Copyright Preemption Forecloses Brandy Melville’s Non-Copyright Claims Against Shein

In an order dated April 28, 2026, the Honorable Otis D. Wright II of the Central District of California granted in part Shein’s motion to dismiss Brandy Melville’s claims for false designation of origin under § 43(a) of the Lanham Act and for common law unfair competition. The Court held that both claims were preempted by the Copyright Act because each rested on the same allegations as Brandy Melville’s copyright infringement claim. The Court denied Shein’s separate motion to strike portions of the contributory and vicarious copyright infringement counts. Bastiat USA, Inc. v. Shein Distribution Corp., No. 2:25-cv-05701, 2026 U.S. Dist. LEXIS 93420 (C.D. Cal. Apr. 28, 2026).

Background

Brandy Melville, a teen and young-women’s fashion brand owned by plaintiff Bastiat USA, alleged that Shein and third-party sellers on the “Shein Marketplace” platform displayed Brandy Melville’s photographs from its website and social media to sell similar goods at lower prices on Shein.com, without permission. Bastiat brought five causes of action: (1) copyright infringement; (2) false designation of origin under the Lanham Act, 15 U.S.C. § 1125(a); (3) common law unfair competition; and (4) and (5) contributory and vicarious copyright infringement. Shein moved to dismiss counts 2 and 3 under Rule 12(b)(6), and to strike certain false-designation-of-origin allegations from counts 4 and 5 under Rule 12(f).

False Designation of Origin

Under Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), a plaintiff cannot use § 43(a) of the Lanham Act to vindicate rights that already belong to copyright. The Supreme Court warned against allowing trademark law to be turned into “a species of mutant copyright law.” Id. at 34. The Ninth Circuit has applied that limitation to Lanham Act claims more accurately conceived of as attacks on unauthorized copying of creative content rather than on confusion about who manufactured the goods. Slep-Tone Ent. Corp. v. Wired for Sound Karaoke & DJ Servs., LLC, 845 F.3d 1246, 1250 (9th Cir. 2017). When the plaintiff has a remedy under the Copyright Act, the parallel Lanham Act claim is preempted. Lions Gate Ent. Inc. v. TD Ameritrade Servs. Co., 170 F. Supp. 3d 1249, 1264 (C.D. Cal. 2016).

Bastiat’s Lanham Act claim rested on Shein’s alleged copying and display of Brandy Melville’s photographs and product designs. As Judge Wright put it, “[a]t bottom, these allegations support a claim for unauthorized copying and use of creative works,” conduct addressed by copyright law, not trademark law. Bastiat tried to save the claim by sprinkling in consumer-confusion language, but the court held that a plaintiff cannot avoid preemption by recasting copyright allegations in trademark vocabulary. Count 2 was dismissed with prejudice.

Common Law Unfair Competition

The Copyright Act preempts state-law claims that protect rights equivalent to the exclusive rights of copyright when (1) the underlying work falls within copyright’s subject matter and (2) the claim asserts rights equivalent to those in 17 U.S.C. § 106. Kodadek v. MTV Networks, Inc., 152 F.3d 1209, 1212 (9th Cir. 1998); 17 U.S.C. § 301(a). To survive preemption, the state-law claim must contain an “extra element that changes the nature of the action.” Grosso v. Miramax Film Corp., 383 F.3d 965, 968 (9th Cir. 2004).

Bastiat alleged that Shein’s use of its photographs and advertising materials implied an association with Brandy Melville. The Court found that the implied-association theory rested on the same factual allegations as the Lanham Act claim. The supporting paragraphs were, in the court’s reading, largely identical. They added no qualitatively different right beyond the exclusive rights to reproduce and to display in public. With no extra element, count 3 was preempted and dismissed with prejudice.

Surviving Claims

The Court denied Shein’s separate motion to strike paragraphs 81 and 87 (which referenced false designation of origin) from the contributory and vicarious copyright infringement counts. Those allegations might bear on Shein’s knowledge, supervisory authority, financial benefit, or willfulness in connection with the surviving copyright claims, and the court concluded that such issues were better tested on a complete factual record than on a Rule 12(f) motion. See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010). Counts 1, 4, and 5 (direct, contributory, and vicarious copyright infringement) survived.

Takeaway

The order is a reminder that when the gravamen of every claim is the same act of copying creative content, the Lanham Act and common law unfair competition claims absorb the copyright preemption analysis and rarely survive a motion to dismiss, even if the complaint sprinkles in consumer-confusion or implied-association language. To salvage the additional theories, plaintiffs need to plead conduct that is independent of the copying: source confusion as to the tangible goods (such as counterfeit use of the brand name on the products themselves), or an actionable misrepresentation that has nothing to do with reproduction of copyrighted material. Otherwise, what is left is the copyright claim that should have been at the heart of the complaint to begin with.