Mr. Justice Pitney

delivered the opinion of the court.

The parties are competitors in the gathering and distribution of news and its publication for profit in newspapers throughout the United States. The Associated Press, which was complainant in the District Court, is a cooperative organization, incorporated under the Membership Corporations Law of the State of New York, its members being individuals who are either proprietors or representatives of about 950 daily newspapers published in all parts of the United States. That a corporation may be organized under that act for the purpose of gathering news for the use and benefit of its-members and for publication in newspapers owned or represented«by them, is recognized by an amendment enacted in 1901 (Laws N. Y. 1901, c. 436). Complainant gathers'in all parts of the world, by means of various instrumentalities of its own, by exchange with its members, apd by other appropriate means, news and intelligence of current and recent events of interest to newspaper readers and distributes it daily to its members for publication in their newspapers. The. cost of the service, amounting approximately to $3,500,000 per annum, is assessed upon the members and becomes a part of their costs of operation, to be recouped, presumably with profit, through *230the publication of their several newspapers. Under complainant’s by-laws each member agrees upon assuming membership that news received through complainant’s service is received exclusively for publication in a particular newspaper, language, and place specified in the certificate of membership, that no other use of it shall be permitted, and that no member shall furnish or permit anyone in his employ or connected with his newspaper to furnish any of complainant’s news in advance of publication to any person not a member. And each member is required to gather the local news of his district and supply it to the Associated Press and to no one else.

Defendant is a corporation organized under the laws of the State of New Jersey, whose business is the gathering and selling of news to its customers and clients, consisting of newspapers published throughout the United States, under contracts by which they pay certain amounts at stated times for defendant’s service. It has wide-spread news-gathering agéncies; the cost of its operations amounts, it is said, to more than $2,000,000 per annum; and it serves about 400 newspapers located in the various cities of the United States and abroad, a few of which are represented, also, in the membership of the Associated Press.

The parties are in the keenest competition between themselves in the distribution of news throughout the United States; and so, as a rule, are the newspapers that they serve, in their several districts.

Complainant in its bill, defendant in its answer, have set forth in almost identical terms the rather obvious circumstances and' conditions under which their business is conducted. The value of the service, and of. the news furnished, depends upon the promptness of transmission, as well as upon the accuracy and impartiality of the news; it being essential that the news be transmitted to members or subscribers as early or earlier than similar information can be furnished to competing newspapers *231by other news services, and that the news furnished by each agency shall not be furnished to newspapers which do not contribute to the expense of gathering it. And further, to quote from the answer: “Prompt knowledge and publication of world-wide news is essential to the conduct of a modern newspaper, and by reason of the enormous expense incident to the gathering and distribution of such news, the only practical way in which a proprietor of a newspaper can obtain the same is, either through cooperation with a considerable number of other newspaper proprietors in the work of collecting and distributing such news, and the equitable division with them of the expenses thereof, or by the purchase of such news from some existing agency engaged in that business.”

The bill was filed to restrain' the pirating of complainant’s news by defendant in three ways: First, by bribing employees of newspapers published by complainant’s members to furnish Associated. Press news to defendant before publication, for transmission by telegraph and telephone to defendant’s clients for publication by them; Second, by inducing Associated Press members to violate its by-laws and permit defendant to obtain news before publication; and Third, by copying news from bulletin boards- and from, early editions of complainant’s newspapers and selling this, either bodily or after rewriting -it, to defendant’s customers.

The District Court, upon consideration of the bill and answer, with voluminous affidavits on both sides, granted & preliminary injunction under the first and second heads; but refused at that stage to restrain the systematic practice admittedly pursued by defendant, of taking news bodily from the bulletin boards and early editions of complainant’s newspapers and selling it as its own. The court expressed itself as satisfied that this practice amounted to unfair trade, but as the legal question was *232one of first impression it considered that the allowance of an injunction should await the outcome of an appeal. 240 Fed. Rep. 983, 990. Both parties having appealed, the Circuit Court of Appeals sustained the injunction order so far as it went, and upon complainant’s appeal modified it and remanded the cause with directions to issue an injunction also against any bodily taking of the words or substance of complainant’s news until its commercial value as news had passed away. 245 Fed. Rep. 244, 253. The present writ of certiorari was then allowed. 245 U. S. 644.

The only matter that has been argued before us. is whether defendant may lawfully be restrained from appropriating news taken from bulletins issued by complainant or any of its members, or from newspapers published by them, for the purpose of selling it to defendant’s clients. Complainant asserts that defendant’s admitted course of conduct in this regard both violates complainant’s property right in the news and constitutes unfair competition iii business. And notwithstanding the case has proceeded only to the stage of a preliminary injunction, we have deemed it proper to consider the underlying questions, since they go to the very merits of the action and are presented upon facts that are not in dispute. As presented in argument, these questions are: 1. Whether there is any property in news; 2. Whether, if there be property in news collected for the purpose of being published, it survives the instant of its publication in the first newspaper to which it is communicated by the news-gatherer; and 3. Whether defendant’s admitted course of conduct in appropriating for commercial use matter taken from bulletins or early editions of Associated Press publications constitutes unfair competition in trade.

The federal jurisdiction was invoked because of diversity of citizenship, not upon the ground that the suit arose under the copyright or other laws of the United *233States. Complainant’s news matter is not copyrighted. It is said that it could not, in practice, be copyrighted, because of the large number of dispatches that are sent daily; and, according to complainant’s contention, news is not within the operation of the copyright act. Defendant, while apparently conceding this, nevertheless invokes, the analogies of the law of literary property and copyright, insisting as its principal contention that, assuming complainant has a right of property in its news, it can be maintained (unless the copyright act be complied with) only by being kept secret and confidential, and that upon the publication with complainant’s consent of uncopyrighted news by any of complainant’s members in a newspaper or upon a bulletin board, the right of property is lost, and the subsequent use of the news by the public or by defendant for any purpose whatever becomes lawful.

A preliminary objection to the form in which the suit is brought may be disposed of at the outset. It is said that the Circuit Court of Appeals granted relief upon considerations applicable to particular members of the Associated Press, and that this was erroneous because the suit was brought by complainant as a corporate entity, and not by its members; the argument being that their interests cannot be protected in this procéeding any more than the individual rights of a stockholder can be enforced in an action brought by the corporation. From the averments of the bill, however, it is plain that the suit in substance was brought for the benefit of complainant’s members, and that they would be proper parties, and, except for their numbers, perhaps necessary parties. Complainant is a proper party to conduct the suit as representing their interest; and since no specific objection, based upon the want of parties, appears to have been made below, we will treat the objection as waived. See Equity Rules 38, 43, 44.

*234In considering the general question of property in news matter, it is necessary to recognize its dual character, distinguishing between the substance of the information and the particular form or collocation of words in which the writer has communicated it.

No doubt news articles often possess a literary quality, and are the subject of literary property at the common law; nor do we question that such an article, as a literary production, is the subject of copyright by the'terms of the act as it now stands. In an early case at the circuitMr. Justice Thompson held in effect that a newspaper was not within the protection of the copyright acts of 1790 and 1802 (Clayton v. Stone, 2 Paine, 382; 5 Fed. Cas. No. 2872). But the present act is broader; it provides that the works for which copyright may be secured shall include “all the writings of an author,” and specifically mentions “periodicals, including newspapers.” Act of March 4, 1909, c. 320, §§ 4 and 5, 35 Stat. 1075, 1076. Evidently this admits to copyright a contribution to a newspaper, notwithstanding it also may convey news; and such is the practice of the copyright office, as the newspapers of the day bear witness. See Copyright Office Bulletin No. 15 (1917), pp. 7, 14,16-17.

But the news element — the information respecting current events contained in the literary production — is not the creation • f the writer, but is a report of matters that Ordinarily are vubVici juris; it is the history of the day. It is not to be s ipposed that the framers of the Constitution, when they empowered Congress “to promote the progress of science' and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (Const., Art I, § 8, par. 8), intended to confer upon one who might happen to be the first to report a historic event the exclusive right for,any period to spread the knowledge of it.

We need spend no time, however, upon the general *235question of property in news matterCat common law, or the application of the copyright act, since it seems to us the case must turn upon the question of unfair competition in business. And, in our opinión, this does not depend upon any general right of property analogous to the common-law right of the proprietor of an unpublished work to prevent its publication without his consent; nor is it foreclosed- by showing that the benefits of the copyright act have been waived. We are dealing here not with restrictions upon publication but with the very facilities and processes of publication. The peculiar value of news is in the spreading of it while it is fresh; and it is evident that a valuable property interest in the news, as news, cannot be maintained by. keeping it secret. Besides, exéept for matters improperly disclosed, or published in breach of trust or confidence, or in violation of law, none of which is involved in this branch of the case, the news of current events may be regarded as common property What we are concerned with is the business of making it known to the world, in which both parties to the present suit are engaged. That business consists in maintaining a prompt, sure, steady, and reliable service designed to place the daily events of the world at the breakfast table of the millions at a price that, while of trifling moment to each reader, is sufficient in the aggregate to afford compensation for the cost of gathering and distributing it, with the added profit so necessary as an incentive to effective action in the commercial world. The service thus performed for newspaper readers is not only innocent but extremely useful in itself, and indubitably constitutes a legitimate business. The parties are competitors in this field; and, on fundamental principles, applicable here as elsewhere, when the rights or privileges of the one are liable to conflict with those of the other, each party is under a duty so to conduct its own business as not unnecessarily or unfairly to injure *236that of the other. Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 254.

Obviously, the question of what is unfair competition in business must be determined with particular reference to the character and circumstances of the business. The question here is not so much the rights of either party as against the public but their rights as between themselves. See Morison v. Moat, 9 Hare, 241, 258. And although we may and do assume that neither party has any remaining property interest’ as against the public in uncopyrighted news matter after the moment of its first publication, it by no means follows that there is no remaining property interest in it as between themselves. For, to both of them alike, news matter, however little susceptible of ownership or dominion in the absolute sense, is stock in trade, to be gathered at the cost of enterprise, organization, skill, labor, and money, and to be distributed and sold to those who will pay money for it, as for any other merchandise. Regarding the news, therefore, as but the material out of which both parties are seeking to make profits at the same time and in the same field, we hardly can fail to recognize that for this purpose, and as between them, it must be regarded as quasi property, irrespective of the rights of either as against the public.

In.order to sustain the jurisdiction of equity over the controversy, we need not affirm any general and absolute property in the news as such. The rule that a court of equity concerns itself only in the protection of property rights treats any civil right of a pecuniary nature as a property right (In re Sawyer, 124 U. S. 200, 210; In re Debs, 158 U. S. 564, 593); and the'right to acquire property by honest labor or the conduct of a lawful business •is as much entitled to protection as the right to guard property already acquired. Truax v. Raich, 239 U. S. 33, 37-38; Brennan v. United Hatters, 73 N. J. L. 729, 742; *237 Barr v. Essex Trades Council, 53 N. J. Eq. 101. It is this right that furnishes the basis of the jurisdiction in the ordinary case of unfair competition.

The question, whether one who has gathered general information or news at pains and expense for the purpose of subsequent publication through the press has such an interest in its publication as may be protected from interference, has been raised many times, although never, perhaps, in the precise form in which it is now presented.

Board of Trade v. Christie Grain & Stock Co., 198 U. S. 236, 250, related to the distribution of quotations of prices on dealings upon a board of trade, which were collected by plaintiff and communicated on confidential terms to numerous persons under a contract not to make them public. This court held that, apart from certain special objections that Were overruled, plaintiff’s collection of quotations was entitled to the protection of the law; that, like á trade secret, plaintiff might keep to itself the work done at its expense, and did not lose its right by communicating the result to persons, even if many, in confidential relations to itself, under a contract not to make it public; and that strangers should be restrained from getting at the knowledge by inducing a breach of trust.

■In National Tel. News Co. v. Western Union Tel. Co., 119 Fed. Rep. 294, the Circuit Court of Appeals for the Seventh Circuit dealt with news matter gathered and transmitted by a telegraph company, and consisting merely of a notation of current events having but a transient value due to quick transmission and distribution; and, while declaring that this was not copyrightable although printed on a tape by tickers in the offices of the recipients, and that it was a commercial not a literary product, nevertheless held that the business of gathering and communicating the news — the service of purveying it — was a legitimate business, meeting a distinctive commercial want and adding to the facilities of the business *238world, and partaking of the nature of property in a sense that entitled it to the protection of a court of equity against piracy.

Other cases are cited, but none that we deem it necessary to mention..

• Not only do the acquisition and transmission of news reqúire elaborate organization and a large expenditure of money, shill, and effort; not only has it an exchange value to the gatherer, dependent chiefly upon its novelty and freshness, the regularity of the service, its reputed reliability and thoroughness^ and its adaptability to the public needs; but also, as is evident, the news has ah exchange value to one who can misappropriate it.

The peculiar features of the case arise from the fact that, while novelty and freshness form so important an element in the success of the business, the very processes of distribution and publication necessarily occupy a good deal of time. Complainant’s service, as well as defendant’s, is a daily service to daily newspapers; most of the foreign news reaches this country at the Atlantic seaboard, principally at the City of New York, and because of this, and of time differentials due to the earth’s rotation, the distribution of news matter throughout the country is principally from east to west; and, since in speed the telegraph and telephone easily outstrip the rotation of the earth, it is a simple matter for defendant to take complainant’s news from bulletins or early editions of complainant’s members in the eastern cities and at the mere cost of telegraphic transmission cause it to be published in western papers issued at least as early as those served by complainant. Besides this, and irrespective of time differentials, irregularities in telegraphic transmission on different lines, and the normal consumption of time in printing and distributing the newspaper, result in permitting pirated news to.be placed in the hands of defendant’s .readers sometimes simultaneously with the service *239of competing Associated Press papers,, occasionally even earlier.

Defendant insists that when, with, the sanction and approval of complainant, and as the result of the.use of its news for the very purpose for which it is distributed, a portion of complainant’s members communicate it to the general public by posting it upon bulletin boards so that all may réád, or by issuing it to newspapers and distributing it indiscriminately, complainant no longer has the right to control the use to be made of it; that when it thus reaches the light of day it becomes the common possession of all to whom it is accessible; and that any purchaser of a newspaper has the right to communicate the intelligence! which it contains to anybody and for any purpose, even for the purpose of selling it for profit to newspapers published for profit in competition with complainant’s members.

The fault in the reasoning lies in applying as a test the right of the complainant as against the public, instead of considering the rights of complainant and defendant, competitors in business, as between themselves. The right of the purchaser of a single newspaper to spread'knowledge of its contents gratuitously, for any legitimate purpose not unreasonably interfering with complainant’s right to make merchandise of it, may be admitted; but to transmit that news for commercial use, in competition with complainant — which is what defendant has7 done and seeks to justify — is a very different matter. In doing this defend^ ant, by its very act, admits that it is taking material that has been acquired by complainant as the result of organization and the expenditure of labor, skill, and money, and which is salable by complainant for money, and that defendant in appropriating it and selling it as its own is endeavoring to reap where it has not sown, and by disposing of it to newspapers that are competitors of complainant’s members is' appropriating to itself the harvest *240of those who have sown. Stripped of all disguises, the process amounts to-an unauthorized interference with the normal operation of' complainant’s legitimate business precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have, earned it,to those who have not; with special advantage to defendant in the competition because of the fact that it is not burdened with any part of the expense of gathering the news. The transaction speaks for itself, and a court of equity ought not to hesitate long in characterizing it .as unfair competition in business.

The underlying principle is much the same as that which lies at the base of the equitable theory of consideration in the law of trusts — that he who has fairly paid the price should have the beneficial use of the property. Pom. Eq. Jur., § 981. It .is no answer to say that complainant spends its money for that which is too fugitive or evanescent to be the subject of property; That might, and for the purposes of the discussion we are assuming that 'it would, furnish an answer in á common-law controversy. But in a court of equity, where the question is one of unfair competition, if that which complainant haá acquired fairly at substantial cost may be sold fairly at substantial profit,, a competitor who is misappropriating it for the purpose of disposing of it to his own profit and to the disadvantage of complainant cannot be heard to say that it is too fugitive or evanescent to be regarded as property. It has all the attributes of property necessary for determining that a misappropriation of it by a competitor is unfair competition because contrary to good conscience.

The contention that the news is abandoned to the public for all purposes when published in the first newspaper is untenable. Abandonment is a question of intent, and the entire organization of the Associated Press negatives such a purpose. The cost of the service would be prohibitive if the reward were to be so limited. No single *241newspaper, no small group of newspapers, could sustain the expenditure. Indeed, it is one of the most obvious results of defendant’s theory that, by permitting indiscriminate publication by anybody and everybody for purposes of profit in competition with the news-gatherer, it would render publication profitless, or so little profitable as in effect to cut off the service by rendering the cost prohibitive in comparison with the return. The practical needs and requirements of the business are reflected in complainant’s by-laws which have been referred to. Their effect is that publication by each member must be deemed not by any means an abandonment of the. news to the world for any and all purposes,'but a publication for limited purposes; for the benefit of the readers of the bulletin or the newspaper as such; not for the purpose of making merchandise of it as news, with the result of depriving complainant’s other members of their reasonable opportunity to obtain just returns for their expenditures.

It is to be observed that the view we adopt does not result in giving to complainant the right to monopolize. either the gathering or the distribution of the news, or, without complying with the copyright act, to prevent the reproduction of its news articles; but only postpones participation by complainant’s competitor in the processes of distribution and reproduction of news that it has not gathered, and only to the extent necessary to prevent that competitor from reaping the fruits of complainant’s efforts and expenditure, to fhe partial exclusion of complainant, and in violation of the principle that underlies the maxim sic utere tuo, etc.

It is said that the elemen+s of unfair competition are lacking because there is no attempt by defendant to palm off its goods as those of the complainant, characteristic of the most familiar, if not the most typical, cases of unfair competition. Howe - Scale Co. v. Wyckotf, Seamans & Benedict, 198 U. S. 118, 140. But we cannot concede that *242the right to equitable relief is confined to that class of cases. In the present case the fraud upon complainant’s rights is more direct and obvious. Regarding news matter as the mere material from which these two competing parties are endeavoring to make money, and treating it, therefore, as quasi property for the. purposes of their business because they are both selling it as such, defendant’s conduct differs from the ordinary case of unfair competition in trade principally in this that, instead of selling its own goods as those of complainant, it substitutes misappropriation in the place of misrepresentation, and sells complainant’s goods as its own.

Besides the misappropriation, there are elements 'of imitation, of false pretense, in defendant’s practices. The device of rewriting complainant’s news articles, frequently resorted to, carries its own comment.. The habitual failure to givé credit to complainant for that which is taken is significant. Indeed, the entire system of appropriating complainant’s news and transmitting it as a commercial product to defendant’s clients and patrons amounts to a false representation to them and to their newspaper readers that the news transmitted is the result of defendant’s own investigation in the field. But these elements, although accentuating the wrong, are not the essence of it. It is something more than tlfé advantage of celebrity of which complainant is being deprived.

The doctrine of unclean hands is invoked as a bar to relief; it. being insisted that defendant’s practices against which complainant seeks an injunction are not different from the practice attributed to complainant, of utilizing defendant’s news published by its subscribers. At this point it becomes necessary to consider a distinction that is drawn by complainant, ancl, as we understand it, was recognized, by defendant also in the submission of proofs in the District Court, between two kinds of use that may be made by one news agency of news taken from the *243bulletins and newspapers of the other. The first is the bodily appropriation of á statement of fact or a news article, with or without rewriting, but without independent investigation or other expense. This fomCof pirating was found by both courts to have been pursued by defendant systematically with respect to complainant’s news, and against it the Circuit Court of Appeals granted an injunction. This practice complainant denies having pursued, and the denial was sustained by the finding of the District Court. It is not contended by defendant that the finding can be set aside, upon the proofs as they now stand. The other use is to take the news of a rival agency as a “tip” to be investigated, and if verified by independent investigation the news thus gathered is sold. This practice complainant admits that if has pursued and still is willing that defendant shall employ.

Both courts held that complainant could not be debarred on the ground of unclean hands upon the score of pirating defendant’s news, because not shown to bé guilty of sanctioning this practice.

As to securing “tips” from a competing news agency, the District Court (240 Fed. Rep. 991, 995), while not sanctioning the practice,. found .that both parties had adopted it in accordance with common business usage, in the belief that their conduct was technically, lawful, and hence did not find nfit any sufficient ground for áttribut- „ ing unclean hands to complainant. The Circuit Court of Appeals (245 Fed. Rep. 247) found that the tip habit, though discouraged" by complainant, was incurably journalistic,” and that there was “no difficulty in discriminating between the utilization of ‘tips’ and the bodily appropriation of another’s labor in accumulating and stating information.” ,

.We are inclined to think a distinction may be drawn between the utilization of tips and the bodily appropriation of news matter, either in its original, form or after *244rewriting and without independent investigation and verification; whatever may appear at the final hearing, the proofs as they now stand recognize such a distinction; both parties avowedly recognize the practice of taking tips, and. neither party alleges it to be .unlawful or to amount to unfair competition.in business. In a line of . English cases a somewhat analogous practice has been held not to amount to an infringement of the copyright of a directory or other book containing compiled information. In Kelly v. Morris, L. R. 1 Eq. 697, 701, 702, Vice Chancellor Sir William Page Wood (afterwards Lord Hatherly), dealing with such a case, said that defendant was “not entitled to také one word of the informatión previously published without independently working out the matter for himself, so as to arrive at the same result -from the same common sources of information,, and the only use that he can legitimately, make of a previous publication is to verify his own calculations and results when obtained.” This was followed by Vice Chancellor Giffard in Morris v. Ashbee, L. R. 7 Eq. 34, where he said: “In a case such as this no one has a right to take the results of the labour and expense incurred by another for the purposes of a rival publication, and thereby save himself the expense and labour of working out and arriving at these results by some independent road.” A similar view was adopted by Lord Chancellor Hatherly and the former Vice Chancellor, then Giffard, L. J., in Pike v. Nicholas, L. R. 5 Ch. App. Cas. 251, and shortly afterwards by the latter judge in Morris v. Wright, L. R. 5 Ch. App. Cas. 279, 287, where he said, commenting upon Pike v. Nicholas: “It was a perfectly legitimate course for the defendant to refer to the plaintiff’s book, and if, taking that book as his guide, he went to the original authorities and compiled his book from them, he made no unfair or improper use of the plaintiff’s book; and so here, if the fact be that Mr. Wright used the plaintiff’s *245book in order to guide himself to the persons on whom it would be worth his while to call, and for no other purpose, he made a perfectly legitimate use of the plaintiff’s, book.”

A like distinction was recognized by the Circuit Court of Appeals for the Second Circuit in Edward Thompson Co. v. American Law Book Co., 122 Fed. Rep. 922, and in West Publishing Co. v. Edward Thompson Co., 176 Fed. Rep. 833, 838.

In the case before us, in the present state of the pleadings and proofs, we need go no further than to hold, as we do, that the admitted pursuit by complainant of the practice of. taking news items published by defendant’s subscribers as tips to be investigated, and, if verified, the result of the investigation to be sold — the practice having been followed by defendant also, and by news agencies .generally — is not shown to be such as to constitute an unconscientious or inequitable attitude towards its adversary so as to fix upon complainant the taint of unclean ■ hands, and debar it on this ground from the relief to which it is. otherwise entitled.

