subject matter of copyright law is broader than the
protections it affords.” Montz v. Pilgrim Films & Tel., Inc.,
649 F.3d 975, 979 (9th Cir. 2011) (en banc), citing 4
Melville B. Nimmer & David Nimmer, Nimmer on
Copyright § 19D.03[A][2][b] (rev. ed. 2010). For this
reason, our preemption analysis focuses on whether
Plaintiffs’ Complaint invokes the subject matter of federal
 BEST CARPET VALUES, INC. V. GOOGLE LLC 17

copyright law—it does—rather than whether Search App’s
advertisements infringe on Plaintiffs’ copyrightable
websites.
However, at step two of our preemption test, the district
court erred in determining that the rights asserted in
Plaintiffs’ implied-in-law contract and unjust enrichment
claim were not equivalent to the rights provided under 17
U.S.C. § 106.
Section 106 grants copyright owners the “‘exclusive
rights’ to display, perform, reproduce, or distribute copies of
a copyrighted work, to authorize others to do those things,
and to prepare derivative works based upon the copyrighted
work.” Maloney, 853 F.3d at 1019, quoting 17 U.S.C. § 106.
“To survive preemption, the state cause of action must
protect rights which are qualitatively different from the
copyright rights.” Id. (citation omitted). In this way, “[t]he
state claim must have an extra element which changes the
nature of the action.” Laws, 448 F.3d at 1143, quoting Del
Madera Props. v. Rhodes & Gardner, 820 F.2d 973, 977 (9th
Cir. 1987).
The district court reasoned that Plaintiffs’ claim was not
preempted because “Plaintiffs are not asserting infringement
of any right to the reproduction, performance, distribution,
or display of their websites.” But “[c]opyrightability is a
different question from infringement and is determined on
different legal principles.” SAS Inst., Inc. v. World
Programming Ltd., 64 F.4th 1319, 1338 (Fed. Cir. 2023)
(Newman, J., dissenting). Here, the district court improperly
focused on the nature of the complained of action when
copyrightability—and by extension, the preemption
analysis—must focus on the nature of the right at issue.
18 BEST CARPET VALUES, INC. V. GOOGLE LLC

We need not decide whether it is more appropriate to
characterize Plaintiffs’ Complaint as implicating rights to (a)
display or reproduce copies or (b) prepare derivative works
because the Complaint invokes both rights and both rights
are recognized under federal copyright law.7 Plaintiffs
alleged that Search App “obtains a copy of the requested
website page from the host web server and delivers the copy
to the user by translating the website’s codes” and then
“recreat[es] the website page on the user’s . . . mobile device
screen.” Displaying and reproducing a copy of a
copyrighted work (Plaintiffs’ website) falls squarely within
the scope of 17 U.S.C. § 106. See MDY Indus., 629 F.3d at
938. Plaintiffs further alleged that Search App
“superimpose[ed] advertisements on their websites’
homepages and other landing pages” when displayed on
screens. Google’s reproductions of Plaintiffs’ websites,
which necessarily vary in appearance on users’ screens, can
be recognized as an act of “prepar[ing]” “derivative works.”
See Jarvis v. K2 Inc., 486 F.3d 526, 531–32 (9th Cir. 2007)
(holding as derivative works collage ads where the defendant
“shrank, expanded, distorted, overlaid and otherwise edited
the [plaintiff’s] original images, while also combining them
with photos taken by other photographers, additional
graphics, the [defendant’s] logo and marketing slogans.”).

7
As one treatise has suggested, the right to prepare “derivative works”
may be superfluous in most cases because the statute defines a
“derivative work” as one “based upon one or more preexisting works,”
in other words, a copy. 2 Nimmer on Copyright § 8.09[A][1], citing 17
U.S.C. § 101; see also Benny v. Loew’s, Inc., 239 F.2d 532 (9th Cir.
1956), aff’d sub nom. Columbia Broad. Sys. Inc. v. Loew’s Inc., 356 U.S.
43 (1958) (examining an earlier but substantially similar version of the
Copyright Act and holding that infringement applied to both the “other
version” and “copy” of the copyrightable material). Plaintiffs’ state-law
claim is preempted regardless of how we characterize the right.
 BEST CARPET VALUES, INC. V. GOOGLE LLC 19