There is some criticism of the injunction that was directed by the District Court' upon the going down of the mandate from the Circuit Court of Appeals. In brief, it restrains any taking or gainfully using of the complainant’s news, either bodily or in substance, from bulletins issued by the complainant or any of its members, or from editions of their newspapers, “until its commercial value as news to the complainant and all of its members has passed away.” The part complained of is the clause we have italicized; but if this be indefinite, it is no more so than the criticism. Perhaps it would be better that the terms of the injunction be made specific, and so framed as to confine the restraint to an extent consistent with the reasonable..protection of complainant’s newspapers, each in its own area and for a specified time after its *246publication, against the competitive use of pirated news by defendant’s customers.. But the case presents practical difficulties; and we have not the materials, either in the way of a definite suggestion of amendment, or in the way of proofs, upon which to frame a specific injunction; hence, while not expressing approval of the form adopted by the District Court, we decline to modify it at this preliminary stage of the case, and will leave that court t<|. deal with thu matter upon appropriate application made to it for the purpose.

The decree of the Circuit Court of. Appeals will be

Affirmed.

Mr. Justice Clabke took ño part in the consideration or decision of this case.

Mr. Justice Holmes:

When an uncopyrighted combination of words is published there is no general right to forbid other people repeating them — in other words there is no property in the combination or in the thoughts or facts that the words express. Property, a creation of law, does not arise from value, although exchangeable — a matter of fact. Many exchangeable values may be destroyed intentionally without compensation. Property depends upon exclusion by law from interference, and a person is not excluded from using, any combination of words merely because someone has used it before, even, if it took labor and genius to make it. If a given person is to be prohibited from making the use of words that his neighbors . are free to make some other ground must be found. One such ground is vaguely expressed in the phrase unfair trade. This means that the words are repeated by a competitor in business in such a way ¿s. to convey a misrepresentation that materially injures the person who first used them, by appropriating credit of some' kind *247which the first user has earned. The ordinary case is a representation by device, appearance, or other indirection that the defendant’s goods come from the plaintiff. But the only reason why it is actionable to make such a representation is that it tends to give the defendant an advantage in his competition with the plaintiff and that it' is thought undesirable that an advantage should be gained in that way.' Apart from that the defendant may use such unpatented devices and uncopyrighted combinations of words as he likes. The ordinary case, I say, is palming off the defendant’s product as the plaintiff’s, but the same evil may follow from the opposite falsehood — from saying, whether in words or by implication^ that the plaintiff’s product is the defendant’s, and that, it seems to me, is what h^s happened here.

Fresh news is got only by enterprise and expense. To produce such news as it is produced by the defendant represents by implication that it has been acquired by the defendant’s enterprise and at its expense. When it comes from one of the great news-collecting agencies like the Associated Press, the source generally is indicated, plainly importing that credit; and that such a representa-^ tion is implied may be inferred with some confidence, from the unwillingness of the defendant to give the credit and tell , the truth. If the plaintiff produces the news at the same time that the defendant does, the defendant’s presentation impliedly denies to the plaintiff the credit of collecting the facts and assumes that credit to the defendant. If. the plaintiff is lateA in western cities it naturally will be supposed to have obtained its information from the defendant. The falsehood is a little more subtle, the injury a little more indirect, than in ordinary cases of unfáir trade, but I think that the principle that ^condemns the one condemns the other. It is a question of how strong an infusión of fraud is necessary to turn a flavor into a poison., The dose seems to me strong *248enough here to need & remedy from the law. But as, in my view, the only ground of" complaint that can be recognized without legislation is the implied misstatement, it can be corrected by stating the truth; and a suitable acknowledgment of the source is all that the plaintiff can require. I think that within the limits recognized by the decision of the Court the defendant should be enjoined from publishing news obtained from the Associated Press for hours after publication by the plaintiff unless it gives express credit to the Associated Press; the number of hours and the form of acknowledgment to be settled by the District Court.

Mr. Justice McKenna concurs in this opinion.

Mr. Justice Brandéis

dissenting.

There are published in the United States about 2,500 daily papers.1 More than 800 of them are supplied with domestic and foreign news of general interest by the Associated Press — a corporation without capital stock which does not sell news or earn or seek to earn profits, but serves merely as an instrumentality by means of which these papers supply themselves at joint expense with such news. Papers not members of the Associated Press depend for their news of general interest largely upon agencies organized for profit.2 Among these agen*249cies is the International News Service which supplies news to about 400 subscribing papers. It 'has, like the Associated Press, bureaus and correspondents in this and foreign countries; and its annual expenditure in gathering and distributing news is about $2,000,000. Ever since its organization in 1909, it has included among the-sources from which it gathers news, copies (purchased in the open market) of early editions of some papers published by members of the Associated Press and the bulletins publicly posted by them. These .items, which constitute but a small part of the news transmitted to its subscribers, are generally verified by the International News Service before transmission; but frequently items are transmitted without verification; and occasionally even without being re-written. In no case is the fact disclosed that such item was suggested by or taken from a paper or bulletin published by an Associated Press member.

No question of statutory copyright" is involved. The sole question for our consideration is this: Was the International News Service properly enjoined from using, or causing to be used gainfully, news of which it acquired knowledge^ by lawful means (namely, by reading publicly posted bulletins or papers purchased by it in the open market) merely because the news had been originally gathered by the Associated Press and continued to be of value to some of its members, or because it did not reveal the source from which it was acquired?

The “ticker” cases, the cases concerning literary and artistic compositions, and cases of unfair competition were relied upon in support of the injunction. But it is admitted that none of those cases affords a complete analogy with that before us. The question presented for decision is new; and it is important.

News is a report of recent occurrences. The business of the news agency is to gather systematically knowledge *250of such occurrences of interest and to distribute reports thereof. The Associated Press contended that knowledge so acquired is property, because it costs money and labor to produce and because it has value for which those who . have it not are ready to pay; that it remains property and is entitled to protection as long as it has commercial value as news; and that to protect it effectively the defendant must be enjoined from making, or causing to be made, any gainful use of it while it retains such value. An essential element of individual property is the legal right to exclude others from enjoying it. "If the property is private, the right of exclusion may be absolute; if the property is affected with a public interest, the right of exclusion is qualified. But the fact that a product of the mind, has cost its producer money and labor, and has a value for which others are willing to pay, is not sufficient to ensure to it this legal attribute of property. The general rule of law is, that the noblest of human productions — knowledge, truths ascertained, conceptions, and ideas — become, after voluntary communication to others, free as the air to common use. Upon these incorporeal productions the attribute of property is continued after such communication only in certain classes of cases where public policy has seemed to demand it. These exceptions are confined to productions which, in some degree, involve creation, invention, or discovery. But by no means all such .are endowed with this attribute of property. The creations which are recognized as property by the common law are literary, dramatic, musical, and other artistic creations;, and these* have also protection under tlje copyright statutes.. The inventions and discoveries upon which this attribute of property is conferred only by statute, are the few comprised within the ^patent law. There are also many, other cases in which courts interfere to prevent curtailment of plaintiff’s enjoyment of incorporeal productions; and in which the *251right to relief is often called a property right, but is such only in a special sense. In those cases, the plaintiff has no absolute right to the protection of his production; he has merely the qualified right to be protected as against the defendant’s acts, because of the special relation in which the latter stands or the wrongful method or means employed in acquiring the knowledge or the manner in which it is used. Protection of this character is afforded where the suit is based upon breach of contract or of trust or upon unfair competition.

The knowledge for which protection is sought in the case at bar is not of a kind upon which the law has heretofore conferred the attributes of property: nor is the manner of its acquisition or use nor the purpose to which it is applied, such as has heretofore been recognized as entitling a plaintiff to relief.

First: Plaintiff’s principal • reliance was upon the “ticker” cases; but they do not support its contention. The leading cases on this subject rest the grant of relief, not upon the existence of a general property right in news, but upon the breach of a contract or trust concerning the use of news communicated; and that element is lacking here. In Board of Trade v. Christie Grain & Stock Co., 198 U. S. 236, 250, the court said the Board “does not lose its rights by communicating the result [the quotations] to persons, even if many, in confidential relations to itself, under a contract not to make it public, and strangers to the trust will be restrained from getting at the knowledge by inducing a breach of trust and using knowledge obtained by such a breach.” And it is also stated there, (page 251): “Time is of the essence in matters like this, and it fairly may be said that, if the contracts with the plaintiff are kept, the information will not become public property until the plaintiff has gained, its reward.” The only other case in this court which relates to this subject-is Hunt v. N. Y. Cotton Exchange, 205 U. S. *252322. While the opinion there refers the protection to a general property right in the quotations, the facts are substantially the same as those in the Christie Case, which is the chief authority on which the decision is based. Of the cases in the lower federal courts and in the state courts it may be said, that most of them too can, on their facts, be reconciled with this principle, though much of the language of- the courts cannot be.1 In spite of anything that may appear in these Cases to the contrary it seems that the true principle is stated in the Christie Case, that the collection of quotations “stands like a trade secret.” And in Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373, 402, this court says of a . trade secret: “Any one may use it who fairly, by analysis and experiment, discovers it. But the complainant is -entitled to be protected against invasion of its right iri the process by fraud or by breach of trust or contract.” See John D. Park & Sons Co. v. Hartman, 153 Fed. Rep. 24, 29.

The leading English case, Exchange Telegraph Co. v. Gregory & Co., [1896] 1 Q. B. 147, is also rested clearly upon a breach of contract or trust, although there is some *253reference to a general, property right. The later English cases seem to have rightly understood the basis of the decision, and they have not- sought to extend it further than was intended. Indeed, we find the positive suggestion in some cases that the only ground for relief is the manner in which knowledge of the report of the news was acquired.1

If the news involved in the case at bar.had been posted in violation of any agreement between the Associated Press and its members, questions similar to those in the “ticker” cases might have arisen. But the plaintiff does not contend that the posting was wrongful or that any papers were wrongfully issued by its subscribers. On the contrary it is conceded that both the bulletins and the papers were issued in accordance with the regulations of the plaintiff. Under such circumstances, for a reader of the papers purchased in the open market, or a leader of the bulletins publicly posted, to procure and use gainfully, information therein contained, does not involve inducing anyone to commit a breach either of contract or of trust, or committing or in any way abetting a breach of confidence.

Second: Plaintiff also relied upon the cases which hold that the common-law right of the producer to prohibit copying is not lost by the private circulation of . a literary composition, the delivery of a lecture, the exhi*254bition of a painting, or the performance of a dramatic or musical composition.1 These cases rest upon the ground that the common law recognizes such productions as property which, despite restricted communication, continues until there is a dedication to the public under the copyright statutes or otherwise. But they are inapplicable for two reasons, (1) At common law, as under the copyright acts, intellectual productions are entitled to such protection only if there is underneath something evincing the mind of a creator or originator, however modest the requirement. The mere record of isolated happenings, whether in words or by photographs not involving artistic skill, are denied such protection.-2 (2) At common law, as under the copyright acts, the element in intellectual productions which secures such protection is not the knowledge, truths, ideas, or emotions which -the composition expresses, but the form or sequence in which they are expressed; that is, “some new collocation of visible or audible points, — of lines, colors, sounds, or *255words.” See White-Smith Music Co. v. Apollo Co., 209 U. S. 1, 19; Kalem Co. v. Harper Brothers, 222 U. S. 55, 63. An author’s theories, suggestions, and speculations, or the systems, plans, methods, and arrangements of an originator, derive no such protection from the statutory copyright of the book in which they are set forth;1 and they are likewise denied such protection at common law.2

That news is not property in the strict sense is illustrated by the case of Sports and General Press Agency, Ltd., v. “Our Dogs” Publishing Co., Ltd., [1916] 2 K. B. 880, where the plaintiff, the assignee of the right to photograph the exhibits at a dog show, was refused an injunction against defendant who. had also taken pictures of the show and was publishing them. The court said that, except in so far as the possession of the land occupied by the show enabled the proprietors to exclude people or permit them on condition that they agree not to take photographs (which condition was not imposed in that case), the proprietors had no exclusive right to' photograph the show and could therefore grant no such right. And, it was further stated that, at any rate, no matter what conditions might be imposed upon those entering the grounds, if the defendant had been on. top of a house or in some position where he could photograph the show without interfering with the physical property of the plaintiff, the plaintiff would have no right to stop him. If, when the plaintiff creates the event recorded, he is not entitled to the exclusive first publication of the *256news (in that case a photograph) of the event, no reason can be shown why he should be accorded such protection as to events which he simply records and transmits to other parts of the world, though with great expenditure of time and money.

Third: If news be treated as possessing the characteristics not of a trade secret, but of literary property, then the earliest issue of a paper of general circulation or the earliest public posting of a bulletin which embodies such news would, under the established rules governing literary property, operate as a publication, and all property in the news would then cease. Resisting this conclusion, plaintiff relied upon the cases which hold that uncopy-righted intellectual and artistic property survives private circulation or a restricted publication; and it contended that in each issue of each .paper, a restriction is to be implied that the news shall not be used^gainfully in competition with the Associated Press or any of its members. There is no basis for such an implication. But it is also well settled that where the publication is in fact a general one, even express words of restriction upon use are inoperative. In other words, a general publication is ' effective to dedicate literary property to the public, regardless of the actual intent of its owner.1 In the cases dealing with lectures, dramatic and.' musical performances, and art exhibitions,2 upon which plaintiff relied, there was no general publication in print comparable to the issue of daily newspapers or the unrestricted public posting of bulletins. The principles governing those cases differ mote or less in application, if not'in theory, from the principles governing the issue of printed copies; *257and in so far as they do differ, they have no application to the case at bar.

'Fourth: Plaintiff further contended that defendant’s practice constitutes unfair .competition,, because there is “appropriation without cost to itself of values created by” the plaintiff; and it is upon this ground .that the. decision of this court appears to be based. To appropriate and use for profit, knowledge and ideas produced by other men, without making compensation or oven acknowledgment, may be inconsistent with a finer sense of propriety; but, with the. exceptions indicated above, the law has heretofore sanctioned the practice. Thus it was held that one may ordinarily make and- sell anything in any form, may copy with exactness that which another has produced, or may otherwise use his ideas without his consent and without the payment of compensation, and yet not inflict a legal injury;1 and that ordinarily one is at perfect liberty to find out, if he can by lawful means, trade secrets of another, however valuable, and then use the knowledge so acquired gainfully, although it cost the original owner much in effort and in money to collect or produce.2

*258Such, taking and gainful use of a product of another which, for reasons of public policy, the law has refused to endow with the attributes of property, does not become unlawful because the product happens tó have been taken from a rival and is used in competition with him. The unfairness in competition which hitherto has been recognized by the law as a basis for relief, lay in the manner or means of conducting the business; and the manner or means held legally unfair, involves either fraud or force or the doing of acts otherwise prohibited by law. In the “passing off” cases (the typical and most common case of unfair competition), the wrong consists in fraudulently representing by word or act that defendant’s goods are those of plaintiff. See Hanover Milling Co. v. Metcalf, 240 U. S. 403, 412-413. In the other cases, the diversion of trade was effected through physical or moral coercion, or by inducing breaches of contract or of trust or by enticing away employees. In some others, called cases of simulated competition, relief was granted because defendant’s purpose was unlawful; namely, not competition but deliberate and wanton destruction of plaintiff’s business.1

*259. That competition is not unfair in a legal sense, merely because the profits gained are unearned, even if made at the expense of. a rival, is shown by many cases besides those referred to above. He who follows the pioneer into a new market, or who engages in the manufacture of an article newly introduced by another, seeks profits due largely to the labor and expense of the first adventurer; but the law sanctions, indeed encourages, the pursuit.1 He who makes a city known through his product, must submit to sharing the resultant trade with others who, perhaps for that reason, locate there later. Canal Co. v. Clark, 13 Wall. 311; Elgin National Watch Co. v. Illinois Watch Co., 179 U. S. 665, 673. He who has made his name a guaranty of quality, protests in vain when another with the same name engages, perhaps for that reason, in the same lines of business; provided, precaution is taken to prevent the public from being deceived into the belief that what he is selling was made by his competitor. One bearing a name made famous by another is permitted to enjoy the unearned benefit which necessarily flows from such use, even though the use proves harmful to him who gave the name value. Brown Chemical Co. v. Meyer, 139 U. S. 540, 544; Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118; Donnell v. Herring-Hall-Marvin Safe Co., 208 U. S. 267; Waterman Co. v. Modern Pen Co., 235 U. S. 88. See Saxlehner v. Wagner, 216 U. S. 375.

The means by which the International News Service obtains news gathered by the Associated Press is also clearly unobjectionable. It is taken from papers bought in the open market or from bulletins publicly posted. *260No breach of contract such as the court considered to exist in Hitchman Coal & Coke Co. v Mitchell, 245 U. S. 229, 254; or of trust such as was present in Morison v. Moat, 9 Hare, 241; and neither fraud nor force, is involved. The manner of use is likewise unobjectionable. No reference is made by word or by act to the Associated Press, either in transmitting the news to subscribers or by them in publishing it in their papers. Neither the International News Service nor its subscribers is gaming or seeking to gain in its business a benefit from the reputation of the Associated Press. They are merely using its product without making compensation. See Bamforth v. Douglass Post Card & Machine Co., 158 Fed. Rep. 355; Tribune Co. of Chicago v. Associated Press, 116 Fed. Rep. 126. That, they have a legal right to do; because the product, is not property, and they do not stand in any relation to the Associated Press, either of contract or of trust, which otherwise precludes such use. The argument is not advanced by characterizing such taking and use a misappropriation.

It is also suggested, that the fact that defendant does not refer to the Associated Press as the source of the news may furnish a basis for the relief. But the defendant and its subscribers, unlike members of the Associated Press, were under no contractual obligation to disclose the source of the news; and there is no rule of law requiring acknowledgment to be made where uncopyrighted matter is reproduced. The International News Service is said to mislead its subscribers into, believing that the news transmitted was. originally gathered by it and that they in turn mislead their, readers. There is, in fact, no representation by either of any kind. Sources of information are sometimes given because required by contract; sometimes because naming the source gives authority to an otherwise incredible statement; and sometimes the source is named because the agency does not wish to. take the *261responsibility itself of giving currency to the news. But no representation can properly be implied from omission to mention the source of information except that the International News Service is transmitting news which it believes to be credible.

Nor is the use made by the International News Service of the information taken from papers or bulletins of Associated Press members legally objectionable by reason of the purpose for which it was employed. The acts here complained of were not done for the purpose of injuring the business of the Associated Press. Their purpose was not even to divert its trade, or to put it at a disadvantage by lessening defendant’s necessary expenses. The purpose was merely to supply subscribers of the International News Service promptly with all available news. The suit is, as this court declares, in substance one brought for the benefit of the members of the Associated Press, who would be proper, and except for their number perhaps necessary, parties; and the plaintiff conducts the suit as representing their interest. It thus appears that the protection given by the injunction is not actually to the business of the complainant news agency; for this agency does not sell news nor seek to earn profits, but is a mere instrumentality by which 800 or more newspapers collect and distribute news. It is these papers severally which are protected; and the protection afforded is not from competition of the defendant, but from possible competition of one or more of the 400 other papers which receive the defendant’s service. Furthermore, the protection to these Associated Press members consists merely in denying to other papers the right to use, as news, information which, by authority of all concerned, had theretofore been given to the public by some of those who joined in gathering it; and to which the law denies the attributes of property. There is in defendant’s purpose nothing on which to base a claim for relief.

*262It is further said that, while that for which the Associated Press spends its money is too fugitive to be recognized as property in the common-law courts, the defendant cannot be heard to say so in a court of equity, where the question is one of unfair competition. The case presents no elements of equitable title or of breach of trust. The only possible reason for resort to a court of equity in a case like this is that the remedy which the law gives is inadequate. If the plaintiff has no legal cause of action, the suit necessarily fails. Levy v. Walker, L. R. 10 Ch. D. 436, 449. There is nothing in the situation, of the parties which can estop the defendant from saying so.

Fifth: The great development of agencies now furnishing country-wide distribution of news, the vastness of our territory, and improvements in the means of transmitting intelligence, have made it possible for a news • agency or newspapers to obtain, without paying compensation, the fruit of another’s efforts and to use news so obtained gainfully in competition with the original collector. The injustice of such action is obvious. But to give relief against it would involve more than the application of existing rules of law to new facts. It would require the making of a new rule in analogy to existing. ones. The unwritten law possesses capacity for growth; and has often satisfied new demands for justice by invoking analogies or by expanding a rule or principle. This process has been in the main wisely applied and should not be discontinued. Where the problem is relatively simple, as it is apt to be when private interests only are involved, it generally proves adequate. But wjth the increasing complexity of society, the public interest tends to become omnipresent; and the problems presented by new demands for justice cease to be simple. Then the creation or recognition by courts of a new private right may work serious injury to the general public, unless the *263boundaries of the right are definitely established and wisely guarded. In order to reconcile the new private right with the public interest, it may be necessary to prescribe limitations and rules for its énjoyment; and also to provide administrative machinery for enforcing the rules. It is largely for this reason that, in the effort to meet the many new demands for justice incident to a rapidly changing civilization, resort to legislation has latterly been had with increasing frequency.

The rule for which the plaintiff contends would effect an important extension of property rights and a corresponding curtailment of the free use of knowledge and of ideas; and the facts of this case admonish us of the.danger involved in recognizing such a property right in news, without imposing upon news-gatherers corresponding obligations. A large majority of the newspapers and perhapsJoalf the newspaper readers of the United States are dependent for their news of general interest upon agencies other than the Associated Press. The channel through which about 400 of these papers received, as the plaintiff alleges, “a large amount of news relating to the European war of the greatest importance and of intense interest to the néwspaper reading public” was suddenly closed. The closing to the International News Service of these channels for foreign- news (if they were closed) was due not to unwillingness on its part to pay the cost of collecting the news, but to the prohibitions imposed by foreign governments upon its securing news from -their respective countries and from using cable or telegraph fines running therefrom. For aught that appears, this prohibition may have been wholly undeserved; and at all events the 400“ papers and their readers may be assumed to have been innocent. For aught that appears, the International News Service may have sought then to secure temporarily by arrangement with the Associated Press the latter’s foreign news service. For aught that *264appears, all of the 400 subscribers of the International News Service would gladly have then become members of the Associated Press, if they could have secured election thereto.1 It is possible, also, that a large part of the readers of these papers were so situated that they could not secure prompt access to papers served by the Associated Press. The prohibition of the foreign governments might as well have been extended to the channels through which news was supplied to the more than a thousand other daily papers in- the United States' not served by the Associated Press; and a large part of their readers may also be so located that they can not procure prompt access to papers served by the Associated Press.

A legislature, urged to enact a law by which’ one news agency or newspaper may prevent appropriation of the fruits of its labors by another, would consider such facts and possibilities and others which appropriate enquiry might disclose.' Legislators might conclude that it. was impossible to put an end to. the obvious injustice involved in such appropriation of news, without opening the door to other evils, greater than that sought to be remedied. Such appears to have been the opinion of our Senate which reported unfavorably a bill to give news a few *265hours’ protection;1 and which ratified, on February 15, 1911, the convention adopted at the Fourth International American Conference;2 and such' was evidently the view also of the signatories to the International Copyright Union of November 13, 1908;3 as both these conventions expressly exclude news from copyright protection.

*266Or legislators dealing with the subject might conclude,' that the right to news .values should be protected to the extent of permitting recovery of damages for any unauthorized use, but. that protection by injunction should be denied, just as courts of .equity ordinarily refuse (perhaps in the interest of free speech) to restrain .actionable libels,1 and for other reasons decline to protect by. injunction mere political rights;2 and as Congress has prohibited courts from enjoining the illegal assessment or collection of federal taxes.3 IF a legislature concluded to recognize property in published news to the' extent of permitting recovery at law, it might, with a view to making the remedy more , certain and adequate, provide a fixed measure of. damages, as in the case of copyright infringement.4

Ór again, a legislature might conclude that it was unwise to recognize even so limited a property right in published news as that above indicated; but that a news agency should, on, some conditions, be given full protec*267tion of its business; and to that end a remedy by injunction as well as one for damages should be granted, where news collected by it is gainfully used without permission. If a legislature concluded, (as at least one court has held, New York & Chicago Grain & Stock Exchange v. Board of Trade, 127 Illinois, 153) that under certain circumstances news-gathering is a business affected with a public interest, it might declare that, in such cases, news should be protected against appropriation, only if the gatherer assumed the obligation of supplying it, at reasonable rates and without discrimination, to all papers which applied therefor. If legislators reached that conclusion, they would probably go further, and prescribe the conditions under which and the extent to which the protection should be afforded; and they might also provide the administrative machinery necessary for ensuring to the public, the press, and the news agencies, full enjoyment of the rights so conferred.

Courts are ill-equipped to make the • investigations which should precede a determination, of the limitations which should be set upon any property right in news or of the circumstances under which news gathered by a private agency should be deemed affected with a public interést. Courts would be powerless to prescribe the detailed regulations essential to full enjoyment of the rights conferred or to introduce the machinery required for enforcement of such regulations. Considerations such as these should lead us to decline to establish a new rule of law in the ■ effort to redress a newly-disclosed wrong, although the. propriety of some remedy appears to be clear.

OPINION OF THE COURT

Read, J.

The United States Court of Appeals for the Second Circuit has asked us to resolve two questions regarding New York common-law claims for unfair competition. We conclude that New York recognizes common-law unfair competition claims, but not the “famous” or “well-known” marks doctrine.

I.

ITC Limited, a corporation organized under the laws of India, owns and operates the Maurya Sheraton & Towers, a five-star luxury hotel in New Delhi, India, through its subsidiary, ITC Hotels Limited. One of the Maurya Sheraton’s seven restaurants is Bukhara, a five-star restaurant named after a city in Uzbekistan located on the famous Silk Road between China and the West. The New Delhi Bukhara, which has attained some measure of renown among those with an avid interest in fine cuisine, was named one of the 50 best restaurants in the world by London-based “Restaurant” magazine in 2002 and 2003. In the three decades since the New Delhi Bukhara opened in 1977, ITC has sought to capitalize on the restaurant’s prestige, with *472mixed results: although ITC has opened or franchised Bukhara restaurants in Hong Kong, Bangkok, Bahrain, Montreal, Bangladesh, Singapore, Kathmandu, Ajman and the United States, as of May 2004 only the original restaurant in New Delhi and the restaurants in Singapore, Kathmandu and Ajman remained in business.

ITC established a Bukhara restaurant in Manhattan in 1986; in 1987 a Bukhara restaurant was opened in Chicago by a franchisee. On October 13, 1987 ITC obtained United States trademark registration for a Bukhara mark in connection with restaurant services; however, ITC closed its Bukhara restaurant in Manhattan on December 17, 1991, and cancelled the Chicago restaurant’s franchise on August 28, 1997. ITC has not owned, operated or licensed any restaurant in the United States using the Bukhara mark since terminating the Chicago franchisee’s licensing agreement in 1997.

In 1999, defendants Raja Jhanjee, Vicky Vij, Dhandu Ram and Paragnesh Desai, together with Vij ay Roa, incorporated Punchgini, Inc. for the purpose of opening an Indian restaurant in midtown Manhattan, which they called Bukhara Grill. Jhanjee, Vij and Ram had all worked at the New Delhi Bukhara, and Vij had also worked at ITC’s Bukhara restaurant in Manhattan. As Vij explained the origin of the new restaurant’s name, in 1999 there was “no restaurant Bukhara in New York, and we just thought we [would] take the name” (ITC Ltd. v Punchgini, Inc., 482 F3d 135, 144 [2d Cir 2007]). In 2001, several Punchgini shareholders and defendants Mahendra Singh and Bachan Rawat, also alumni of ITC’s Bukhara, opened a second Indian restaurant in midtown Manhattan, called Bukhara Grill II (id.; ITC Ltd. v Punchgini, Inc., 373 F Supp 2d 275, 277 [SD NY 2005]). Defendants have identified five other restaurants in the United States using Bukhara in their names, including one in Brooklyn. These restaurants are not affiliated with ITC. In addition, defendants have learned of more than 20 Bukhara restaurants unrelated to ITC outside the United States, including restaurants located in Uzbekistan, Australia, Egypt, Pakistan, the United Kingdom and “a high-end . . . chain” in South Africa, which “also sells prepackaged foods under the ‘Bukhara’ name” and “owns the website www.bukhara.com.”

The Bukhara Grill features many of the New Delhi Bukhara’s signature dishes—which showcase the cuisine of the Northwest frontier region of India—and replicates many of its particular *473design elements. Indeed, one press report quoted Jhanjee as describing the Bukhara Grill as “quite like Delhi’s Bukhara,” commenting that “[t]he food is similar . . . and the waiters too are dressed in similar Pathani suits.”

On March 22, 2000, ITC’s attorney sent Jhanjee a letter accusing him of “passing off [his] new business [i.e., Bukhara Grill] as that of’ ITC, “piggy[ ]baek[ing] on the tremendous reputation” of ITC’s Bukhara restaurants, and “partak[ing] of the fame, goodwill and custom earned by [ITC], by the mere adoption of the identical name.” He demanded that Jhanjee acknowledge ITC’s exclusive rights to the Bukhara mark and refrain from further use of it; disclose how long he had used the Bukhara mark and render an accounting of sales and/or profits for this time period; and remit to ITC any such profits, plus estimated damages and attorneys’ fees.

Bukhara Grill’s counsel responded on March 30, 2000, observing that “preliminary investigation reveals that [ITC] does not presently use the mark BUKHARA in the United States nor has it been in use for more than two years.” Nevertheless, counsel suggested that discussions be pursued to avoid costly litigation. On June 22, 2000, Bukhara Grill’s counsel sent a follow-up letter, apparently to memorialize an oral request for ITC to “provide . . . proof of use of the alleged mark BUKHARA . . . in the United States over the last two years”; and to state that if there was no response “by June 28, 2000, we will assume that [ITC] has abandoned any rights it may have had in the alleged mark and any alleged claim against our client.”

On April 15, 2002, almost two years later, ITC’s attorney wrote to the Bukhara Grill’s counsel, complaining that there had been “[n]o formal response” to ITC’s 2000 cease-and-desist letter and reiterating ITC’s demands. On April 18, 2002, Bukhara Grill’s counsel replied, disputing the assertion that prior correspondence from ITC had been ignored, and reasserting abandonment, now claimed to have been “bolstered” by the passage of additional time.

On February 26, 2003, another 11 months later, ITC filed a lawsuit against defendants in the United States District Court for the Southern District of New York. The amended complaint alleged trademark infringement under section 32 (1) (a) of the Lanham Act (codified at 15 USC § 1114 [1] [a]); unfair competition and false advertising under sections 43 (a) and 44 (h) of the Lanham Act (codified at 15 USC § 1125 [a]; § 1126 [h]); and *474parallel actions under New York common law. As an affirmative defense, defendants charged ITC with abandonment of any rights in the United States to the Bukhara mark, and filed a counterclaim seeking cancellation of the mark’s registration on that ground.

Following discovery, defendants moved for summary judgment. As an initial matter, the District Court Judge ruled that ITC could not pursue a trademark infringement claim because the record conclusively demonstrated its abandonment of the Bukhara mark and dress for restaurants in the United States. He then considered ITC’s “assertions] that its unfair competition claims under section 43 (a) of the Lanham Act and the New York common law provide a basis for liability independent of trademark law”; that is, ITC claimed that “[e]ven if it abandoned the ‘Bukhara’ mark and dress within the United States ... it [was] nonetheless protected from unfair competition by virtue of the ‘well known’ or ‘famous’ marks doctrine” (373 F Supp 2d at 285-286).1

“The very existence of th[e well-known marks] doctrine is controversial,” the District Court Judge opined, “as is its scope. Neither party cites, nor has the Court found, any Supreme Court or Second Circuit authority upholding liability on this theory, and it has been applied infrequently by the federal district courts” {id. at 286). He noted that the Ninth Circuit had recently countenanced the doctrine, but that it did so under “circumstances . . . arguably different from those in this case” (id., citing Grupo Gigante SA De CV v Dallo & Co., Inc., 391 F3d 1088 [9th Cir 2004] [apparently as matter of policy, court permitted Mexican grocery chain to establish whether its “Gigante” mark was sufficiently widely known among Mexican-Americans in Southern California to be protected from use by California grocery chain]).

The Judge, however, remarked that “[t]wo early cases in New York state courts, with fact patterns strikingly similar to the *475events alleged here by ITC, exemplify the doctrine” (373 F Supp 2d at 286, citing Maison Prunier v Prunier’s Rest. & Cafe, Inc., 159 Misc 551 [Sup Ct, NY County 1936]; Vaudable v Montmartre, Inc., 20 Misc 2d 757 [Sup Ct, NY County 1959]). But “[assuming without deciding that these cases support the existence of an unfair competition claim, even in the absence of a viable U.S. trademark, on the basis of a foreign mark that is ‘well known’ or ‘famous,’ it remains unclear how to determine what foreign marks are sufficiently ‘famous’ to qualify” (373 F Supp 2d at 287). After reviewing various possible standards for a mark to qualify for the putative doctrine, the District Court Judge recognized that an “apparent consensus” existed as to what “at the very least . . . must be established in the relevant American market for a mark to qualify under the ‘well known’ or ‘famous’ mark doctrine”; and that “ITC [had] failed even to establish a triable issue” under that minimum standard (id. at 288). He also concluded that ITC lacked standing to press its claim under the Lanham Act for false advertising. The District Court therefore granted defendants summary judgment dismissing ITC’s complaint in its entirety, and cancelled ITC’s registration of the Bukhara mark, as defendants had requested in their counterclaim.

On March 28, 2007, the Second Circuit affirmed the District Court’s award of summary judgment on ITC’s infringement, unfair competition and false advertising claims under federal law. The court acknowledged, however, that “New York common law allows a plaintiff to sue for unfair competition where a property right or a commercial advantage has been misappropriated,” and stated that “in light of ITC’s abandonment of the Bukhara mark and dress for restaurants in the United States, its common law assertion of a property right or a commercial advantage in these designations based on their foreign use depends on whether New York recognizes the famous marks doctrine in the circumstances here at issue” (482 F3d at 165 [internal quotation marks and citation omitted]).

Citing Vaudable and Prunier, two “decades-old trial court decisions” that are “routinely identif[ied] ... as foundational in the development of the famous marks doctrine” (id. at 166), the court observed that

“[n] either the New York Court of Appeals nor any intermediate New York appellate court. . . has ever specifically adopted the views expressed in [these *476cases] to accord common law protection to the owners of famous marks. Moreover, no New York court has clearly delineated a standard for determining when a mark becomes sufficiently famous to warrant protection” (id. at 165-166).

Further, “recognition of the famous marks doctrine as part of New York common law is plainly an important policy issue for a state that plays a pivotal role in international commerce” (id. at 166). Finally, because “certification [would] conclusively resolve the question of whether ITC’s state unfair competition claim was, in fact, properly dismissed” (id. at 166-167), the Second Circuit certified two questions to us regarding the New York common-law claims.

II.

Certified Question No. 1

“Does New York common law permit the owner of a famous mark or trade dress to assert property rights therein by virtue of the owner’s prior use of the mark or dress in a foreign country?” (482 F3d at 167.)

The Second Circuit’s first certified question calls upon us to define property rights in the context of a common-law unfair competition claim grounded on a theory of misappropriation (see 482 F3d at 165). Thus, we must consider whether a famous foreign mark constitutes property or a commercial advantage protected from unfair competition under New York law.

We have long recognized two theories of common-law unfair competition: palming off and misappropriation (see Electrolux Corp. v Val-Worth, Inc., 6 NY2d 556, 567-568 [1959] [discussing the acceptance of these theories of unfair competition in New York courts and collecting cases]). “Palming off’—that is, the sale of the goods of one manufacturer as those of another2 —was the first theory of unfair competition endorsed by New York courts, and “has been extended ... to situations where the parties are not even in competition” (Electrolux, 6 NY2d at 567, *477citing Elgin Nat. Watch Co. v Illinois Watch Case Co., 179 US 665, 674 [1901]; Neva-Wet Corp. v Never Wet Processing Corp., 277 NY 163, 168 [1938]; Cornell Univ. v Messing Bakeries, 285 App Div 490 [3d Dept 1955], affd without op 309 NY 722 [1955] [three additional citations, all either Court of Appeals opinions or Appellate Division opinions affirmed without opinion by this Court, omitted]).

After the United States Supreme Court sanctioned the misappropriation theory of unfair competition in International News Service v Associated Press (248 US 215 [1918]), “[t]he principle that one may not misappropriate the results of the skill, expenditures and labors of a competitor has . . . often been implemented in [New York] courts” (Electrolux, 6 NY2d at 567, citing Germanow v Standard Unbreakable Watch Crystals, Inc., 283 NY 1, 18 [1940]; Fisher v Star Co., 231 NY 414, 428 [1921]; see also Meyers v Waverly Fabrics, Div. of Schumacher & Co., 65 NY2d 75, 79-80 [1985] [acknowledging defendant’s possible liability for “violation of the law of unfair competition by misrepresenting the (uncopyrighted) design, which it knew to be plaintiffs, as its own” (numerous citations omitted)]; National Basketball Assn. v Motorola, Inc., 105 F3d 841, 847-853 [2d Cir 1997] [accepting misappropriation as a theory under New York common law]). Indeed, the New York cases cited by the District Court and the Second Circuit as embodying the famous or well-known marks doctrine in New York common law—Prunier and Vaudable—were, in fact, decided wholly on misappropriation theories.

In Prunier, the plaintiff operated celebrated haute cuisine restaurants in Paris and London, but none in the United States. The defendants opened a restaurant in New York and

“appropriated to themselves the plaintiff’s name. . . . Indeed, it was admitted . . . that the name was intentionally selected because of plaintiffs well-known reputation and good will which has been built up as the result of decades of honest business effort.

“The defendants den[ied], however, that they ever held themselves out as being Prunier’s of Paris” (159 Misc at 553).

The court upheld the legal viability of an unfair competition claim by the plaintiff—even though the two restaurants were not in direct competition—so long as “plaintiff's] contention] *478that its reputation extends far beyond the territorial limits of Paris and London and that it has a substantial following in New York city and in other parts of the world” was proved (id. at 559 [emphasis added]).

In Vaudable, the plaintiffs restaurant in Paris—Maxim’s— was internationally famous “in the high-class restaurant field” (20 Misc 2d at 758-759). The defendants “appropriate^] the good will plaintiffs [had] created in the name Maxim’s as a restaurant,” and were therefore held liable for unfair competition based on misappropriation even though the parties were “not in present actual competition” (id. at 759). “The trend of the law, both statutory and decisional,” the court opined, “has been to extend the scope of the doctrine of unfair competition, whose basic principle is that commercial unfairness should be restrained whenever it appears that there has been a misappropriation, for the advantage of one person, of a property right belonging to another” (id. at 759 [citations omitted]; see also Roy Export Co. v Columbia Broadcasting Sys., 672 F2d 1095, 1105 [2d Cir 1982] [with decline of general federal common law after inception of misappropriation branch of unfair competition tort in International News Service, “the doctrine was developed by the states, New York in particular; there it has flourished in a variety of factual settings”]).

While expositors of the famous marks doctrine point to Prunier and Vaudable (see 5 McCarthy on Trademarks and Unfair Competition § 29:4 n 2 [4th ed 2007] [citing Prunier and Vaudable as “(p)erhaps the most famous examples” of the “well known” marks doctrine]), Prunier and Vaudable themselves in no way explain or proclaim—let alone rely on—any famous or well-known marks doctrine for their holdings. Instead, Prunier and Vaudable fit logically and squarely within our time-honored misappropriation theory, which prohibits a defendant from using a plaintiffs property right or commercial advantage—in Prunier and Vaudable, the goodwill attached to a famous name—to compete unfairly against the plaintiff in New York.

Under New York law, “[a]n unfair competition claim involving misappropriation usually concerns the taking and use of the plaintiffs property to compete against the plaintiffs own use of the same property” (Roy Export, 672 F2d at 1105). The term “commercial advantage” has been used interchangeably with “property” within the meaning of the misappropriation theory (see Flexitized, Inc. v National Flexitized Corp., 335 F2d 774, 781-782 [2d Cir 1964]). What Prunier and Vaudable stand for, *479then, is the proposition that for certain kinds of businesses (particularly cachet goods/services with highly mobile clienteles), goodwill can, and does, cross state and national boundary lines.

Accordingly, while we answer “Yes” to the first certified question, we are not thereby recognizing the famous or well-known marks doctrine, or any other new theory of liability under the New York law of unfair competition. Instead, we simply reaffirm that when a business, through renown in New York, possesses goodwill constituting property or a commercial advantage in this state, that goodwill is protected from misappropriation under New York unfair competition law. This is so whether the business is domestic or foreign.

III.

Certified Question No. 2

“How famous must a foreign mark or trade dress be to permit its owner to sue for unfair competition?” (482 F3d at 167.)

Protection from misappropriation of a famous foreign mark presupposes the existence of actual goodwill in New York (see e.g. Roy Export, 672 F2d at 1105 [misappropriation under New York law usually requires use in state of plaintiff s property or commercial advantage to compete against plaintiff]). If a foreign plaintiff has no goodwill in this state to appropriate, there can be no viable claim for unfair competition under a theory of misappropriation. At the very least, a plaintiffs mark, when used in New York, must call to mind its goodwill. Otherwise, a plaintiffs property right or commercial advantage based on the goodwill associated with its mark is not appropriated in this state when its unregistered mark is used here. Thus, at a minimum, consumers of the good or service provided under a certain mark by a defendant in New York must primarily associate the mark with the foreign plaintiff (cf. Allied Maintenance Corp. v Allied Mech. Trades, 42 NY2d 538, 545 [1977]).

Whether consumers of a defendant’s goods or services primarily associate such goods or services with those provided by a foreign plaintiff is an inquiry that will, of necessity, vary with the facts of each case. Accordingly, we cannot—and do not— provide an exhaustive list of the factors relevant to such an inquiry. That said, some factors that would be relevant include evidence that the defendant intentionally associated its goods with those of the foreign plaintiff in the minds of the public, such as public statements or advertising stating or implying a *480connection with the foreign plaintiff; direct evidence, such as consumer surveys, indicating that consumers of defendant’s goods or services believe them to be associated with the plaintiff; and evidence of actual overlap between customers of the New York defendant and the foreign plaintiff.

If the customers of a New York defendant do not identify a mark with the foreign plaintiff, then no use is being made of the plaintiffs goodwill, and no cause of action lies under New York common law for unfair competition. As a result, to prevail against defendants on an unfair competition theory under New York law, ITC would have to show first, as an independent prerequisite, that defendants appropriated (i.e., deliberately copied), ITC’s Bukhara mark or dress for their New York restaurants. If they successfully make this showing, plaintiffs would then have to establish that the relevant consumer market for New York’s Bukhara restaurant primarily associates the Bukhara mark or dress with those Bukhara restaurants owned and operated by ITC.

Accordingly, the certified questions should be answered in accordance with this opinion.

Chief Judge Kaye and Judges Ciparick, Graffeo, Smith, Pigott and Jones concur.

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified questions answered in accordance with the opinion herein.

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal presents two interesting questions in the law of intellectual property. It arises from a lawsuit brought by appellant, the United States Golf Association (“U.S.G.A.”), the governing body of amateur golf in the United States. The U.S.G.A. has developed a system for deriving the “handicaps” of amateur golfers, the core of which is a mathematical formula. Appellee Data-Max, Inc., d/b/a St. Andrews Systems, markets small computers that are programmed to calculate a golfer’s handicap based on the U.S.G.A. formula. The U.S.G.A. brought this suit to enjoin Data-Max from using its formula as the basis for its computerized handicap system.

The U.S.G.A. bases its claim for an injunction on two theories. The first is that the use of the U.S.G.A. formula by Data-Max amounts to a “false designation of origin,” and thus violates both section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and the New Jersey common law against unfair competition. The second theory is that the use of the formula is a “misappropriation” under the doctrine of International News Service v. Associated Press, 248 U.S. 215 (1918), as that doctrine has been adopted by New Jersey. The district court granted partial summary judgment to Data-Max, holding that the use of the U.S. G.A. handicap formula by Data-Max did not violate a cognizable interest of the U.S.G.A. and thus could not be enjoined. The court then entered a final judgment on that claim under Fed.R.Civ.P. 54(b).

We conclude that the U.S.G.A. handicap formula is “functional,” and thus that the U.S.G.A. cannot enjoin the use of the formula either under section 43(a) of the Lan-ham Act or under state law on the basis of any association in the public mind between the formula and the U.S.G.A. We also conclude that the U.S.G.A.’s claim does not fall within the “misappropriation” doctrine as it has been adopted by the State of New Jersey, largely because in using the formula Data-Max will not compete directly with *1030the U.S.G.A., and thus will not interfere with the economic incentives of the U.S. G.A. to maintain and update its handicap formula. Accordingly, we affirm the judgment of the district court.

I. FACTS AND PROCEDURAL HISTORY

The U.S.G.A. has been the governing body of amateur golf in the United States since 1894. It seeks to promote the game of golf by numerous means, including the establishment of rules and regulations for play, the promotion of amateur tournaments, and the regulation of its member golf clubs. Among the services that the U.S.G.A. provides to amateur golfers is a “handicap” formula that allows golfers of different skill levels to compete with each other on an equal basis. The U.S.G.A. handicap system takes account of the difficulty of the course on which a round is played and provides “safeguards” against the inflation of handicaps by excluding particularly bad holes and by counting only the best ten of a golfer’s last twenty rounds.1

The U.S.G.A. has developed the handicap formula over a period of eighty years. The first version of the system was published in 1897. A system based on a golfer’s best three scores, first devised in 1904, was adopted by the U.S.G.A. in 1911. In later years, the basic formula was altered by the addition of several features: a “course rating system” and “net score” (score adjusted for course difficulty) method of handicapping; a “current ability” approach, in which only a golfer’s most recent scores are counted; a system of “equitable stroke control” which disallows very high scores for individual holes; an upper limit on handicaps; and a “discounting” approach, in which a handicap is calculated based on a percentage, currently 96%, of the differentials between the player’s score and the course difficulty. A single, nationwide system was prescribed by the U.S.G.A. in 1958. The most recent change of significance took place on January 1, 1976.