Either way, these allegations implicate the exclusive rights
to copyright holders bestowed by federal statute.
Having determined that Plaintiffs’ implied-in-law
contract and unjust enrichment claim falls within the subject
matter of and asserts rights equivalent to those provided by
federal copyright law, the only remaining task is to inquire
whether Plaintiffs’ state-law claim carries “an extra
element” as compared to a federal copyright claim. It does
not.
“The elements of a cause of action for unjust enrichment
are simply stated as receipt of a benefit and unjust retention
of the benefit at the expense of another.” Tufeld Corp. v.
Beverly Hills Gateway, L.P., 86 Cal. App. 5th 12, 31–32
(2022) (internal quotation marks and citation omitted). As a
leading treatise has opined, “a state-law cause of action for
unjust enrichment or quasi contract should [generally] be
regarded as an ‘equivalent right’ and, hence, preempted
insofar as it applies to copyright subject matter.” 1 Melville
B. Nimmer & David Nimmer, Nimmer on Copyright
§ 1.15[G] (2023).
The district court concluded that Plaintiffs’ claim was
not preempted because it contained “extra elements” but did
not articulate what those extra elements were. Instead, the
district court opined that Plaintiffs’ claim was “qualitatively
different from a copyright claim” apparently because
“Google allegedly covered up or obscured a portion of
Plaintiffs’ websites from Android phone users for [Google’s
own] financial benefit.” But such alleged action by Google
is strikingly similar to “distort[ing], overla[ying] and
otherwise edit[ing] original images, while also combining
them with . . . additional graphics, . . . and marketing
slogans,” which we have found to qualify as derivative work.
20 BEST CARPET VALUES, INC. V. GOOGLE LLC

Jarvis, 486 F.3d at 531. Furthermore, the alleged financial
benefit to Google maps neatly onto the damage requirement
for any successful copyright claim. See 17 U.S.C.
§ 504(a)(1) (holding that a copyright infringer may be liable
for “the copyright owner’s actual damages and any
additional profits of the infringer”). Therefore, the alleged
benefit to Google from Search App’s display of Plaintiffs’
website, such as there was one, is not an “extra element”
beyond the elements of federal copyright law. Because the
implied-in-law contract and unjust enrichment claim “is not
materially different from a claim for copyright infringement
that requires a plaintiff to prove that the defendant used,
reproduced, copied, or displayed a copyrighted work,” it is
preempted. Forest Park Pictures v. Univ. Tel. Network, Inc.,
683 F.3d 424, 432 (2d Cir. 2012); accord Del Madera, 820
F.2d at 977.
The main case upon which Plaintiffs rely to rebut the
notion that their unjust enrichment claim lacks any extra
element of a copyright claim, Grosso v. Miramax Film
Corp., 383 F.3d 965 (9th Cir. 2004), is readily
distinguishable. That case involved an implied-in-fact
contract containing an added element of an explicit
“agreement to pay for use of the disclosed ideas.” Montz,
649 F.3d at 980, citing Grosso, 383 F.3d at 967–68. In
contrast, here Plaintiffs advance a theory based on a contract
implied-in-law without any additional agreement, either
explicit or implicit.
Finally, even construing Plaintiffs’ implied-in-law
contract and unjust enrichment claim as an allegation that
Google exceeded the scope of its license does not save the
claim from preemption. See MDY Indus., 629 F.3d at 940
(“[W]e have held that the potential for infringement exists []
where the licensee’s action (1) exceeds the license’s scope
 BEST CARPET VALUES, INC. V. GOOGLE LLC 21

(2) in a manner that implicates one of the licensor’s
exclusive statutory rights.”). Plaintiffs alleged that Google
has a license to reproduce copies of their websites that users
may access on their mobile screens through Google’s
browser, and that Google exceeded this license by
“superimposing non-consensual ads onto” their websites.
The district court agreed, indicating that another reason that
Plaintiffs’ claim was not preempted was that “Plaintiffs want
and expect Google to copy and display their websites in
Chrome browser and Search App, and acknowledge that
Google has license to do so.” But Plaintiffs do not specify
the scope of Google’s license—by indicating if or how
Google’s license to display copies of their websites was
conditioned in any way. Therefore, it is not clear what
“cognizable legal right of [Plaintiffs] has been violated.”
Marina Tenants Ass’n v. Deauville Marina Dev. Co., 181
Cal. App. 3d 122, 134 (1986); see also S.O.S., Inc. v.
Payday, Inc., 886 F.2d 1081, 1087–88 (9th Cir. 1989)
(holding that “[t]he critical question is not the existence but
the scope of the license”).
We hold that Plaintiffs’ state-law claim is preempted
under federal copyright law. The district court erred in
permitting Plaintiffs’ case to proceed on this theory.
IV.
For these reasons, we conclude that the district court
erred in denying Google’s motion to dismiss and allowing
Plaintiffs to advance their California state-law claims of
trespass to chattels and unjust enrichment. Their remaining
claim, based on UCL’s prohibition of an “unlawful
. . . business act or practice,” requires a predicate state or
federal law claim. Lippitt v. Raymond James Fin. Servs.,
Inc., 340 F.3d 1033, 1043 (9th Cir. 2003), citing Cal. Bus. &
22 BEST CARPET VALUES, INC. V. GOOGLE LLC

Prof. Code § 17200 and Cel-Tech Commc’ns, Inc. v. L.A.
Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999). No predicate
claims remain and Plaintiffs cannot proceed on their UCL
claim alone. Accordingly, we reverse the district court’s
order denying Google’s motion to dismiss and remand the
case with instructions to dismiss.
REVERSED AND REMANDED.