Data-Max was incorporated in 1980 for the purpose of providing golfers, primarily those who do not belong to U.S.G.A.-member clubs, with “instant handicaps.” A computer program to calculate a handicap based on the U.S.G.A. formula is central to the products and services that Data-Max offers. Data-Max has sold or leased its computer to U.S.G.A.-member golf clubs, which use the computer in calculating handicaps.2 Data-Max also markets a subscription telephone handicap service, which enables a golfer to call in a new score and immediately receive an updated handicap, and a computer that enables a golfer to directly enter a new score and receive an updated handicap.3

The U.S.G.A. filed a three count complaint in the United States District Court for the District of New Jersey, seeking relief for service mark infringement under the Lanham Act, 15 U.S.C. §§ 1051 et seq.; for service mark infringement, unfair com*1031petition, and misappropriation under the common law of New Jersey; and for unfair competition under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).4 Data-Max responded with a seven-count counterclaim. The two primary counterclaims sought declaratory judgments on the two critical issues in the case: Data-Max’s right to use the U.S.G.A. formula in providing handicaps, and its right to advertise that use.

The district court considered these issues on Data-Max’s motion for summary judgment on the counterclaims. The district court granted the motion on the first counterclaim mentioned above. The court held that the U.S.G.A. formula was not a “salable product,” and thus not subject to “misappropriation” under the doctrine of International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918), as adopted by the courts of New Jersey, and that, because the formula was “functional,” it was not subject to protection under either federal or state law as a service mark. The court denied the summary judgment motion on the second counterclaim, holding that material issues of fact existed as to the “likelihood of confusion” if Data-Max continued to advertise that its handicaps were calculated by use of the U.S.G.A. formula. Having granted summary judgment on the first counterclaim, the court then entered a final judgment as to that claim under Rule 54(b). The U.S.G.A. appeals from that judgment.5

II. DISCUSSION

A. Contentions of the Parties

The U.S.G.A. advances two distinct legal theories to support its claim to an injunction. The first, which can be broadly characterized as “false designation of origin,” is based on a branch of the law of unfair competition closely related to trademark law. The U.S.G.A. asserts that Data-Max, by using the U.S.G.A. formula, is misleading the golfing public into thinking that the *1032U.S.G.A. endorses Data-Max’s products and services. The second theory is “misappropriation.” The U.S.G.A. argues that it has invested time, effort, and money in the creation of the formula, and therefore is entitled to protection against Data-Max’s using the formula as the basis of its own products and services. As we have noted, the district court rejected both of the U.S.G.A.’s theories.

On appeal, the U.S.G.A. argues that the district court erred in both its conclusions. On the first theory, the U.S.G.A. argues that, on summary judgment, the district court was obligated to presume that the public associated the formula with the U.S. G.A., since the evidence would support such a conclusion. In addressing the district court’s conclusion that the formula was functional, the U.S.G.A. argues that “even though a product or feature performs a function (i.e., is useful), it can nevertheless acquire secondary meaning,” and that other handicap formulas could easily be devised. From these two premises, the U.S.G.A. argues that the “functionality” doctrine was inapplicable. Alternatively, the U.S.G.A. argues that “the functionality doctrine ... covers only matters of physical or visual design.” On the misappropriation theory, the U.S.G.A. argues that the district court erred in concluding that the formula was not a “salable product,” that it is undisputed that Data-Max used the U.S.G.A.’s formula without alteration, and that the misappropriation doctrine protects the “inventor” of a product or service from competition from a rival who merely takes that product or service and sells it as its own. U.S.G.A. also asserts that the fact that the formula was in the “public domain” is irrelevant to the applicability of the misappropriation doctrine.

In response, Data-Max raises two basic arguments with respect to the false designation of origin question. The first is that the formula can have no secondary meaning because it is neither “an object in commerce” nor an “identification for an object in commerce.” Their second point is that the “use of the formula to compute does not exhibit it, and therefore [the formula] could not be a designation of origin,” (emphasis in original) and hence could not be a false designation of origin. On the misappropriation question, Data-Max makes three points. First, it argues that any use of the misappropriation doctrine to effect “the monopolization of an arithmetic formula” is preempted by the exclusion of such formulas from the federal patent statutes. Second, Data-Max argues that, since the formula is “functional,” it cannot acquire secondary meaning, and thus may not be misappropriated. Third, Data-Max argues that the efforts of the U.S.G.A. to publicize the formula over the years have made the formula part of the public domain, and thus not “salable.”

Although we reach the result advocated by Data-Max, our reasoning differs substantially from that advanced by the parties. On the false designation of origin point, our reasoning parallels that of the district court. On the misappropriation question, our analysis proceeds from the policies that define the scope of the misappropriation doctrine rather than from a focus on the “salability” of the formula or on any of the arguments offered in the briefs. We take these matters up in turn.

B. The “False Designation of Origin” Claim

Under both New Jersey law and federal law, the functional aspects of a product or service may not be protected under trademark law, or under the related unfair competition doctrines based on possible confusion as to the source of origin of the products or services. See Keene Corp. v. Paraflex Industries, Inc., 653 F.2d 822, 824 (3d Cir.1981); SK & F, Co. v. Premo Pharmaceutical Laboratories, Inc., 625 F.2d 1055, 1064-65 (3d Cir.1980).6 This *1033rule reflects a balancing of divergent social interests. The use of “non-functional” features of a product or service to identify its source is legally protected against imitation by competitors, because the value of such features in identifying the source of the goods or services outweighs the social interest in allowing competitors to copy them. Functional features, on the other hand, may not be legally protected methods of identification, regardless of their association with the original manufacturer, because their usefulness in identifying the source of the product or service is outweighed by the social interest in competition and improvements, which are advanced by giving competitors free access to those features.

The “functionality” of a feature of a product or service cannot be determined by the application of a mechanical test. Although various forms of the inquiry have been articulated,7 the essence of the question is whether a particular feature of a product or service is substantially related to its value as a product or service, i.e., if the feature is part of the “function” served, or whether the primary value of a particular feature is the identification of the provider. See In re Morton-Norwich *1034 Products, Inc., 671 F.2d 1332, 1337-40 (C.C.P.A.1982); Restatement of Torts § 742 comment a (1938). Several courts have noted that the key policy served by barring the use of functional features for identification is the policy favoring competition, and that the “functionality” inquiry must be addressed in light of this policy. See Morton-Norwich Products, 671 F.2d at 1339; Truck Equipment Service Co. v. Fruehauf Corp., 536 F.2d 1210, 1218 (8th Cir.), cert. denied, 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1976); Fotomat Corp. v. Cochran, 437 F.Supp. 1231, 1235 (D.Kan.1977).

The question of the “functionality” of the U.S.G.A. formula is not difficult. Its simple mathematical formula is the basic tool for deriving a handicap from a golfer’s raw scores; as such, the formula is central to the “function” performed by the Data-Max products and services. The U.S.G.A., relying on Ideal Toy Corp. v. Plawner Toy Manufacturing Corp., 685 F.2d 78 (3d Cir.1982), argues that the availability of numerous alternative methods of designing a particular feature of a product or service defeats the functionality of any single method. This argument proceeds from an overly broad reading of Plawner. Although other formulas could be developed to serve the function of handicapping golfers, a particular method of serving that function may be superior to others. The feature at issue in Plawner, the color scheme of the Rubik’s Cube, was held to be non-functional because the choice of colors was essentially arbitrary. If another aspect of the cube had been in issue, for instance, the internal design or the number of squares per side, a different result would probably have been reached. The manufacturer could not have asserted that these features were “non-functional” simply on the ground that other designs were conceivable because granting a monopoly over the “best” design of those features would have effectively excluded competition for the basic product — six-sided puzzles requiring that nine independent panels on each side be aligned in a single particular configuration.

When products or services of different providers are close substitutes for one another, the development of “industry standards” for certain aspects of the products or services will benefit consumers by facilitating comparability between and interchangeability among alternative products. The fact that any number of standards may be feasible and useful does not mean that the preferred standard is not “functional,” since use of that standard promotes comparability and interchangeability. The U.S.G.A. formula is like an “industry standard”: it allows the handicaps calculated by different providers to be compared with one another, much as the standard gauge of railroad track allows a locomotive of one company to run on the track of another. Allowing one provider to obtain exclusive rights in such a standard would enable it to exclude competitors desiring to provide the same product or service, particularly if the original provider, such as the U.S.G.A. in this case, starts with a virtual monopoly. To allow a monopoly over such a standard would defeat the policy of fostering competition that underlies the functionality doctrine.

The U.S.G.A. has raised no factual issues that would call into question a conclusion that the formula is “functional.” Accordingly, we hold that the district court’s entry of summary judgment on this aspect of the U.S.G.A.’s claim was appropriate.

C. The Misappropriation Claim

The doctrine of “misappropriation,” which is a distinct branch of the law of unfair competition, originated with the Supreme Court’s decision in International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918) (“I.N.S.”). 8 The doctrine has been applied *1035to a variety of situations in which the courts have sensed that one party was dealing “unfairly” with another, but which were not covered by the three established statutory systems protecting intellectual property: copyright, patent, and trademark/deception as to origin.9 The doctrine has also been the subject of considerable scholarly attention.10 Application of the misappropriation doctrine requires courts to contend with the basic problem of the law of intellectual property: balancing the rights of the creator of ideas or information to exploit them for commercial gain against the public’s right to free access to those ideas.11 Concomitantly, the dilemma posed by the doctrine can best be viewed as an attempt to provide the necessary incentives to the creators of intellectual property without unnecessarily restricting the public’s free access to information.12 The I. N.S. case illustrates the problem.

I.N.S., which was barred for political reasons by British censors from cabling its reports of the First World War to the United States, provided war coverage to the readers of its papers by buying early editions of A.P. papers and either copying or paraphrasing the A.P. reports in its own later editions. A.P. objected to this use of its stories, even though the stories were not copyrighted and even though A.P. had no proteetible interest in the underlying facts it was reporting. The Court came down on the side of protecting A.P.’s investment of “labor, skill, and money” in reporting the news, against I.N.S.’s right to take that information and use it in direct competition with A.P. The Court noted that without such protection, A.P. would have little incentive to invest in newsgath-ering.

The language of the I.N.S. opinion is very broad, and courts have struggled over *1036the years to define the limits of the doctrine. The Second Circuit, under the leadership of Judge Learned Hand, sought to limit I.N.S. to its facts, because of the broad implications of the doctrine for limiting the use of copying in commercial competition. See Cheney Brothers v. Doris Silk Corp., 35 F.2d 279 (2d Cir.1929) (dress designs not covered by I.N.S.), cert. denied, 281 U.S. 728, 50 S.Ct. 245, 74 L.Ed. 1145 (1930); Millinery Creators’ Guild, Inc. v. Federal Trade Commission, 109 F.2d 175 (2d cir.1940) (design of high-priced hats), aff'd, 312 U.S. 469, 61 S.Ct. 708, 85 L.Ed. 955 (1941); RCA Manufacturing Co. v. Whiteman, 114 F.2d 86 (2d Cir.) (rebroadcast of recordings), cert. denied, 311 U.S. 712, 61 S.Ct. 393, 85 L.Ed. 463 (1940) (cases cited in chronological order). The doctrine survived, however, in the context of factual situations very close to that of I.N.S. E.g., Associated Press v. KVOS, Inc., 80 F.2d 575 (9th Cir.1935) (radio broadcast of news taken from A.P. newspaper).

After the Supreme Court’s decision in Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1939), misappropriation became a question of state, rather than federal law. Although the I.N.S. doctrine was rejected by two federal courts interpreting the law of the state in which they were sitting, Addressograph-Multigraph Corp. v. American Expansion Bolt & Manufacturing Co., 124 F.2d 706 (7th Cir.1941) (Illinois law), cert. denied, 316 U.S. 682, 62 S.Ct. 1270, 86 L.Ed. 1755 (1942); Triangle Publications v. New England Newspaper Publishing Co., 46 F.Supp. 198 (D.Mass.1942) (Massachusetts law), some state courts took a more expansive view of the scope of the misappropriation doctrine in the post-fine era. E.g. Metropolitan Opera Association v. Wagner-Nichols Recorder Corp., 199 Misc. 786, 101 N.Y.S.2d 483 (1950), aff'd, 279 A.D. 632, 107 N.Y.S.2d 795 (1951).13

A federal aspect to the problem of the scope of the misappropriation doctrine was reintroduced by the Supreme Court’s decisions in Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), and Compeo Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964). The Court held that the decision by Congress to exclude certain types of intellectual property from protection under the patent and copyright laws was a policy decision that the societal interest in free access to those ideas outweighed the need to provide incentives for their production, and that state law doctrines which protected such intellectual property were preempted by that policy decision. Subsequent decisions of the Supreme Court have made clear, however, that the misappropriation doctrine has not been completely eviscerated. See Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974); Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973).14 The Court has not rejected the Sears-Compco doctrine, nor has it clearly defined where the power of the states to protect interests in intellectual property ends, and where the realm of federal preemption begins. The problem before us, therefore, is to apply the misappropriation doctrine as we believe the New Jersey courts would apply it, in light of the limitations which we believe federal preemption places on the permissible scope of state-law protection for intellectual property.15

*1037Two recent cases have grappled with these problems in a context analagous to this case. In Board of Trade v. Dow Jones & Co., 98 Ill.2d 109, 74 Ill.Dec. 582, 456 N.E.2d 84 (1983), the Illinois Supreme Court upheld an injunction that barred the Chicago Board of Trade (the “CBT”) from creating a stock index future contract based on the Dow Jones Industrial Average. The court based its decision on a number of factors: the fact that a significant part of the value of using the Dow Jones average is the association with Dow Jones; that “there are an infinite number of stock market indexes which could be devised” and that the CBT would be encouraged to develop a new index if it could not use Dow Jones’s; and that, although Dow Jones was not licensing anyone to use its index as the basis for a stock index future at the time the CBT sought to use it, Dow Jones was entitled to protection against “misappropriation” of the index for that use. Justice Simon, joined by two of his colleagues, dissented. The dissent concentrated on the absence of “direct competition” — competition between the creator and copier in the creator’s primary market — and argued that the majority’s result “broadly expanded the tort of misappropriation in, Illinois.” 98 Ill.2d at 124, 74 Ill.Dec. at 589, 456 N.E.2d at 91.

In Standard & Poor’s Corp. v. Commodity Exchange, Inc., 683 F.2d 704 (2d Cir.1982), the Second Circuit, applying New York law, upheld a preliminary injunction against the Commodities Exchange (“Co-mex”), which was using the Standard & Poor’s 500 (“S&P 500”) as the basis of its stock index futures contract. In Standard & Poor’s, the court relied on the “expenditure of time and money” in creating the index, and the competition between Comex and the Chicago Mercantile Exchange, which Standard & Poor’s had licensed to create a stock market index future based on the S&P 500. Judges Newman and Knapp concurred in sustaining the preliminary injunction, deferring to the district court's analysis of the “public interest” considerations in maintaining the status quo pending trial, but declined to address the “different, novel and close” legal questions posed by Comex’s use of the S&P 500 in competition with a licensee of Standard & Poor’s.16

This case is similar to the stock market index cases in a number of significant respects. As in the stock market index cases, the plaintiff here is seeking to exclude a rival from using a formula it has derived for commercial gain. The formulas in all three cases serve useful functions — in the stock market cases, the index is designed to track the general movement of the stock market; in this case, the formula is designed to indicate a golfer’s level of competence. None of these formulas, however, is unique to its function. As a result of their creators’ efforts, the respective formulas are generally accepted by the public as reliable means of performing their respective functions. Although the plaintiffs spend some time and effort updating their formulas, and also compute results by means of their formulas, the primary value of the results produced are not their inherent value in performing the underlying functions, but rather in the fact that they enable the public to discuss the underlying matters (i.e., the direction of the stock market or the ability of golfers) by means of a common set of terms.

In determining whether the misappropriation doctrine should be applied in this case, however, we must keep in mind the basic policies that underlie the doctrine and its limits. In I.N.S., the Court based its conclusion in substantial part on the fact *1038that I.N.S. was using information which A.P. had developed in direct competition with A.P. in its primary market, the sale of newspapers. I.N.S.’s activity, if not checked, could have destroyed A.P.’s incentive to create the information involved, and this would not only have harmed A.P. but also would have left the public without the information. If, on the other hand, I.N.S. had used the information in a different manner — for instance, in writing a story on American correspondents covering the war — the use of A.P.’s information would not have affected A.P.’s incentive to gather the information. Although A.P. might have been better off if it had exclusive rights to such derivative uses of its information, providing legal protection might also harm the public, since A.P. might never have produced the story about correspondents covering the war. Indirect competition of this sort — use of information in competition with the creator outside of its primary market — falls outside the scope of the misappropriation doctrine, since the public interest in free access outweighs the public interest in providing an additional incentive to the creator or gatherer of information.

The competition in this case is indirect. The U.S.G.A. is not in the business of selling handicaps to golfers, but is primarily interested in the promotion of the game of golf, and in its own position as the governing body of amateur golf. The handicap formula was developed to further these two goals. A member of a golf club who obtains his handicap through his club does not pay for that service, and the U.S.G.A. is not directly affected by the number of official handicaps the clubs calculate each year or by the number of golfers who obtain handicaps. Data-Max, on the other hand, is in the business of providing “instant handicaps” to golfers, either by selling or leasing its computers to golf clubs, or by providing handicaps directly to golfers who cannot obtain “instant handicaps” through their clubs. The U.S.G.A. does not object to the sale or lease of Data-Max’s computers, and does not attempt to provide the direct services which Data-Max provides to golfers. Thus, it is inconceivable that Data-Max’s business will interfere with the U.S.G.A.’s incentive to maintain or update the handicap formula.

The absence of direct competition with the producer’s primary use of the information was not viewed as dispositive by either the Illinois Supreme Court in Dow Jones or the Second Circuit in Standard & Poor’s. The court in Dow Jones concluded that direct competition was unnecessary, and the court in Standard & Poor’s found “direct competition” between S&P and Comex, even though the competition was outside S&P’s primary market. Neither of these cases makes a persuasive argument for dispensing with the “direct competition” requirement.17 Since direct competition *1039has generally been seen as necessary to a finding of misappropriation,18 and since it properly balances the competing concerns of providing incentives to producers of information while protecting free access, we believe that New Jersey would require direct competition in a misappropriation case, absent a substantial justification for making an exception.19

A possible justification for dispensing with the direct competition requirement in this case, which was also present in Dow Jones and Standard & Poor’s, is the fact that the information involved is so closely associated with the creator and has so little intrinsic value that the use of the information by the competitors is really an attempt to trade on the “good will” of the creator, and thus should be prohibited.20 The fact that the U.S.G.A. formula, like those involved in the stock market cases, is only one of a potentially large number of possible approaches to the underlying problem (quantifying the ability of golfers to enable them to compete with (and bet with) other golfers on an equitable basis) reduces the cost to the public of recognizing proprietary rights in the formula.21 The presence of so many alternatives also indicates that the primary value to Data-Max of using the U.S.G.A. formula is the public acceptance that the U.S.G.A. has built up for it over the years. This public acceptance could be characterized as part of the U.S.G.A.’s *1040“good will.”22 We must determine, therefore, whether the New Jersey courts would interpret the misappropriation doctrine in such a way as to dispense with the “direct competition” requirement on the facts of this case.

We conclude that, at least on the facts of this case, New Jersey would not dispense with the requirement of direct competition.23 The public acceptance of the U.S.G.A.’s handicap formula stems from the golfing public’s desire to have a uniform system of quantifying recent performances in a way that will allow equitable competition among golfers of differing abilities. The U.S.G.A., in furtherance of its role as the governing body of amateur golf, has provided such a system and, in the absence of a better system, the public has apparently accepted it. Under this state of affairs, the emergence of a single standard becomes largely a function of the need for uniformity. To require Data-Max to use a different formula would effectively destroy its ability to provide a handicapping service, since the U.S.G.A. formula is widely accepted by the golfing public. The purpose of a handicap is comparison between golfers, and handicaps based on different formulas cannot be readily compared.

Because the U.S.G.A. formula is the equivalent of an “industry standard” for the golfing public, preventing other handicap providers from using it would effectively give the U.S.G.A. a national monopoly on the golf handicapping business.24 Where such a monopoly is unnecessary to protect the basic incentive for the produc*1041tion of the idea or information involved, we do not believe that the creator’s interest in its idea or information justifies such an extensive restraint on competition. This case provides a good example of why such a restraint would harm the golfing public. Data-Max has expended time and creative energy in devising its own products and services. It has not only created the program used to calculate handicaps by computer, but has devised a handicapping service which improves on that provided by the U.S.G.A., at least to the extent that Data-Max provides a golfer with a fresh handicap faster than the U.S.G.A; does. In addition, the U.S.G.A. has not been completely deprived of the opportunity to be compensated for its “good will” in connection with the handicap formula. To the extent that the approval of the U.S.G.A. would enhance the value of “instant handicaps,” the U.S.G.A. has an opportunity, if it wishes to exercise it, of offering either Data-Max or other companies the use of the U.S.G.A. name in marketing its products and services.

III. CONCLUSION

We hold that the U.S.G.A. has no legally protectible interest in its formula, and thus is not entitled to an injunction in this case. The U.S.G.A. formula is a functional aspect of its handicap system, and thus may not be protected as an identifying characteristic under either federal or New Jersey law. The false designation of origin claims are therefore legally insufficient. The “misappropriation” claim is also legally insufficient, because the use of the U.S.G.A. formula by Data-Max is not in direct competition with the U.S.G.A. We do not believe that New Jersey would dispense with the requirement of direct competition without a substantial reason, and we do not find such a reason on the facts of this case.

Accordingly, the judgment of the district court will be affirmed.

SACK, Circuit Judge:

The parties, the district court, and amici have raised a wide variety of interesting legal and policy issues during the course of this litigation. We need not address most of them. We conclude that under principles that are well established in this Circuit, the plaintiffs’ claim against the defendant for “hot news” misappropriation of the plaintiff financial firms’ recommendations to clients and prospective clients as to trading in corporate securities is preempted by federal copyright law. Based upon principles explained and applied in National Basketball Association v. Motorola, Inc., 105 F.3d 841 (2d Cir.1997) (sometimes hereinafter “NBA ”), we conclude that because the plaintiffs’ claim falls within the “general scope” of copyright, 17 U.S.C. § 106, and involves the type of works protected by the Copyright Act, 17 U.S.C. §§ 102 and 103, and because the defendant’s acts at issue do not meet the exceptions for a “hot news” misappropriation claim as recognized by NBA, the claim is preempted. We therefore reverse the judgment of the district court with respect to that claim.

The plaintiffs-appellees — Barclays Capital Inc. (“Barclays”);1 Merrill Lynch, Pierce, Fenner & Smith Inc. (“Merrill Lynch”); and Morgan Stanley & Co. Inc. (“Morgan Stanley”) (collectively, the “Firms”) — are major financial institutions that, among many other things, provide securities brokerage services to members of the public. Largely in that connection, they engage in extensive research about the business and prospects of publicly traded companies, the securities of those *879companies, and the industries in which those companies are engaged. The results of the research are summarized by the Firms in reports, which customarily contain recommendations as to the wisdom of purchasing, holding, or selling securities of the subject companies. Although the recommendations and the research underlying them in the reports are inextricably related, it is the alleged misappropriation of the recommendations, each typically contained in a single sentence, that is at the heart of the district court’s decision2 and the appeal here.

Each morning before the principal U.S. securities markets open, each Firm circulates its reports and recommendations for that day to clients and prospective clients. The recipients thus gain an informational advantage over non-recipients with respect to possible trading in the securities of the subject companies both by learning before the world at large does the contents of the reports and, crucially for present purposes, the fact that the recommendations are being made by the Firm. The existence of that fact alone is likely to result in purchases or sales of the securities in question by client and non-client alike, and a corresponding short-term increase or decrease in the securities’ market prices. The Firms and similar businesses, under their historic and present business models, profit from the preparation and circulation of the reports and recommendations principally insofar as they earn brokerage commissions when a recipient of a report and recommendation turns to the firm to execute a trade in the shares of the company being reported upon.

The defendant-appellant is the proprietor of a news service distributed electronically, for a price, to subscribers. In recent years and by various means, the defendant has obtained information about the Firms’ recommendations before the Firms have purposely made them available to the general public and before exchanges for trading in those shares open for the day. Doing so tends' to remove the informational and attendant trading advantage of the Firms’ clients and prospective clients who are authorized recipients of the reports and recommendations. The recipients of the information are, in turn, less likely to buy or sell the securities using the brokerage services of the reporting and recommending Firms, thereby reducing the incentive for the Firms to create such reports and recommendations in the first place. This, the Firms assert, will destroy their business models and have a severely deleterious impact on their ability to engage in further research and to create further reports and recommendations.

*880In an attempt to preserve their business models, the Firms have increasingly taken measures to seek to prevent or curtail such pre-market — and therefore, from their point of view, premature — public dissemination of their recommendations. As the district court reported in Barclays Capital Inc. v. Theflyonthewall.com (“Fly I”), 700 F.Supp.2d 310 (S.D.N.Y.2010), the Firms have, for example: “communicated to their employees that the unauthorized dissemination of their equity research or its contents is a breach of loyalty to the Firm, undermines the Firm’s creation of revenue, and can result in discipline, including firing,” id. at 319-20; included in their licensing agreements with third-party distributors and in the reports themselves provisions prohibiting redistribution of their content, id. at 320; adopted policies limiting public dissemination of the reports and the information they contain, id.; and employed emerging Internet technology by which the Firms can seek to find the source of such “leaks” and to “plug” them, id. It is not clear from the record the extent to which these efforts are currently effective, but no concern has been expressed to us as to their legality or legitimacy.

The Firms instituted this litigation as part of the same endeavor. The first of their two sets of claims against the defendant sounds in copyright and is based on allegations of verbatim copying and dissemination of portions of the Firms’ reports by the defendant. The Firms have been entirely successful on these copyright claims. See Fly /, 700 F.Supp.2d at 328 (“Fly no longer disputes ... that it infringed the copyrights in [seventeen of the Firms’ reports].... [J]udgment shall [therefore] be entered for the [Firms] on their claims of copyright infringement.”). Although the extent to which the Firms’ success on the copyright claims has alleviated their overall concerns is not clear, their victory on these claims is secure: Fly has not challenged the resulting injunction on appeal. Appellant’s Br. at 61.

What remains before us, then, is the second set of claims by the Firms, alleging that Fly’s early republication of the securities recommendations that the Firms create — their “hot news” — is tortious under the New York State law of misappropriation. The district court agreed and granted carefully measured injunctive relief. It is to the misappropriation cause of action that this appeal and therefore this opinion is devoted.

BACKGROUND

We find little to take issue with in the district court’s careful findings of facts, to which we must in any event defer. We therefore borrow freely from them.3

The Firms and their Research Reports

The Firms are multinational financial entities that provide a variety of asset management, sales and trading, investment banking, and brokerage services to institutional investors, businesses of various sizes, and individuals. Among their many activities, the Firms compile research reports on specific companies whose securities are publicly traded, on industries, and on economic conditions generally. They disseminate such reports and accompanying trading recommendations to clients, such as hedge funds, private equity firms, pension funds, endowments, and individual investors. The reports, which vary in format, range from a single page to hundreds of *881pages in length. They typically include data analysis, qualitative discussion, and the recommendation. In the process of producing and disseminating the reports, the Firms employ hundreds of research analysts and spend hundreds of millions of dollars annually.

In preparing a company report, an analyst will gather data related to its business, and may visit its physical facilities, converse with industry experts or company executives, and construct financial or operational models. The analyst then uses that information in light of his or her expertise, experience, and judgment to arrive at formal projections and recommendations regarding the value of the company’s securities.

This litigation concerns the trading “Recommendations,” a term which the district court defined as “actionable reports,” i.e., Firm research reports “likely to spur any investor into making an immediate trading decision[4] Recommendations upgrade or downgrade a security; begin research coverage of a company’s security (an event known as an ‘initiation’); or predict a change in the security’s target price.” Fly I, 700 F.Supp.2d at 316. The better known and more respected an analyst is, the more likely that a recommendation for which he or she is primarily responsible will significantly affect the market price of a security.

Most Recommendations are issued sometime between midnight and 7 a.m. Eastern Time, allowing stock purchases to be made on the market based on the reports and Recommendations upon the market opening at 9:30 a.m.5 Timely receipt of a Recommendation affords an investor the opportunity to execute a trade in the subject security before the market has absorbed and responded to it.

The Firms typically provide complimentary copies of the reports and Recommendations to their institutional and individual clients using a variety of methods.6 The *882Firms then conduct an orchestrated sales campaign in which members of their sales forces contact the clients the Firms think most likely to execute a trade based upon the Recommendation, with the understanding that continued receipt of reports and Recommendations may be made contingent on the generation of a certain level of trading commissions paid to the Firm.7

The Firms contend that clients are much more likely to place a trade with a Firm if they learn of the Recommendation directly from that Firm rather than elsewhere, and estimate that more than sixty percent of all trades result from Firm solicitations, including those highlighting Recommendations. It is from the commissions on those trades that Firms profit from the creation and dissemination of their reports and Recommendations. They assert that the timely, exclusive delivery of research and Recommendations therefore is a key to what they frequently refer to as their “business model.”8 Theflyonthewall. com

The defendant-appellant Theflyonthewall.com, Inc. (“Fly”) is, among other things, a news “aggregator.” For present purposes, “[a]n aggregator is a website that collects headlines and snippets of news stories from other websites. Exam-pies include Google News and the Huffing-ton Post.” Tony Rogers, “Aggregator,” About.com Guide, available at http:// journalism.about.com/od/journalism glossary/g/aggregatordefinition.htm (latest visit Jan. 4, 2011).

Understanding that investors not authorized by the Firms to receive the reports and Recommendations are interested in and willing to pay for early access to the information contained in them — especially the Recommendations, which are particularly likely to affect securities prices — several aggregators compile securities-firm recommendations, including the Recommendations of the Firms, sometimes with the associated reports or summaries thereof, and timely provide the information to their own subscribers for a fee. Fly is one such company. It employs twenty-eight persons, about half of whom are devoted to content production. It does not itself provide brokerage, trading, or investment-advisory services beyond supplying that information.

Typical clients of the Firms are hedge funds, private equity firms, pension funds, endowments, and wealthy individual investors. By contrast, Fly’s subscribers are predominately individual investors, institutional investors, brokers, and day traders. *883These customers purchase one of three content packages on Fly’s website, paying between $25 and $50 monthly for unlimited access to the site.

In addition to maintaining its website, Fly distributes its content through third-party distributors and trading platforms, including some, such as Bloomberg and Thomson Reuters, that also separately provide authorized dissemination of the Firms’ Recommendations. Fly has about 3,300 direct subscribers through its website, and another 2,000 subscribers who use third-party platforms to receive the service.

Fly characterizes itself as a source for breaking financial news, claiming to be the “fastest news feed on the web.” Fly I, 700 F.Supp.2d at 322 (internal quotation marks omitted). It advertises that its “quick to the point news is a valuable resource for any investment decision.” Id. Fly has emphasized its access to analyst research, saying that its newsfeed is a “one-stop solution for accessing analyst comments,” and brags that it posts “breaking analyst comments as they are being disseminated by Wall Street trading desks, consistently beating the news wires.” Id. at 322-23 (internal quotation marks omitted).

The cornerstone of Fly’s offerings is its online newsfeed, which it continually updates between 5:00 a.m. and 7:00 p.m. during days on which the New York Stock Exchange is open. The newsfeed typically streams more than 600 headlines a day in ten different categories, including “hot stocks,” “rumors,” “technical analysis,” and “earnings.” One such category is “recommendations.” There, Fly posts the recommendations (but not the underlying research reports or supporting analysis) produced by sixty-five investment firms’ analysts, including those at the plaintiff Firms. A typical Recommendation headline from 2009, for example, reads “EQIX: Equinox initiated with a Buy at BofA/Merrill. Target $110.” Id. at 323.

Fly’s headlines, including those in the “recommendations” category, are searchable and sortable. Users can also subscribe to receive automated e-mail, pop-up, or audio alerts whenever Fly posts content relevant to preselected companies’ securities.

Fly publishes most of its recommendation headlines before the New York Stock Exchange opens each business day at 9:30 a.m. Fly estimates that the Firms’ Recommendation headlines currently comprise approximately 2.5% of Fly’s total content, down from 7% in 2005.

According to Fly, over time it has changed the way in which it obtains information about recommendations. Some investment firms, such as Wells Fargo’s investment services, will send Fly research reports directly as soon as they are released. Others, including the plaintiff Firms, do not. Until 2005, for recommendations of firms that do not, including the plaintiff Firms, Fly relied on employees at the investment firms (without the firms’ authorization)' to e-mail the research reports to Fly as they were released. Fly staff would summarize a recommendation as a headline (e.g., “EQIX initiated with a Buy at BofA/Merrill. Target $110.”). Sometimes Fly would include in a published item an extended passage taken verbatim from the underlying report.

Fly maintains that because of threats of litigation in 2005, it no longer obtains recommendations directly from such investment firms. Instead, it gathers them using a combination of other news outlets, chat rooms, “blast IMs” sent by people in the investment community to hundreds of recipients, and conversations with traders, money managers, and its other contacts *884involved in the securities markets.9 Fly also represents that it no longer publishes excerpts from the research reports themselves, and now disseminates only the Recommendations, typically summarizing only the rating and price target for a particular stock.

The Firms’ Response to The Threat Posed by Fly and Other Aggregators

Because the value of the reports and Recommendations to an investor with early access to a Recommendation is in significant part derived from the informational advantage an early recipient may have over others in the marketplace, most of the trading the Firms generate based on their reports and Recommendations occurs in the initial hours of trading after the principal U.S. securities markets have opened. Such sales activity typically slackens by midday. The Firms’ ability to generate revenue from the reports and Recommendations therefore directly relates to the informational advantage they can provide to their clients. This in turn is related to the Firms’ ability to control the distribution of the reports and Recommendations so that the Firms’ clients have access to and can take action on the reports and Recommendations before the general public can.10

The Firms have employed a variety of measures in an attempt to stem the early dissemination of Recommendations to non-clients. Most of them have either been instituted or augmented relatively recently in response to the increasing availability of Recommendations from Fly and competing aggregators and news services. The Firms describe these steps as follows:

The Firms have made a “very substantial and costly effort to study the unauthorized dissemination of their research reports and ... to plug the leaks they have found.” Merrill Lynch, for example, has: (a) worked with third-party vendors to limit access to Merrill Lynch clients; (b) employed an internal security program to detect breaches of security; (c) investigated Merrill Lynch employees, including a review of cell phones, for leaks to third parties; (d) internalized Merrill Lynch’s email subscription system; (e) identified and blacklisted websites that seek to post links to Merrill Lynch content; and (f) created unique signature URLs when links to research are sent to clients so that clients’ usage can be monitored and abuse tracked, [citation to record] (describing breach control as an “all-consuming task”). Barclays and Morgan Stanley have undertaken comparable measures to protect their research.

Each Firm has a restrictive media and communications policy intended to preserve the time-sensitive value of Recommendations for their clients. The policies provide that any disclosure of equity research to the press occurs only after expiration of a prescribed period of time, and even then it is limited to entities that use the research as part of contextual news reporting and analysis.

Appellees’ Br. at 13 (citations omitted). As outlined above, the district court also cataloged these efforts, emphasizing their *885increasing intensity “in recent years.”11 It is not clear from the record, however, the extent to which these efforts increased in response to the actions of Fly and others similarly disseminating the Recommendations on Internet-borne services, nor does the record disclose how successful the measures have been. Fly has not challenged the legality of the Firms’ anti-dissemination efforts in these proceedings.12

The Complaint and Pre-Trial District Court Proceedings

In 2004, the Firms identified Fly as one of several entities systematically publishing the Recommendations without the Firms’ permission. Others doing the same included larger and better-known news outlets with far broader audiences, such as Bloomberg, Dow Jones, and Thomson Reuters.13 All of them regularly post short headlines reporting Recommendations soon after they become available.14 The Firms nonetheless focused their legal actions in this regard on Fly.

In March and April 2005, the Firms complained to Fly that its publication of the Firms’ Recommendations in February and March of that year infringed the Firms’ copyrights and was tortious under New York State’s “hot news” misappropriation doctrine. The Firms demanded that Fly cease and desist. Fly’s counsel responded in April and May 2005, representing that Fly had altered its reporting practices so that it no longer obtained the Recommendations from research reports sent by employees of the Firms, instead gathering the information from independent, public sources. Fly continued posting the Firms’ Recommendations. On June 26, 2006, the Firms filed this suit naming Fly as the sole defendant.

The Firms assert two causes of action in their complaint: copyright infringement based on Fly’s extensive excerpting of 17 research reports released in February and March 2005, and “hot news” misappropriation based on Fly’s continual electronic publication of the Firms’ Recommendations. The gravamen of the latter claim is that the aggregate widespread, unauthorized reporting of Recommendations by Fly and other financial news providers— including better known, better financed, more broadly accessed outlets — has threatened the viability of the Firms’ equity research operations. The Firms allege *886that this unauthorized distribution allows clients and prospective clients to learn of Recommendations from sources other than the Firms before the Firms’ sales staff can reach out to them to solicit their business, thereby reducing the ability of research to drive commission revenue. This, they assert, seriously threatens their ability to justify the expense of maintaining their extensive research operations.

On August 16, 2006, Fly answered, raising several affirmative defenses, including “fair use” and protections purportedly afforded to it and its dissemination of news by the First Amendment.15

On May 18, 2009, after completion of discovery, the Firms and Fly cross-moved for summary judgement. The district court (Denise L. Cote, Judge) denied the summary judgment motions on November 6, 2009. The Firms then waived their claims for actual damages, and the court set the case for a bench trial.

The Trial and The District Court Decision

In a joint pre-trial order dated February 12, 2010, the parties stipulated to, among other things, the district court’s jurisdiction and the identification of the issues presented for trial. Joint Pre-Trial Order (Dkt. No. 167), Barclays Capital Inc. v. Theflyonthewall.com, No. 06-cv-4908 (S.D.N.Y. April 21, 2010) (the “Joint Pretrial Order”). The parties also agreed that:

The following affirmative defenses previously asserted by Defendant are not to be tried:

Defendant’s publication of daily news from firms in the financial industry, including Plaintiffs, is constitutionally protected by the First Amendment to the U.S. Constitution.

Joint Pre-trial Order at 5 (emphasis in original). The district court read this to mean that Fly had waived any First Amendment defenses to the Firms’ “hot news” misappropriation claim. See Bar-clays Capital Inc. v. Theflyonthewall.com (“Fly II”), 700 F.Supp.2d 310, 352-54 (S.D.N.Y.2010) (Opinion and Order Denying Stay).16

Fly also abandoned the “fair use” copyright-infringement defense, thereby effectively conceding liability on the copyright claim. An injunction “which restrains Fly from further infringement of ‘any portion of the copyrighted elements of any research reports’ generated by Barclays Capital or Morgan Stanley,” Fly I, 700 F.Supp.2d at 331, was entered and, so far as we know, remains in effect.

In the pre-trial order, the Firms contended that they satisfied all five “elements” of the tort purportedly identified in NBA, 105 F.3d at 845, although the Firms did not explicitly refer to that case. Joint Pre-Trial Order at 3. Fly appeared to concede that the Firms generate their *887Recommendations at great expense and that the Recommendations are time-sensitive, but disputed the other three “elements” of the misappropriation claim. Id. at 4.

At a four-day bench trial in early March of last year, the witnesses for the plaintiffs were primarily Firm executives responsible for or familiar with a Firm’s research activities. The defendant called, inter alios, Fly employees to testify, including Fly’s President and majority owner, Ron Etergino. Inasmuch as Fly had effectively conceded liability for copyright infringement, the primary issues at trial were (1) the scope of remedies for copyright infringement, (2) whether Fly was liable for “hot news” misappropriation and, if so, (3) the appropriate remedy.

On March 18, 2010, the district court issued its Opinion and Order, deciding for the plaintiffs on both the copyright-infringement and the “hot news” misappropriation claims. It awarded the plaintiffs statutory damages and attorney’s fees17 related to the copyright infringement claim. As part of its judgment in favor of the plaintiffs on the misappropriation claim, the court entered an order, inter alia, enjoining Fly from reporting Recommendations for a period ranging from thirty minutes to several hours after they are released by the plaintiffs. See Fly I, 700 F.Supp.2d at 348; Permanent Injunction (Dkt. No 138), Barclays Capital v. Theflyonthewall.com, No. 06-cv-4908 (S.D.N.Y. March 18, 2010) (the “Permanent Injunction”).

Relying upon one of two — or arguably three — iterations of NBA’s multi-factor “test,” the district court concluded that for a misappropriation claim under New York law to survive federal copyright law preemption, and for the plaintiff to succeed on the claim, the plaintiff is required to demonstrate that:

(i) [it] generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendant’s use of the information constitutes free riding on the plaintiffs efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product'or service that its existence or quality would be substantially threatened.

Fly I, 700 F.Supp.2d at 334-35 (quoting NBA, 105 F.3d at 845).18 The district court concluded that the first two “elements” — the cost of generating information and time-sensitivity — were not disputed by Fly and in any case were easily met. Id. at 335-36.

The district court decided with respect to the third factor, “free riding,” that, “[i]n essence, [it] exists where a defendant invests little in order to profit from information generated or collected by the plaintiff at great cost.” Id. at 336. According to the court, “Fly does no equity research of its own, nor does it undertake any original reporting or analysis.” Id. at 336.

In deciding in the Firms’ favor on this issue, the district court rejected Fly’s ar*888gument that its efforts in the collection, aggregation, and dissemination of information were sufficient to avoid a finding of free-riding, on the ground that efforts contributed nothing to the actual Recommendations that Fly provided to its subscribers. Id. at 336-37. The court also disagreed with Fly’s argument that its gathering of the Recommendations from public sources renders that information freely available for all: “[T]he fact that others also engage in unlawful behavior does not excuse a party’s own illegal conduct.” Id. at 337.

In concluding that the fourth factor, direct competition, was present, the district court relied on its finding that both Fly and the Firms were engaged in “disseminating Recommendations to investors for their use in making investment decisions,” that production and distribution of the reports was among the Firms’ “primary businesses,” and that the companies used similar distribution channels. Id. at 339-40. The court also thought significant Fly’s then-recent attempts to link its subscribers to discount brokerage services, which in the district court’s view had the potential to further draw commission revenue away from the Firms.

The district court rejected Fly’s contention that our decision in NBA required the court to find “head-to-head competition in a primary market,” concluding that neither Fly’s lack of brokerage and investment-advisory services nor its role as a news aggregator was inconsistent with a finding of direct competition. Id. at 340. The court appeared to conclude that Fly’s other activities were immaterial, so long as Fly, like the Firms, was engaged in the business of disseminating Recommendations.

Finally, the district court concluded that the fifth factor, sufficiently reduced economic incentives, was present. The court found that “common sense and the circumstantial evidence about the plaintiffs’ business model make the Firms’ contentions about [their] reduced incentives utterly credible.” Id. at 342. The Finns had asserted that they had been forced to cut their analyst staffs and budgets significantly during the previous five years, in significant measure although by no means exclusively because of competition from unauthorized redistributions of their Recommendations. They acknowledged, as did the court, that there were unrelated substantial causes for the contraction during this period, including the then-recent recession and accompanying stock-market collapse, and the April 2003 Global Research Analyst Settlement.19

Fly sought to portray the Firms’ evidence of reduced economic incentives, which was based almost entirely on the testimony of the Firms’ own research executives, as speculative and self-serving. The district court concluded to the contrary (1) that the executives’ testimony was credible despite their employment by the Firms, (2) that the Firms did not need to demonstrate actual harm, but rather merely show that harm would occur if Fly and others were allowed to continue their conduct, and (3) that the precise impact of the recent recession and the Global Research Analyst Settlement was irrelevant, because the mere showing that Fly and *889others like it significantly affected the Firms’ incentives was sufficient to establish the fifth factor, even if other events also contributed to the reduction in incentives. Id. at 342-43.

Having concluded that the Firms had established the tort of “hot news” misappropriation, the district court entered a permanent injunction barring Fly from reporting a Recommendation until either (a) half an hour after the market opens, if the report containing the recommendation was released before 9:30 a.m., or (b) two hours after release, if the report was released after 9:30 a.m.20 This time period represented roughly the midpoint between what Fly and the Firms, respectively, requested.21

Perhaps because Fly purported to waive its First Amendment defenses, the district court’s opinion contains no explicit discussion of First Amendment doctrine beyond the court’s reference, in consideration of the propriety of injunctive relief, to “public policy considerations,” and the balancing of “the public interest in unrestrained access to information.” Id. at 344. Similarly, although in the court’s thorough recitation of the history of the law of “hot news” misappropriation, it explained in some detail the role of Copyright Act preemption of state tort law, it did not expressly consider whether “hot news” misappropriation was preempted by federal copyright law in this case. Instead, it adopted as determinative NBA’s ruling that a narrow form of the “hot news” misappropriation tort survives preemption, and it applied language from that decision indicating the tort’s limitations by virtue of preemption doctrine.

Postr-Trial Procedural History

Fly filed a notice of appeal on April 9, 2010. Four days later, it moved before the district court to stay or modify the injunction pending that appeal. In support of its motion, Fly argued (1) that it was likely to succeed on the merits on appeal, specifically with regard to the direct competition and reduced incentive elements of the misappropriation claim; (2) that it would suffer irreparable harm from the operation of the injunction as customers cancelled their subscriptions; and (3) that the injunction’s curtailment of First Amendment protected speech required a finding of irreparable harm. On May 7, 2010, the district court denied Fly’s motion on the grounds (1) that Fly was not likely to succeed on the *890merits of its appeal; (2) that Fly had shown evidence of only two instances of customers cancelling their subscriptions because of the injunction; and (3) that Fly had waived its First Amendment arguments prior to trial. See Fly II, 700 F.Supp.2d at 349-56.

Fly thereupon moved in this Court for a stay of the injunction and an expedited appeal. On May 19, 2010, a panel of this Court granted the motion.

On appeal, Fly argues principally that (1) the district court erred in finding that the plaintiffs established “hot news” misappropriation under New York law, specifically in that the plaintiffs failed to prove time-sensitivity, free-riding, direct competition, and reduced incentives; (2) that the district court’s injunction violates Fly’s free-speech rights under the First Amendment; (3) that the district court’s finding of “hot news” misappropriation violates the Copyright Clause of the Constitution and the Copyright Act; (4) that the district court failed to apply the proper standard in granting injunctive relief; and (5) that the injunction is unreasonably overbroad.22

DISCUSSION

I. Standard of Review

“When reviewing a judgment following a bench trial in the district court, we review the court’s findings of fact for clear error and its conclusions of law de novo.” Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93, 96 (2d Cir.), cert, denied, — U.S.-, 131 S.Ct. 647,178 L.Ed.2d 513 (2010).

II. Viability of the “Hot News” Misappropriation Tort

Amici Google, Inc. and Twitter, Inc., referring to the “hot news” misappropriation tort as an “end-run” around the Constitution’s Copyright Clause and Supreme Court precedent, and arguing that their position is supported by “[ijmportant public policy concerns,” urge us to “repudiate the tort.” Brief for Google, Inc. and Twitter, Inc. as Amici Curiae Supporting Reversal at 3, Barclays Capital Inc. v. Theflyonthewall.com, No. 10-1372-cv (2d Cir. June 22, 2010).

We need not address the viability vel non of a “hot news” misappropriation tort under New York law. Were we to do so, though, plainly we would be bound by the conclusion of the previous Second Circuit panel in NBA that the tort survives. See, e.g., United States v. Jass, 569 F.3d 47, 58 (2d Cir.2009) (explaining the binding nature of one panel opinion on a subsequent panel of the same circuit); Meacham v. Knolls Atomic Power Lab., 461 F.3d 134, 141 (2d Cir.2006) (similar), rev’d on other grounds, 554 U.S. 84, 128 S.Ct. 2395, 171 L.Ed.2d 283 (2008). We are therefore without the authority to “repudiate” that view.

Were we indeed called upon to consider the continued viability of the tort under New York law, perhaps we would certify that issue to the New York Court of Appeals. The issue we address, however, is federal preemption. As a federal court, we answer that question ourselves.

III.Copyright Act Preemption

A. National Basketball Association v. Motorola, Inc.

National Basketball Association v. Motorola, Inc., 105 F.3d 841 (2d Cir.1997), *891appears to be the only judicial decision— surely the only decision binding upon us— that addresses directly the preemption issue raised in this appeal.

There, defendant Motorola, Inc. produced and sold (or otherwise provided) to members of the public a telephonic pager called SportsTrax. Motorola’s co-defendant, STATS, Inc., supplied statistical information about National Basketball Association (“NBA”) professional basketball games. The information was transmitted to SportsTrax pagers owned or leased by Motorola and STATS customers roughly simultaneously with the playing of the games. NBA, 105 F.3d at 843. The information included “(i) the teams playing; (ii) score changes; (iii) the team in possession of the ball; (iv) whether the team is in the free-throw bonus; (v) the quarter of the game; and (vi) time remaining in the quarter.” Id. at 844.

The information [was] updated every two to three minutes, with more frequent updates near the end of the first half and the end of the game. There [was] a lag of approximately two or three minutes between events in the game itself and when the information appeared] on the pager screen.

Id.

SportsTrax gathered the information for the service by employing persons who would watch the games on television or listen to accounts of them on the radio and supply the information to STATS’s host computer. The computer compiled, analyzed, and formatted the data for retransmission. The information was then sent to FM radio stations which retransmitted them to the subscribers’ individual SportsTrax pagers.23 Id.

The NBA itself also publicly disseminated similar, and therefore to some extent competitive, information. As Judge Winter wrote for the NBA panel:

[T]he NBA does provide, or will shortly do so, information like that available through SportsTrax. It now offers a service called “Gamestats” that provides official play-by-play game sheets and half-time and final box scores within each arena. It also provides such information to the media in each arena. In the future, the NBA plans to enhance Gamestats so that it will be networked between the various arenas and will support a pager product analogous to SportsTrax. SportsTrax will of course directly compete with an enhanced Gamestats.

Id. at 853.

The district court whose decision was on appeal in NBA had found for the plaintiff on its New York-law “hot news” misappropriation claim arising out of the defendants’ taking, redistributing, and profiting from the facts generated by the NBA in the course of the playing of NBA games. The district court therefore had entered a permanent injunction against the defendants, but stayed that injunction pending appeal. Id.

1. NBA Preemption Analysis. 24

a. Copyright Act

The NBA panel began its analysis by noting that prior to the 1976 amendments to the Copyright Act, the Act contained no *892express provisions as to the circumstances under which the federal copyright law preempted state law. The 1976 Amendments changed that.

Title 17 U.S.C. § 301, enacted in 1976, sets forth a two-part test to determine whether a state-law claim is preempted by the Copyright Act, with a further “extra elements” exception we discuss below. Such a claim is preempted (i) if it seeks to vindicate “legal or equitable rights that are equivalent” to one of the bundle of exclusive rights already protected by copyright law under 17 U.S.C. § 106 — -the “general scope requirement”; and (ii) if the work in question is of the type of works protected by the Copyright Act under 17 U.S.C. §§ 102 and 108 — the “subject matter requirement.”25 NBA, 105 F.3d at 848 (quoting 17 U.S.C. § 301).

The NBA panel observed that “[t]he subject matter requirement” — the second factor in a preemption analysis — “is met when the work of authorship being copied or misappropriated 'falls within the ambit of copyright protection.’ ” Id. at 849 (quoting Harper & Row, Inc. v. Nation Enters., 723 F.2d 195, 200 (2nd Cir.1983) (brackets omitted), rev’d on other grounds, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985)). In deciding whether a state-law claim is preempted by the Copyright Act, then, it is not determinative that the plaintiff seeks redress with respect to a defendant’s alleged misappropriation of uncopyrightable material — e.g., facts — contained in a copyrightable work. “Copyrightable material often contains uncopyrightable elements within it, but Section 301 preemption bars state law misappropriation claims with respect to uncopyrightable as well as copyrightable elements,” if the work as a whole satisfies the subject matter requirement.26 NBA, 105 *893F.3d at 849; see also id. at 850 (quoting ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1453 (7th Cir.1996)).

In NBA, facts about what transpired during broadcasted NBA basketball games thus fell within the subject matter of copyright for the purpose of the court’s preemption analysis, even though the games themselves were not copyrightable. Id. at 848^49 (“Although game broadcasts are copyrightable while the underlying games are not, the Copyright Act should not be read to distinguish between the two when analyzing the preemption of a misappropriation claim based on copying or taking from the copyrightable work.”).

Turning to the other preemption element, the NBA panel thought it clear that what the NBA was seeking to protect fell within the “general scope of copyright.” Title 17 U.S.C. § 106, which states that the general scope of copyright, “affords a copyright owner the exclusive right to: (1) reproduce the copyrighted work; (2) prepare derivative works; (3) distribute copies of the work by sale or otherwise; and, with respect to certain artistic works, (4) perform the work publicly; and (5) display the work publicly. See 17 U.S.C. 106(l)-(5).” Computer Assocs. Int’l, Inc. v. Altai Inc., 982 F.2d 693, 716 (2d Cir.1992). “Section 301 [of the Copyright Act] thus preempts only those state law rights that ‘may be abridged by an act which, in and of itself, would infringe one of the exclusive rights’ provided by federal copyright law,” id. (quoting Harper & Row, 723 F.2d at 200), i.e., “acts of reproduction, performance, distribution or display,” id. (internal quotation marks omitted). The claim of tortious behavior in NBA was indeed for the acts of reproduction, distribution, and display of facts by the defendants of material taken from the copyrighted broadcasts. The NBA panel therefore concluded that the plaintiffs tort claim was within the general scope of copyright.

The court was thus satisfied that both preemption factors were met.

b. Extra-Element Test

Having decided that the two preliminary factors counseled in favor of preemption, the NBA panel observed:

[C]ertain forms of commercial misappropriation otherwise within the general scope requirement will survive preemption if an “extra-element” test is met. As stated in Altai:

But if an “extra element” is “required instead of or in addition to the acts of reproduction, performance, distribution or display, in order to constitute a state-created cause of action, then the right does not lie ‘within the general scope of copyright,’ and there is no preemption.”

Altai 982 F.2d at 716 (quoting 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 1.01[B] at 1-14-15 (1991)).

NBA, 105 F.3d at 850; see also Harper & Row, 723 F.2d at 200 (“[W]hen a state law violation is predicated upon an act incorporating elements beyond mere reproduction or the like, the rights involved are not equivalent and preemption will not occur.”). It is with respect to the “extra elements” that the NBA Court proffered a three-factor analysis: “We ... find the extra elements — those in addition to the elements of copyright infringement — that allow a ‘hotnews’ claim to survive preemption are: (i) the time-sensitive value of factual information, (ii) the free-riding by a defendant, and (iii) the threat to the very existence of the product or service provided by the plaintiff.” Id. at 853 (emphasis added).

*894i. International News Service v. Associated Press

The NBA Court briefly summarized the Supreme Court’s seminal 1918 “hot news” decision, International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918) (“INS ”):

INS involved two wire services, the Associated Press (“AP”) and International News Service (“INS”), that transmitted news stories by wire to member newspapers. Id. INS would lift factual stories from AP bulletins and send them by wire to INS papers. Id. at 231 [39 S.Ct. 68]. INS would also take factual stories from east coast AP papers and wire them to INS papers on the west coast that had yet to publish because of time differentials. Id. at 238 [39 S.Ct. 68]. The Supreme Court held that INS’s conduct was a common-law misappropriation of AP’s property. Id. at 242 [39 S.Ct. 68].

NBA 105 F.3d at 845.

INS itself is no longer good law. Purporting to establish a principal of federal common law, the law established by INS was abolished by Ene Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), which largely abandoned federal common law. But, as the NBA panel pointed out, “[b]ased on legislative history of the 1976 [Copyright Act amendments], it is generally agreed that a ‘hot-news’ INS-like claim survives preemption.” NBA 105 F.3d at 845 (citing H.R.Rep. No. 94-1476 at 132).

The House of Representatives Report with respect to the preemption provisions of the 1976 Copyright Act amendments commented in this regard:

“Misappropriation” is not necessarily synonymous with copyright infringement, and thus a cause of action labeled as “misappropriation” is not preempted if it is in fact based neither on a right within the general scope of copyright as specified by [17 U.S.C. § ] 106 [specifying the general scope of copyright] nor on a right equivalent thereto. For example, state law should have the flexibility to afford a remedy (under traditional principles of equity) against a consistent pattern of unauthorized appropriation by a competitor of the facts (i.e., not the literary expression) constituting “hot” news, whether in the traditional mold of [INS], or in the newer form of data updates from scientific, business, or financial data bases.

H.R. No. 94-1476 at 132, reprinted in 1976 U.S.C.C.A.N. at 5748 (footnote omitted), quoted in NBA 105 F.3d at 850. The House Report thus anticipated that INS-like state-law torts would survive preemption. It did not itself create such a cause of action or recognize the existence of one under federal law. It allowed instead for the survival of such a state-law claim.

The NBA Court thus used INS as a description of the type of claims — “INS-like” — that, Congress has said, are not necessarily preempted by federal copyright law. Some seventy-five years after its death under Erie, INS thus maintains a ghostly presence as a description of a tort theory, not as precedential establishment of a tort cause of action.

ii. Moral Dimensions

One source of confusion in addressing these misappropriation cases is that INS itself was a case brought in equity to enjoin INS from copying AP’s uncopyrightable news. In that context, the INS Court emphasized the unfairness of INS’s practice of pirating AP’s stories. It condemned, in what sounded biblical in tone, the defendant’s “reaping] where it ha[d] not sown.”27 INS, 248 U.S. at 239, 39 S.Ct. 68. The Court said:

*895This defendant ... admits that it is taking material that has been acquired by complainant as the result of organization and the expenditure of labor, skill, and money, and which is salable by complainant for money, and that defendant in appropriating it and selling it as its own is endeavoring to reap where it has not sown, and by disposing of it to newspapers that are competitors of complainant’s members is appropriating to itself the harvest of those who have sown. Stripped of all disguises, the process amounts to an unauthorized interference with the normal operation of complainant’s legitimate business precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not; with special advantage to defendant in the competition because of the fact that it is not burdened with any part of the expense of gathering the news. The transaction speaks for itself, and a court of equity ought not to hesitate long in characterizing it as unfair competition in business.

Id. at 239-40, 39 S.Ct. 68 (emphasis added). This dicta has been absorbed by New York misappropriation law:

New York courts have noted the incalculable variety of illegal practices falling within the unfair competition rubric, calling it a broad and flexible doctrine that depends more upon the facts set forth than in most causes of action. It has been broadly described as encompassing any form of commercial immorality, or simply as endeavoring to reap where one has not sown; it is taking the skill, expenditures and labors of a competitor, and misappropriating for the commercial advantage of one person a benefit or property right belonging to another. The tort is adaptable and capacious.

Roy Exp. Co. Establishment of Vaduz, Liech. v. Columbia Broad. Sys., Inc., 672 F.2d 1095, 1105 (2d Cir.1982) (citation and alteration omitted). And it has been reflected in the rhetoric of federal district courts applying New York law. See, e.g., Fly I, 700 F.Supp.2d at 336 (quoting INS); NBA v. Sports Team Analysis & Tracking Sys. (“NBA SDNY”), 939 F.Supp. 1071,1075 (S.D.N.Y.1996) (quoting INS), rev’d, NBA, 105 F.3d 841.

The NBA Court also noted that the district court whose decision it was reviewing had “described New York misappropriation law as standing for the ‘broader principle that property rights of commercial value are to be and will be protected from any form of commercial immorality’; that misappropriation law developed ‘to deal with business malpractices offensive to the ethics of [ ] society’; and that the doctrine is ‘broad and flexible.’ ” NBA, 105 F.3d at 851 (brackets in original) (quoting NBA SDNY, 939 F.Supp. at 1098-1110) (internal citation omitted). But Judge Winter explicitly rejected the notion that “hot news” misappropriation cases based on the disapproval of the perceived unethical nature of a defendant’s ostensibly piratical acts survive preemption. The Court concluded that “such concepts are virtually synonymous [with] wrongful copying and are in no meaningful fashion distinguishable from infringement of a copyright. The broad misappropriation doctrine relied upon by the district court is, therefore, the equivalent of exclusive rights in copyright law.” NBA, 105 F.3d at 851 (deeming preempted the broad theory of misappropriation embodied in Metropolitan Opera Ass’n v. *896 Wagner-Nichols Recorder Corp., 199 Misc. 786, 101 N.Y.S.2d 483 (N.Y. County Sup. Ct.1950), affd, 279 A.D. 632, 107 N.Y.S.2d 795 (1st Dep’t 1951)).

No matter how “unfair” Motorola’s use of NBA facts and statistics may have been to the NBA — or Fly’s use of the fact of the Firms’ Recommendations may be to the Firms — then, such unfairness alone is immaterial to a determination whether a cause of action for misappropriation has been preempted by the Copyright Act.28 The adoption of new technology that injures or destroys present business models is commonplace. Whether fair or not,29 that cannot, without more, be prevented by application of the misappropriation tort. Indeed, because the Copyright Act itself provides a remedy for wrongful copying, such unfairness may be seen as supporting a finding that the Act preempts the tort. See id.

iii. Narrowness of the Preemption Exception

The NBA panel repeatedly emphasized the “narrowness” of the “hot news” tort exception from preemption. See id. at 843, 848, 851, 852 (using the word “narrow” or “narrowness” five times). Although our discussion of preemption in NBA did not focus on the importance of maintaining the *897uniform nationwide scheme that the Copyright Act, with its 1976 preemption amendment, 17 U.S.C. § 301, provides, we later underscored it. In Krause v. Titleserv, Inc., 402 F.3d 119, 123 (2d Cir.2005), we declined to limit protection for copyrights held by “owners” of computer programs to those with formal title to such programs. The first reason we gave was that title may depend on state law that differs from one state to another.

The result would be to undermine some of the uniformity achieved by the Copyright Act.... If [the relevant section of the Copyright Act] required formal title, two software users, engaged in substantively identical transactions might find that one is liable for copyright infringement while the other is protected by [the section], depending solely on the state in which the conduct occurred. Such a result would contradict the Copyright Act’s “express objective of creating national, uniform copyright law by broadly preempting state statutory and common-law copyright regulation. ” Community for Creative Non-Violence v. Reid, 490 U.S. 730, 740, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989); see also 17 U.S.C. § 301(a).

Id. at 123 (emphasis added).

Indeed, central to the principle of preemption generally is the value of providing for legal uniformity where Congress has acted nationally. See, e.g., Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 113 (2d Cir.2008) (“The purpose of ERISA preemption is to ensure that all covered benefit plans will be governed by unified federal law, thus simplifying life for employers administering plans in several states, because a patchwork scheme of regulation would introduce considerable inefficiencies in benefit program operation.” (internal quotation marks and brackets omitted)).

This is a pressing concern when considering the “narrow” “hot news” misappropriation exemption from preemption. The broader the exemption, the greater the likelihood that protection of works within the “general scope” of the copyright and of the type of works protected by the Act will receive disparate treatment depending on where the alleged tort occurs and which state’s law is found to be applicable.

The problem may be illustrated by reference to a recent case in the Southern District of New York. In Associated Press v. All Headline News Corp., 608 F.Supp.2d 454 (S.D.N.Y.2009), the court sought to determine whether there was a difference between New York and Florida “hot news” misappropriation law in order for it to analyze, under choice-of-law principles, which state’s law applied. Judge Castel observed that “[n]o authority has been cited to show that Florida recognizes a cause of action for hot news misappropriation. Then again, defendants have not persuasively demonstrated that Florida would not recognize such a claim.”30 Id. at 459-60.

It appears, then, that the alleged “hot news” misappropriation in All Headline News Corp. might have been permissible in New York but not in Florida. The same could have been said for the aggregation and publication of basketball statistics in NBA and the same may be said as to the aggregation and publication of Recommendations in the case at bar. To the extent that “hot news” misappropriation causes of action are not preempted, the aggregators’ actions may have different *898legal significance from state to state — permitted, at least to some extent, in some; prohibited, at least to some extent, in others. It is this sort of patchwork protection that the drafters of the Copyright Act preemption provisions sought to minimize, and that counsels in favor of locating only a “narrow” exception to Copyright Act preemption.

c. Three- and Five-Part “Tests”

Before concluding that the NBA’s claim was preempted, the NBA panel set forth in its opinion — twice—a five-part “test” for identifying a non-preempted “hot news” misappropriation claim. The district court in this case, when applying NBA structured its conclusions-of-law analysis around NBA’s first iteration of the “test”:

We hold that the surviving “hot-news” INS-Hke claim is limited to cases where: (i) a plaintiff generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendant’s use of the information constitutes free-riding on the plaintiffs efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. We conclude that SportsTrax does not meet that test.

NBA 105 F.3d at 845; see Fly I, 700 F.Supp.2d at 334-35 (quoting the passage but omitting the first fifteen prefatory words). But the panel restated the five-part inquiry later in its opinion:

In our view, the elements central to an INS claim are: (i) the plaintiff generates or collects information at some cost or expense, see [Financial Information, Inc. v. Moody’s Investors Serv., 808 F.2d 204, 206 (2d Cir.1996) (“FII”)]; INS, 248 U.S. at 240, 39 S.Ct. 68; (ii) the value of the information is highly time-sensitive, see FII, 808 F.2d at 209; INS, 248 U.S. at 231, 39 S.Ct. 68; Restatement (Third) Unfair Competition, § 38 cmt. c.; (iii) the defendant’s use of the information constitutes free-riding on the plaintiffs costly efforts to generate or collect it, see FII, 808 F.2d at 207; INS, 248 U.S. at 239-40, 39 S.Ct. 68; Restatement § 38 at cmt. c.; McCarthy, § 10:73 at 10-139; (iv) the defendant’s use of the information is in direct competition with a product or service offered by the plaintiff, FII, 808 F.2d at 209, INS, 248 U.S. at 240, 39 S.Ct. 68; (v) the ability of other parties to free-ride on the efforts of the plaintiff would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened, FII, 808 F.2d at 209; Restatement, § 38 at cmt. c.; INS, 248 U.S. at 241, 39 S.Ct. 68 (“[INS’s conduct] would render [AP’s] publication profitless, or so little profitable as in effect to cut off the service by rendering the cost prohibitive in comparison with the return.”).

NBA, 105 F.3d at 852.

Throughout this litigation the parties seem to have been in general agreement that the district court and we should employ a five-part analysis taken from the NBA opinion. It is understandable, of course, that counsel and the district court did in this case, and do in other comparable circumstances, attempt to follow our statements in precedential opinions as to what the law is — which we often state in terms of what we “hold.” But that reading is not always either easy to make or technically correct. As Judge Friendly put it in colorful terms: “A judge’s power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the *899word ‘hold.’ ” United States v. Rubin, 609 F.2d 51, 69 (2d Cir.1979) (Friendly, J., concurring), quoted in Pierre N. Leval, Judging Under the Constitution: Dicta about Dicta, 81 N.Y.U. L.Rev. 1249, 1249 (2006). See also generally Leval, supra (containing seminal discussion of judicial use of the term “holding”); id. at 1256 (“A dictum [i.e., a conclusion or point of view in an opinion that is not a holding] is an assertion in a court’s opinion of a proposition of law [that] does not explain why the court’s judgment goes in favor of the winner.”); Judith M. Stinson, Why Dicta Becomes Holding and Why it Matters, 76 Brook. L.Rev. 219, 219 n. 2 (2010) (collecting authorities addressing difficulties with judicial use of the term “hold”).31

It is axiomatic that appellate judges cannot make law except insofar as they reach a conclusion based on the specific facts and circumstances presented to the court in a particular appeal. Subordinate courts and subsequent appellate panels are required to follow only these previous appellate legal “holdings.” The NBA panel decided the case before it, and we think that the law it thus made regarding “hot news” preemption is, as we have tried to explain, determinative here. But the Court’s various explanations of its five-part approach are not.32 Indeed, we do not see how they *900can be: The two five-part “tests” are not entirely consistent, and are less consistent still with the three-“extra element” test, which also appears later in the opinion:

We therefore find the extra elements— those in addition to the elements of copyright infringement — that allow a “hotnews” claim to survive preemption are: (i) the time-sensitive value of factual information, (ii) the free-riding by a defendant, and (iii) the threat to the very existence of the product or service provided by the plaintiff.”

Id. at 853.

For example, the fifth of the five factors in the first iteration of the test is that “the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.” NBA, 105 F.3d at 845 (emphasis added). The second iteration is similar, but adds a quotation from INS which can be read to make the factor far more difficult to demonstrate: that the conduct “would render [the plaintiffs] publication profitless, or so little profitable as in effect to cut off the service by rendering the cost prohibitive in comparison with the return.’ ” Id. at 852 (emphasis added) (quoting INS, 248 U.S. at 241, 39 S.Ct. 68). Then, in rehearsing the “extra elements” that may avoid preemption, the panel referred to “the threat to the very existence of the product or service provided by the plaintiff.” Id. at 853 (emphasis added).

The distinctions between these various statements of a multi-part test are substantial. Were we required to rule on the district court’s findings of fact ourselves in light of these various versions of elements, we might well perceive no clear error in a finding that the existence or quality, id. at 845, of the Firms’ reports were placed in jeopardy by what the district court found to be “free riding.” By contrast, we might otherwise conclude that there is insufficient record evidence to sustain a finding either that the alleged free-riding by Fly and similar aggregators “in effect ... cut off the [Firms’] service by rendering the cost prohibitive in comparison with the return,” id. at 852, or were a “threat to the very existence of the product or service provided by the plaintifffs],” id. at 853.33 It seems to us that each of NBA’s three multi-element statements serves a somewhat different purpose. The first is a general introduction, by way of summary, of what the decision concludes. The second may be described as “stating *901the elements of the tort.” ConFold Pac., Inc. v. Polaris Indus., 433 F.3d 952, 960 (7th Cir.2006) (Posner, J.). And the third focuses on what “extra elements” are necessary to avoid preemption despite the conclusion that the “general scope requirement” and the “subject matter requirement,” NBA 105 F.3d at 848, have been met.

In our view, the several NBA statements were sophisticated observations in aid of the Court’s analysis of the difficult preemption issues presented to it. See Leval, supra, at 1254. Inconsistent as they were, they could not all be equivalent to a statutory command to which we or the district court are expected to adhere.34

We engage in this somewhat extended discussion because the parties agreed that the district court should employ the five-part analysis derived NBA and the district court did so. But we cannot supplant this Court’s view of the law with the view of the parties. See, e.g., Kamen v. Kemper Fin. Sens. Inc., 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991); Hankins v. Lyght, 441 F.3d 96, 104 (2d Cir.2006); Becker v. Poling Transp. Corp., 356 F.3d 381, 390 (2d Cir.2004).

2. NBA Preemption Analysis Applied to The NBA Facts

Applying the principles of preemption it had identified, the NBA Court concluded that the tort claim that the NBA sought to assert against Motorola and STATS was preempted by the Copyright Act because, the “general scope requirement” and the “subject matter requirement” having been satisfied, the “extra elements” necessary for such a claim nonetheless to survive preemption were absent. This was so despite the fact that Motorola and STATS were indeed disseminating, on a timely basis, information about NBA games that the NBA was also circulating.35 The Court concluded that:

An indispensable element of an INS “hot news” claim is free-riding by a defendant on a plaintiffs product, enabling the defendant to produce a directly competitive product for less money because it has lower costs.... Appellants are in no way free-riding on [the NBA service that provided game statistics to the public]. Motorola and STATS expend their own resources to collect purely factual information generated in NBA games to transmit to [Motorola] pagers. They have their own network and assemble and transmit data themselves.

To be sure, if appellants in the future were to collect facts from an enhanced [NBA] pager to retransmit them to [Motorola’s] pagers, that would constitute free-riding and might well cause [the *902NBA service] to be unprofitable because it had to bear costs to collect facts that [Motorola] did not. If the appropriation of facts from one pager to another pager service were allowed, transmission of current information on NBA games to pagers or similar devices would be substantially deterred because any potential transmitter would know that the first entrant would quickly encounter a lower cost competitor free-riding on the originator’s transmissions.

However, that is not the case in the instant matter. [Motorola] and [the NBA] are each bearing [its] own costs of collecting factual information on NBA games, and, if one produces a product that is cheaper or otherwise superior to the other, that producer will prevail in the marketplace. This is obviously not the situation against which INS was intended to prevent: the potential lack of any such product or service because of the anticipation of free-riding.

NBA, 105 F.3d at 854 (footnote omitted).

B. Preemption and This Appeal

We conclude that applying NBA and copyright preemption principles to the facts of this case, the Firms’ claim for “hot news” misappropriation fails because it is preempted by the Copyright Act. First, the Firms’ reports culminating with the Recommendations satisfy the “subject matter” requirement because they are all works “of a type covered by section[ ] 102,” i.e., “original works of authorship fixed in a[] tangible medium of expression.” 17 U.S.C. § 102. As discussed above, it is not determinative for the Copyright Act preemption analysis that the facts of the Recommendations themselves are not copyrightable. See NBA, 105 F.3d at 850. Second, the reports together with the Recommendations fulfill the “general scope” requirement because the rights “may be abridged by an act which, in and of itself, would infringe one of the exclusive rights’ provided by federal copyright law,” Altai, Inc., 982 F.2d at 716 (citing Harper & Row, 723 F.2d at 200), i.e., “acts of reproduction, performance, distribution or display,” id. (internal quotation marks omitted).

Third and finally, the Firms’ claim is not a so-called INS-type non-preempted claim because Fly is not, under NBA’s analysis, “free-riding.” It is collecting, collating and disseminating factual information — the facts that Firms and others in the securities business have made recommendations with respect to the value of and the wisdom of purchasing or selling securities— and attributing the information to its source. The Firms are making the news; Fly, despite the Firms’ understandable desire to protect their business model, is breaking it.36 As the INS Court explained, long before it would have occurred *903to the Court to cite the First Amendment for the proposition:

[T]he news element — the information respecting current events contained in the literary production — is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day. It is not to be supposed that the framers of the Constitution, when they empowered Congress “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (Const., Art. I, § 8, par. 8), intended to confer upon one who might happen to be the first to report a historic event the exclusive right for any period to spread the knowledge of it.

INS, 248 U.S. at 234, 39 S.Ct. 68.

The use of the term “free-riding” in recent “hot news” misappropriation jurisprudence exacerbates difficulties in addressing these issues. Unfair use of another’s “labor, skill, and money, and which is salable by complainant for money,” INS, 248 U.S. at 239, 39 S.Ct. 68, sounds like the very essence of “free-riding,” and, the term “free-riding” in turn seems clearly to connote acts that are quintessentially unfair.

It must be recalled, however, that the term free-riding refers explicitly to a requirement for a cause of action as described by INS. As explained by the NBA Court, “[a]n indispensable element of an INS ‘hot news’ claim is free-riding by a defendant on a plaintiffs product.” NBA, 105 F.3d at 854.

The practice of what NBA referred to as “free-riding” was further described by INS. The INS Court defined the “hot news” tort in part as “taking material that has been acquired by complainant as the result of organization and the expenditure of labor, skill, and money, and which is salable by complainant for money, and ... appropriating it and selling it as [the defendant’s] own____” INS, 248 U.S. at 239, 39 S.Ct. 68. That definition fits the facts of INS: The defendant was taking news gathered and in the process of dissemination by the Associated Press and selling that news as though the defendant itself had gathered it. But it does not describe the practices of Fly. The Firms here may be “acquiring material” in the course of preparing their reports, but that is not the focus of this lawsuit. In pressing a “hot news” claim against Fly, the Firms seek only to protect their Recommendations, something they create using their expertise and experience rather than acquire through efforts akin to reporting.

Moreover, Fly, having obtained news of a Recommendation, is hardly selling the Recommendation “as its own,” INS, 248 U.S. at 239, 39 S.Ct. 68. It is selling the information with specific attribution to the issuing Firm. Indeed, for Fly to sell, for example, a Morgan Stanley Recommendation “as its own,” as INS sold the news it cribbed from AP to INS subscribers, would be of little value to either Fly or its customers. If, for example, Morgan Stanley were to issue a Recommendation of Boeing common stock changing it from a “hold” to a “sell,” it hardly seems likely that Fly would profit significantly from disseminating an item reporting that “Fly has changed its rating of Boeing from a hold to a sell.” It is not the identity of Fly and its reputation as a financial analyst that carries the authority and weight sufficient to affect the market. It is Fly’s accurate attribution of the Recommendation to the creator that gives this news its value.

We do not perceive a meaningful difference between (a) Fly’s taking material that a Firm has created (not “acquired”) as the result of organization and the ex*904penditure of labor, skill, and money, and which is (presumably) salable by a Firm for money,37 and selling it by ascribing the material to its creator Finn and author (not selling it as Fly’s own), and (b) what appears to be unexceptional and easily recognized behavior by members of the traditional news media — to report on, say, winners of Tony Awards or, indeed, scores of NBA games with proper attribution of the material to its creator.38 INS did not purport to address either.

It is also noteworthy, if not determinative, that INS referred to INS’s tortious behavior as “amounting] to an unauthorized interference with the normal operation of complainant’s legitimate business precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not....” Id. at 240, 39 S.Ct. 68 (emphases added). As we have seen, the point at which the Firms principally reap their profit is upon the execution of sales or purchases of securities. It is at least arguable that Fly’s interference with the “normal operation” of the Firms’ business is indeed at a “point” where the Firms’ profits are reaped. But it is not at all clear that that profit is being in any substantial sense “diverted” to Fly by its publication of Recommendations news. The lost commissions are, we would think, diverted to whatever broker happens to execute a trade placed by the recipient of news of the Recommendation from Fly.

To be sure, as the district court pointed out, “Fly [has made efforts], which have met with some success, to link its subscribers to discount brokerage services.” Fly I, 700 F.Supp.2d at 340 (emphasis added). The court viewed these steps as “reflecting] the final stage in [Fly’s] direct competition with the Firms by leveraging its access to their Recommendations and driving away their commission revenuefs].” Fly I, 700 F.Supp.2d at 340.

But we see nothing in the district court’s opinion or in the record to indicate that the so-called “final stage” has in fact matured to a point where a significant portion of the diversion of profits to which the Firms object is lost to brokers in league with Fly or its competitors. Firm clients are, moreover, free to employ their authorized knowledge of a Recommendation to make a trade with a discount broker for a smaller fee. And, as we understand the record, the Firms channel fees to their brokerage operations using a good deal *905more than their Recommendations alone. A non-public Firm report, quite apart from the attached Recommendation — by virtue of the otherwise non-public information the report contains, including general news about the state of the markets, securities, and economic conditions — seems likely to play a substantial part in the Firms’ ability to obtain trading business through their research efforts. It is difficult on this record for us to characterize Fly’s publication of Recommendations as an unauthorized interference with the normal operation of Firms’ legitimate business precisely at the point where the profit is to be reaped which, directly or indirectly, diverts a material portion of the Firms’ profits from the Firms to Fly and others engaged in similar practices. See INS, 248 U.S. at 240, 39 S.Ct. 68.

We do not mean to be parsing the language of INS as though it were a statement of law the applicability of which determines the outcome of this appeal. As we have explained, the law that INS itself established was overruled many years ago. But in talking about a “ ‘hot-news’ INS-like claim,” as we did in NBA, 105 F.3d at 845, or “the INS tort,” as the district court did in this case, Fly I, 700 F.Supp.2d at 336, we are mindful that the INS Court’s concern was tightly focused on the practices of the parties to the suit before it: news, data, and the like, gathered and disseminated by one organization as a significant part of its business, taken by another entity and published as the latter’s own in competition with the former. The language chosen by the INS Court seems to us to make clear the substantial distance between that case and this one.

Here, like the defendants in NBA and unlike the defendant in INS, Fly “[has its] own network and assemble[s] and trans-mitts] data [it] selffl.” NBA 105 F.3d at 854. In NBA Motorola and STATS employees watched basketball games, compiled the statistics, scores, and other information from the games, and sold the resulting package of data to their subscribers. We could perceive no non-preempted “hot news” tort. Here, analogous to the defendant’s in NBA Fly’s employees are engaged in the financial-industry equivalent of observing and summarizing facts about basketball games and selling those packaged facts to consumers; it is simply the content of the facts at issue that is different.

And, according to our decision in NBA: “An indispensable element of a[ non-preempted] INS ‘hot-news’ claim is free-riding by a defendant on a plaintiffs product, enabling the defendant to produce a directly competitive product for less money because it has lower costs.” See id. In NBA we concluded that the defendant’s SportsTrax service was not such a product, in part because it was “bearing [its] own costs of collecting factual information on NBA games.” Id. In this case, as the district court found, approximately half of Fly’s twenty-eight employees are involved on the collection of the Firms’ Recommendations and production of the newsfeed on which summaries of the Recommendations are posted. Fly I, 700 F.Supp.2d at 325. Fly is reporting financial news — factual information on Firm Recommendations— through a substantial organizational effort. Therefore, Fly’s service — which collects, summarizes, and disseminates the news of the Firms’ Recommendations — is not the “/AN-like” product that could support a non-preempted cause of action for misappropriation.

By way of comparison, we might, as the NBA Court did, see id., 105 F.3d at 854, speculate about a product a Firm might produce which might indeed give rise to an non-preempted “hot-news” misappropriation claim. If a Firm were to collect and *906disseminate to some portion of the public facts about securities recommendations in the brokerage industry (including, perhaps, such facts it generated itself — its own Recommendations), and were Fly to copy the facts contained in the Firm’s hypothetical service, it might be liable to the Firm on a “hot-news” misappropriation theory.39 That would appear to be an ZAIS-type claim and might survive preemption.40 See also, e.g., All Headline News Corp., 608 F.Supp.2d at 454 (suggesting, in a case presenting facts more closely analogous to INS, that the plaintiff may have had a non-preempted “hot news” cause of action). See generally Complaint (Dkt. No. 1), AP v. All Headline News Corp., No. 08-cv-323 (S.D.N.Y. Jan. 14, 2008). But the Firms have no such product and make no such claim. On the facts of this case, they do not have an “ZAN-like” non-preempted “hot news” misappropriation cause of action against Fly.

C. Judge Raggi’s Concurrence

Judge Raggi would reach the same outcome as do we, but “would apply the NBA test to this case and reverse on the ground that the Firms failed to satisfy its direct competition requirement for a non-preempted claim.” Post, at 912. We express no opinion as to whether there is or was direct competition between the Firms and Fly with regard to the Recommendations because we are bound by the holding of NBA. On the facts of that case, the plaintiffs cause of action was preempted by the copyright law because the defendants did not “free ride” on the plaintiffs work product.41 The NBA panel did not decide the case before it on the basis of the presence or absence of direct competition, which it thought to be an element of the preemption inquiry but did not depend upon in its analysis. We think that the *907 NBA panel’s decision that the absence of “free riding” was fatal to the plaintiff’s claim in that case is binding upon us on the facts presented here. In other words, even were we to conclude, hypothetically and contrary to Judge Raggi’s views, that there was indeed direct competition between the Firms and Fly with respect to the Recommendations, we would nonetheless be bound to reverse the judgment of the district court based on our reading of NBA. The presence or absence of direct competition is thus not determinative and is therefore a matter we are not called upon to decide here.

CONCLUSION

We conclude that in this case, a Firm’s ability to make news — by issuing a Recommendation that is likely to affect the market price of a security — does not give rise to a right for it to control who breaks that news and how. We therefore reverse the judgment of the district court to that extent and remand with instructions to dismiss the Firms’ misappropriation claim.

REENA RAGGI, Circuit Judge,

concurring:

I join the court in reversing the judgment in favor of the Firms on their state law claims of “hot news” misappropriation on the ground that such claims are preempted by federal copyright law. See 17 U.S.C. § 301. Unlike my colleagues in the majority, I do not reject the five-part test enunciated in National Basketball Association v. Motorola, Inc., 105 F.3d 841 (2d Cir.1997) (“NBA”), to reach this result. Whatever reservations I may have about that test as a means for identifying non-preempted “hot news” claims, I do not think it can be dismissed as dictum. Accordingly, I write separately to explain why I conclude that the Firms failed to satisfy the “direct competition” requirement of NBA’s test.

1. The Firms’ Claims Satisfy the Subject Matter Requirement for Federal Copyright Preemption

At the outset, I note my agreement with the majority’s conclusion that the Firms’ claims satisfy the subject matter requirement for copyright preemption of state law. See ante at 891-93, 901-03. The written research reports containing the Recommendations are certainly “within the type of works protected by” §§ 102 and 103 of the Copyright Act. Briarpatch Ltd. v. Phoenix Pictures, Inc., 373 F.3d 296, 305 (2d Cir.2004); see also 17 U.S.C. § 301(a), (b)(1). Moreover, although the Recommendations are uncopyrightable opinions, see 17 U.S.C. § 102(b); Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 978 (2d Cir.1980) (noting that copyright does not protect ideas or interpretations of facts), § 301 preempts claims regarding the “uncopyrightable as well as copyrightable elements” within the protected reports, NBA, 105 F.3d at 849-50. Thus, while the Firms can invoke copyright law to prevent Fly from copying the original expression of their ideas, and indeed have successfully done so in this case, they cannot avoid preemption by seeking state law protection only for the non-copyrightable Recommendations.

This conclusion obtains from Congress’s considered choices (1) to withhold copyright protection for ideas but, nevertheless, (2) to preempt that which falls within the subject matter of copyright rather than only what is protected by copyright. See 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 19D.03 [A][2][b], at 19D-28 (2010) (noting Congress’s “policy decision” not to protect ideas with copyright); 5 William F. Patry, Patry on Copyright §§ 18:14-18:15, at 18-49 to 18-53 *908(2011) (noting that § 301 refers to subject matter of copyright referenced in § 102, which section describes what is and is not copyrightable, rather than only works protected by copyright). The fact that the Recommendations are valuable in part because they are authored by the Firms, which have made a “substantial investment” in building reputations for producing high quality research, Barclays Capital Inc. v. Theflyonthewall.com, 700 F.Supp.2d 310, 319 (S.D.N.Y.2010), does not change the result. Even if Fly’s distribution of Recommendations might be viewed as a misappropriation of the Firms’ goodwill, such claims are preempted for the reasons discussed infra at 908-11. See 5 Patry, supra, § 18:39, at 18-129 (noting that claims for misappropriation of goodwill are preempted); see also Marmllo v. Gruner + Jahr AG & Co., No. 98Civ5000, 2001 WL 40772, at *7 (S.D.N.Y. Jan. 17, 2001) (dismissing claim of misappropriation “designed to trade” on “popularity and goodwill” as preempted (internal quotation marks omitted)).

To be sure, legal theories other than copyright might protect the Firms’ trademarks or prevent confusion regarding the Recommendations’ origins. See, e.g., 15 U.S.C. § 1114(1) (imposing liability for use or imitation of registered marks “likely to cause confusion,” mistake, or deception); id. § 1125(a)(1)(A) (imposing liability for use of “any false designation of origin,” or misleading representations “likely to cause confusion ... as to the origin, sponsorship, or approval” of goods). But the Firms do not allege that Fly passed off its own financial advice as that of the Firms or misrepresented that the Recommendations originated with Fly. Cf. Warner Bros. Inc. v. Am. Broad. Cos., 720 F.2d 231, 247 (2d Cir.1983) (noting non-preemption of unfair competition claims based on “passing off’). To the extent the Firms seek to protect their Recommendations from dissemination, a subject preempted but not protected by federal copyright law, they must seek relief from Congress rather than the courts.

2. The Firms’ Claims Satisfy the General Scope Requirement for Preemption Under NBA

I also agree with the majority’s determination that the Firms’ claims satisfy § 301’s general scope requirement because the Firms seek to vindicate rights “that may be abridged by an act which, in and of itself, would infringe one of the exclusive rights provided by federal copyright law.” Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 716 (2d Cir.1992) (internal quotation marks omitted); see ante at 892-93, 902-03. In reaching this conclusion, the majority dismisses the five-part test enunciated in NBA as dictum and identifies other factors distinguishing this ease from International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918) (“INS”). See ante at 898-906. Although I too have'reservations about NBA’s test — specifically, whether it in fact identifies “extra elements” qualitatively different from those rights protected exclusively by copyright to avoid preemption — I am not convinced that the standard can be dismissed as dictum. In any event, we need not do so in this case because the Firms failed to satisfy the direct competition requirement of NBA’s test.

a. NBA’s Test May Not Identify Elements Qualitatively Different from Exclusive Rights Protected by Copyright

Having disclosed reservations as to NBA’s test, I briefly explain them.

States originally exercised concurrent power over copyright as long as their laws *909did not conflict with federal statutory protections. See Goldstein v. California, 412 U.S. 546, 560-61, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973); Roth v. Pritikin, 710 F.2d 934, 938 (2d Cir.1983) (noting “dual system” in which federal law regulated published works while state common law protected unpublished material). The Copyright Act of 1976 ended this “unwieldy” arrangement by implementing a “uniform system of copyright protection,” Roth v. Pritikin, 710 F.2d at 938, and expressly preempting certain state laws respecting “legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106,” 17 U.S.C. § 301(a); see Briarpatch Ltd. v. Phoenix Pictures, Inc., 373 F.3d at 305.

To identify rights “equivalent” to those protected by copyright, courts apply an “extra elements” test that saves from federal preemption claims requiring elements “instead of or in addition to the acts of reproduction, performance, distribution or display.” Computer Assocs. Int’l, Inc. v. Altai Inc., 982 F.2d at 716 (internal quotation marks omitted); see 1 Nimmer, supra, § 1.01[B][1], at 1-12 to 1-14. This test is satisfied, however, only if extra elements change “the nature of the action so that it is qualitatively different from a copyright infringement claim.” Computer Assocs. Int’l, Inc. v. Altai Inc., 982 F.2d at 716 (internal quotation marks omitted; emphasis in original). Put another way, elements that limit “the scope of the claim but leave[] its fundamental nature unaltered” do not prevent preemption. Briar-patch Ltd. v. Phoenix Pictures, Inc., 373 F.3d at 306-07; see Mayer v. Josiah Wedgwood & Sons, Ltd., 601 F.Supp. 1523, 1535 (S.D.N.Y.1985) (stating that elements altering “action’s scope but not its nature” are insufficient to avoid preemption). For example, claims based on breaches of fiduciary duty, contractual promises of confidentiality, or trade secrets often survive preemption because “the underlying right they seek to vindicate is the right to redress violations of’ a particular duty or promise different from an exclusive right protected by copyright. Briarpatch Ltd. v. Phoenix Pictures, Inc., 373 F.3d at 307; see also Kregos v. Associated Press, 3 F.3d 656, 666 (2d Cir.1993); 1 Nimmer, supra, § 1.01[B][l][a][i], at 1-15 to 1-16 (stating that claims for breaches of contractual confidentiality provisions are not preempted).1 In contrast, unfair competition, misappropriation, or unjust enrichment claims are. preempted when based on alleged acts such as distribution or reproduction, despite required elements of intent, enrichment, or commercial immorality. See, e.g., Briarpatch Ltd. v. Phoenix Pictures, Inc., 373 F.3d at 306-07 (concluding that “enrichment element,” like intent or awareness, limited claim’s scope but left its “fundamental nature unaltered”); Financial Info., Inc. v. Moody’s Investors Sent., Inc., 808 F.2d 204, 208 (2d Cir.1986) (concluding unfair competition claim preempted de*910spite requirement of “commercial immorality” (internal quotation marks omitted)).2

In NBA, this court applied the “extra element” test to determine “the extent to which a ‘hot news’ misappropriation claim,” originally identified by the Supreme Court in INS prior to the Copyright Act of 1976, avoided § 301 preemption. See 105 F.3d at 850-51. In concluding that “some form” of “hot news” claim was not preempted, NBA relied first on a House Report to the 1976 Act stating that “ ‘state law should have the flexibility to afford a remedy ... against a consistent pattern of unauthorized appropriation by a competitor of the facts (i.e., not the literary expression) constituting ‘hot’ news, whether in the traditional mold’” of INS “‘or in the newer form of data updates from scientific, business, or financial data bases.’” Id. at 850 (quoting H.R.Rep. No. 94-1476, at 132, 1976 U.S.C.C.A.N. 5659, 5748 (1976)); see id. (citing Financial Info., Inc. v. Moody’s Investors Serv., Inc., 808 F.2d at 209 (relying on House Report in noting that “hot news” claims not preempted)).

Although this legislative history is some evidence that Congress did not intend federal copyright law to preempt all “hot news” claims, the scope of that intent is not easily discerned. The House Report references an earlier version of the 1976 Act containing examples of non-preempted actions, including “rights against misappropriation not equivalent to” the exclusive § 106 rights, “breaches of contract, breaches of trust ... and deceptive trade practices such as passing off and false representation.” H.R.Rep. No. 94-1476, at 24, 1976 U.S.C.C.A.N. 5659, 5748; see also 5 Patry, supra, § 18:8, at 18-21 to 18-27. After the Justice Department raised concerns about the identification of misappropriation as a non-preempted action, Congress chose to omit the entire list from the final bill. See 5 Patry, supra, § 18:8, at 18-27 to 18-31 (discussing confusing colloquy between House Judiciary Committee members regarding deletion of list). Thus, it is not clear what weight the Report excerpt quoted in NBA can bear in any assessment of whether a particular “hot news” claim survives federal copyright preemption. See generally Architectronics, Inc. v. Control Sys., Inc., 935 F.Supp. 425, 440-41 (S.D.N.Y.1996) (declining to rely on § 301’s “puzzling and unreliable” legislative history); cf. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1203-05 (2d Cir.1992) (declining, in context *911of analyzing Comprehensive Environmental Response, Compensation, and Liability Act, to rely on legislative history “revealing] a picture more confusing than pellucid”).

NBA next identified five factors central to a non-preempted “INS-like” claim: (1) the plaintiff incurred costs to generate or gather information (2) that is time-sensitive and (3) used by the defendant in a manner constituting free-riding (4) in direct competition with plaintiffs product when (5) the ability of parties to free-ride so reduces the incentive to produce the product that its existence or quality is' substantially threatened. 105 F.3d at 852.3 I share the concern expressed by some courts and commentators as to whether these “extra elements” qualitatively differentiate a “hot news” tort from a claim of unauthorized copying or distribution, activities violating rights equivalent to those within the general scope of § 106. See 5 Patry, supra, § 18:40, at 18-139 to 18-141 (questioning whether NBA’s factors are sufficient to avoid preemption). “Free riding” in this context appears synonymous with proscribed copying. See id. § 18:40, at 18-140 (“[C]opying information someone else generated ... can always be characterized as free riding....”); Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F.Supp.2d 737, 756 (D.Md.2003) (noting that free riding “may be a pejorative description of copying, but it is still copying” (internal quotation marks omitted)). Although the other four NBA factors may narrow the tort’s scope to egregious instances of “free riding” factually similar to INS, they do not appear to alter the nature of the claim. See Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F.Supp.2d at 756 (noting that “cost,” “time sensitivity,” and “direct competition ... merely define pre-existing conditions” while “threat” to plaintiffs business “merely identifies a consequence of’ free riding). Accordingly, I share some of the majority’s doubt regarding the viability of NBA’s test, but for a different reason. I question whether the test adequately identifies tort claims with “extra elements” qualitatively different from the rights protected by copyright.

b. NBA’s Test Is Not Dictum

Despite my reservations regarding NBA’s test, I think it controls our resolution of this appeal. My colleagues in the majority are of a different view. They conclude that NBA “held” only that the facts presented could not establish a non-preempted “hot news” claim. Ante at 899 & n. 32. They dismiss NBA’s five-part test as an unnecessary discussion of hypothetical circumstances giving rise to a “hot news” claim, which, as dictum, we need not follow. See ante at 898-900 & n. 32. I am not convinced.

In holding that the NBA plaintiff failed to assert a non-preempted “hot news” claim, the court was required to determine the “breadth of the ‘hot news’ claim that survives preemption.” See NBA 105 F.3d at 850 (emphasis in original). To answer that “crucial question,” id., the court identified five factors required to state a non-preempted “hot news” claim, applied them to the facts presented, and concluded that plaintiffs claim failed, id. at 845, 852-54. Because the test was thus necessary to the opinion’s result, it is not dictum. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66-67, 116 S.Ct. 1114, 134 L.Ed.2d 252 *912(1996) (noting Supreme Court bound “not only [to] the result” of prior opinions but also to portions “necessary” to that result); Baraket v. Holder, 632 F.3d 56, 59 (2d Cir.2011) (“[I]t is not substantive discussion of a question or lack thereof that distinguishes holding from dictum, but rather whether resolution of the question is necessary for the decision of the case.”); Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497, 508 (2d Cir.1996) (stating that dictum refers to observations that “could have been deleted without seriously impairing the analytical foundations of the holding” (internal quotation marks omitted)).

The majority doubts whether the five-part test could be part of NBA’s “holding” because the opinion twice describes that test and once identifies three, rather than five, needed “extra elements,” namely, (1) the time-sensitive value of the information; (2) free-riding; and (3) the threat to the existence of plaintiffs product. See ante at 899-901 (citing NBA 105 F.3d at 845, 852-53). In fact, the two iterations of the five-part test are almost identical despite one version’s citation to stronger language from INS requiring the competition to “cut off the service by rendering the cost prohibitive.” NBA 105 F.3d at 842, 852-53 (internal quotation marks omitted). Moreover, in its three-element formulation, NBA emphasized the need for a “hot news” plaintiff to show “free riding ... enabling the defendant to produce a directly competitive product for less money because it has lower costs.” Id. at 854 (emphasis added). Direct competition is thus essential to a non-preempted claim, whether such competition is identified as a distinct element of a five-part test or as part of the free-riding component of a three-part test. Cf. United States v. Quinones, 511 F.3d 289, 315-16 (2d Cir.2007) (identifying no error in charge that defined racketeering by reference to three elements rather than traditional five where “three-element formulation” included “all the factual findings necessary to support” conviction). Similarly, the gathering of information at a cost appears to be a prerequisite under both iterations of the NBA test because the three-part formulation requires time-sensitive information. Any remaining differences may afford flexibility for future panels to explain particular elements but they do not permit wholesale abandonment of the test as dictum.

Even if the test were dictum, such a strong statement of standards deserves “close consideration” and respect. Jimenez v. Walker, 458 F.3d 130, 142 (2d Cir. 2006); see also United States v. Garcia, 413 F.3d 201, 232 n. 2 (2d Cir.2005) (Calabresi, J., concurring) (“Emphatic dicta will and should be afforded more weight by later panels than casual dicta.”). This is especially true here because the parties and district court all appear to have viewed the test as controlling at trial. See Barclays Capital Inc. v. Theflyonthewall.com, 700 F.Supp.2d at 335. Further, even if NBA’s two iterations of the “extra element” test are confusing, no clearer understanding of the scope of non-preempted “hot news” misappropriation claims is achieved simply by identifying other factual differences between the instant case and INS. See ante at 901-06.

Thus, I would apply the NBA test to this case and reverse on the ground that the Firms failed to satisfy its direct competition requirement for a non-preempted claim.

c. The Firms Failed To Establish Direct Competition Between Their Recommendations and Fly’s Substantially Different Aggregate Product

In concluding that the Firms failed to establish a non-preempted “hot news” *913claim under the test identified in NBA, I rely on facts emphasized by the majority, namely, that Fly produces an aggregate product reporting many Firms’ Recommendations among other financial news, and attributing each Recommendation to its source, while the Firms each disseminate only their own Recommendations to clients who engage in a particular level of trading with the Firms. See ante at 901— 06. The majority, however, uses these facts to draw a bright line distinguishing between the Firms, who generate news, and Fly and other news aggregators, who “break” the news, with the former falling outside of hot-news protection. See ante at 902. I am not convinced that this distinction is determinative here because the Firms appear to play both roles. Not only do they generate their Recommendations, they then disseminate them, recouping the cost of generation through trading revenue. I am not prepared to foreclose the possibility of a “hot news” claim by a party who disseminates news it happens to create. I conclude simply that the facts emphasized by the majority preclude the Firms from stating a non-preempted “hot news” claim for a different reason derived from NBA: the Firms’ product and Fly’s newsfeed do not directly compete.

Although NBA turned on the plaintiffs failure to show free riding on and a sufficient threat to its services, the court there discussed the direct competition element in noting that the plaintiff had “compressefd] and confuse[d] three different informational products.” 105 F.3d at 853. Separating the NBA’s dissemination of live basketball games and copyrighted broadcasts from its collection and transmission of factual material about the games through a pager service, the court determined that only the latter might directly compete with the defendant’s product, another pager service providing facts about live games. See id. at 853-54 (noting “separate market for” pager service). In other words, only products in the “keenest” of competition satisfy the direct competition requirement for a non-preempted claim. INS, 248 U.S. at 221, 230, 39 S.Ct. 68 (stating that plaintiff and defendant newspaper companies were “in the keenest competition” in gathering and publishing news throughout United States).

In this case, I identify no clear error in the district court’s impressively thorough fact-finding. See Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d 42, 52 (2d Cir.2011) (applying clear error review to factual findings after bench trial). But reviewing legal determinations de novo, see id. at 51, I conclude that the direct competition element of NBA’s test was applied more broadly than warranted. Whatever Fly’s ultimate purpose or impact in distributing the Firms’ Recommendations, the critical consideration for purposes of identifying direct competition is the substantial similarity of the products in satisfying relevant market demand.

In concluding that direct competition was established, the district court observed that both the Firms and Fly disseminate “Recommendations to investors for their use in making investment decisions.” Barclays Capital Inc. v. Theflyonthewall.com, 700 F.Supp.2d at 339. Such a broad similarity between the companies’ overall goals does not constitute the substantial similarity required for direct competition. Even assuming that the Firms’ distribution of research reports is one of its “primary businesses,” each Firm distributes only its own Recommendations to investors most likely to follow its advice and place a trade through it. See id. at *914316-19.4 The Firms do not aggregate or distribute other Firms’ Recommendations. See id. at 317. To do so would interfere with the Firms’ business model, which is based on investors’ inclinations to trade with the Firm from which they received a Recommendation. See id. at 318-19. Indeed, the Firms limit full access to their research to clients who generate sufficient trading revenue. See id. at 319. By contrast, Fly does not produce any of its own recommendations or seek trading commissions. See id. at 322-24. Rather, it “collects] and publishes] financial news” to anyone interested in such information through a subscription service, the most lucrative aspect of which is the distribution of sixty-five firms’ Recommendations, with each Recommendation attributed to its source. Id. at 322-24.

It bears noting that, like the district court, I view Fly’s conduct as strong evidence of free-riding, or worse depending on how it came into possession of the Recommendations. See id. at 336-37. Although Fly expends some effort to gather and aggregate the Recommendations, Fly is usurping the substantial efforts and expenses of the Firms to make a profit without expending any time or cost to conduct research of its own. I cannot celebrate such practices, which allow Fly “to reap where it has not sown.” INS, 248 U.S. at 239, 39 S.Ct. 68. As the majority notes, however, such apparent unfairness does not control preemption analysis. See ante at 894-97. Although Fly free-rides on the Firms’ efforts, Fly’s attribution of aggregate Recommendations demonstrates the crucial difference between the businesses: while the Firms disseminate only their own Recommendations to select clients most likely to follow the advice and place trades with the Firms, Fly aggregates and disseminates sixty-five firms’ Recommendations and other financial information to anyone willing to pay for it without regard to whether clients accept or trade on particular Recommendations.

An example illustrates the distinction. Two firms might disseminate opposing Recommendations on the same stock. These two firms directly compete in attempting to convince clients to follow their Recommendation and place a trade. Fly, on the other hand, would presumably report both opinions (as well as scores of others) to its readers without regard to whether they trade on the information. Some investors may place a particular value on learning all Recommendations, and some people may have a general interest in learning such news even without wishing to invest. Thus, Fly’s product may directly compete with that of other financial news outlets, such as Dow Jones, that also seek to provide all Recommendations to anyone interested in such news. See Associated Press v. All Headline News Corp., 608 F.Supp.2d 454, 457-58, 461 (S.D.N.Y.2009) (holding that plaintiff news agency sufficiently pleaded “hot news” tort by alleging that defendant news service copied and distributed plaintiffs stories under defendant’s name). But Fly’s aggregate subscription product is sufficiently distinct from the Firms’ business model, which cannot be divorced from the trading market it targets, to preclude a finding of *915the direct competition required by NBA’s test.5

The district court observed that Fly intended its newsfeed to fulfill “demand for the original work” as evidenced by its recent distribution of the newsfeed through discount brokers, thereby creating the “final stage” of direct competition by driving away commission revenue. Barclays Capital Inc. v. Theflyonthewall.com, 700 F.Supp.2d at 339-40 (internal quotation marks omitted). The discount brokers, however, are simply one of many third-party distributors that disseminate Fly’s newsfeed. See id. at 324-25. While the discount brokers separately place trades, Fly does not endorse investment advice or seek commission revenue. Moreover, as the majority points out, even the Firms’ authorized clients are free to use discount brokers once they receive a Recommendation. See ante at 904-05. Thus, although some investors may use Fly’s newsfeed instead of paying for direct receipt of the Firms’ Recommendations, the overlap in potential clients does not make the products or their targeted markets sufficiently similar to satisfy NBA’s direct competition requirement for a non-preempted claim.

3. Conclusion

I join the court in deciding to affirm in part and vacate and remand in part the judgment in favor of the Firms. As to the decision to vacate, I must respectfully decline to join in the majority opinion. I conclude that the Firms’ “hot news” misappropriation claims are preempted by federal copyright law because the Firms cannot demonstrate direct competition with Fly as required by this court’s test in NBA, 105 F.3d at 845, 852-53. Whatever reservations I may have about that test’s ability to identify extra elements for a “hot news” misappropriation claim that are qualitatively different from the rights protected by federal copyright law, I cannot join the majority in dismissing the test as dictum. Further, because I think the Firms fail to satisfy even NBA’s test, I see no need to reach the same preemption conclusion by reference to other factual differences between this case and INS, 248 U.S. 215, 39 S.Ct. 68.

FLETCHER, Circuit Judge:

Actors George Wendt and John Ratzenberger appeal the district court’s grant of *809summary judgment in favor of Host International, Inc. (“Host”) and applicant in intervention Paramount Pictures Corporation (“Paramount”), dismissing their action for violations of the Lanham Act, 15 U.S.C. § 1125(a), and California’s statutory and common law right of publicity. We reverse.

I.OVERVIEW

Wendt and Ratzenberger argue that the district court erred in dismissing their action because they have raised issues of material fact as to whether Host violated their trademark and publicity rights by creating animatronic robotic figures (the “robots”) based upon their likenesses without their permission and placing these robots in airport bars modeled upon the set from the television show Cheers. They also appeal the district court’s orders excluding appellants’ survey evidence, barring presentation of expert testimony, and awarding Host and Paramount attorney’s fees. We have jurisdiction, 28 U.S.C. § 1291, and we reverse and remand for trial.

II.PROCEDURAL HISTORY

In Wendt v. Host, 1995 WL 115571 (9th Cir.1995) (“Wendt I ”), we reversed the first grant of summary judgment in this action and remanded. We held that appellants’ state law causes of action were not preempted by federal copyright law and that disputed issues of material fact precluded summary judgment because the district court’s comparison of photographs of appellants Wendt and Ratzenberger with photographs of the animatronic figures was not sufficient to resolve their claims under Cal. Civ.Code § 3344:

The question here is whether the three dimensional animatronic figures are sufficiently similar to plaintiffs to constitute their likenesses. Based on the limited record before us, it cannot be said as a matter of law that the figures are so dissimilar from plaintiffs that no reasonable trier of fact could find them to be ‘likenesses.’ That question must be determined by a comparison of the actual, three-dimensional entities.

1995 WL 115571 at *2. We concluded that this comparison must be decided without reference to the context in which the image appears. Id. (citing White v. Samsung Elec. Am., Inc., 971 F.2d 1395, 1397 (9th Cir.1992), cert. denied., 508 U.S. 951, 113 S.Ct. 2443, 124 L.Ed.2d 660 (1993)). We found that there were disputed issues of material fact concerning the appellants’ common law right of publicity claims because the similarity between appellants’ physical characteristics and those of the robots is disputed. Id. at *3. Finally, we held that the appellants’ claims for unfair competition under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), require the application of a “well settled eight factor test” to determine whether Host’s conduct has created a likelihood of confusion as to whether appellants were endorsing Host’s product. Id.

Upon remand, the district court granted summary judgment for a second time after an in-eourt inspection of the robots. It held that it could not “find, by viewing both the robotics and the live persons of Mr. Wendt and Mr. Ratzenberger, that there is any similarity at all ... except that one of the robots, like one of the plaintiffs, is heavier than the other ... The facial features are totally different.” The district court then awarded attorney’s fees to Host and Paramount pursuant to Cal. Civ.Code § 3344.

Appellants argue that despite the district court’s comparison of the animatronic figures and the appellants, dismissal was inappropriate because material issues of fact remain as to the degree to which the animatronic figures appropriate the appellants’ likenesses. Appellants claim that the district court erred in determining that the robots were not likenesses of the appellants because the “likeness” need not be identical or photographic. Further, they argue that the likeness determination is an issue for the jury to decide in this case. We agree.

III.ANALYSIS

We review a grant of summary judgment de novo. Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). We must determine, viewing-the evidence in the light most favorable to the *810nonmoving party, whether there are any genuine issues of material fact, and whether the district court correctly applied the relevant substantive law. Id. We are not to weigh the evidence or determine the truth of the matter, but only to determine whether there is a genuine issue for trial. Id. The district court’s rulings excluding damage evidence and expert testimony are governed by an abuse of discretion standard, and should not be reversed absent some prejudice. Masson v. New Yorker Magazine, Inc., 85 F.3d 1394, 1399 (9th Cir.1996). Our review is governed by the ‘law of the case’ doctrine, which prevents courts from “reconsidering an issue previously decided by the same court, or a higher court in the identical ease.” Securities Investor Protection Corp. v. Vigman, 74 F.3d 932, 937 (9th Cir.1996).

A. The Statutory Right of Publicity

California Civil Code § 3344 provides in relevant part:

[a]ny person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, ... for purposes of advertising or selling, ... without such person’s prior consent ... shall be liable for any damages sustained by the person or persons injured as a result thereof.

In White, 971 F.2d at 1397, we ruled that a robot with mechanical features was not a “likeness” under § 3344. However, we specifically held open the possibility that a manikin molded to Vanna White’s precise features, or one that was a caricature or bore an impressionistic resemblance to White might become a likeness for statutory purposes. Id. The degree to which these robots resemble, caricature, or bear an impressionistic resemblance to appellants is therefore clearly material to a claim of violation of Cal. Civ. Code § 3344. Summary judgment would have been appropriate upon remand only if no genuine issues of material fact concerning that degree of resemblance were raised by appellants. Fed.R.Civ.P. 56.

Despite the district court’s assertions that no reasonable jury could find that the robots are “similar in any manner whatsoever to Plaintiffs,” we respectfully disagree. Without making any judgment about the ultimate similarity of the figures to the appellants, we conclude from our own inspection of the robots that material facts exist that might cause a reasonable jury to find them sufficiently “like” the appellants to violate Cal. Civ.Code § 3344.

We reject appellees’ assertion that Fleet v. CBS, 50 Cal.App.4th 1911, 58 Cal. Rptr.2d 645 (1996) is new controlling authority that requires us to revisit the determination on first appeal that appellants’ § 3344 claims are not preempted by federal copyright law. Wendt I, 1995 WL 115571, at *1. Fleet is not controlling new authority on the preemption issue. It holds that an actor may not bring an action for misappropriation under Cal. Civ.Code § 3344 when the only claimed exploitation occurred through the distribution of the actor’s performance in a copyrighted movie. Id. at 651 (“Appellants may choose to call their claims misappropriation of right to publicity, but if all they are seeking is to prevent a party from exhibiting a copyrighted work they are making a claim equivalent to an exclusive right within the general scope of copyright.”) (internal quotations omitted).

Appellants here are not seeking to prevent Paramount from exhibiting its copyrighted work in the Cheers series. As we stated in Wendt I, their “claims are not preempted by the federal copyright statute so long as they ‘contain elements, such as the invasion of personal rights ... that are different in kind from copyright infringement.’ ” Wendt I, 1995 WL 115571 at * 1 (quoting Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1100 (9th Cir.1992)) (citing H.R.Rep. No. 1476, 94th Cong., 2d Sess. 132 (1976)). The Fleet court acknowledged that it simply found a fact-specific exception to the general rule that “as a general proposition section 3344 is intended to protect rights which cannot be copyrighted.” Fleet, 58 Cal.Rptr.2d at 649.

Appellants’ claims are not preempted by federal copyright law. Issues of material fact exist concerning the degree to which the robots are like the appellants. We reverse the grant of summary judgment on the claim under Cal. Civ.Code § 3344.

*811B. Common-Law Right of Publicity

California recognizes a common law right of privacy that includes protection against appropriation for the defendant’s advantage of the plaintiffs name or likeness. Eastwood v. Super. Ct. for Los Angeles County, 149 Cal.App.3d 409, 198 Cal.Rptr. 342, 347 (Cal.Ct.App.1983). The right to be protected against such appropriations is also referred to as the “right of publicity.” Id. A common law cause of action for appropriation of name or likeness may be pleaded by alleging 1) the defendant’s use of the plaintiffs identity; 2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; 3) lack of consent; and 4) resulting injury. Id. (citing Prosser, Law of Torts § 117, 804-07 (4th ed. 1971)).

The so-called right of publicity means in essence that the reaction of the public to name and likeness, which may be fortuitous or which may be managed and planned, endows the name and likeness of the person involved with commercially exploitable opportunities. The protection of name and likeness from unwarranted intrusion or exploitation is the heart of the law of privacy.

Lugosi v. Universal Pictures, 25 Cal.3d 813, 160 Cal.Rptr. 323, 603 P.2d 425, 431 (1979).

We have held that this common-law right of publicity protects more than the knowing use of a plaintiff’s name or likeness for commercial purposes that is protected by Cal. Civ.Code § 3344. It also protects against appropriations of the plaintiff’s identity by other means. See White, 971 F.2d at 1398 (“[a] rule which says that the right of publicity can be infringed only through the use of nine different methods of appropriating identity merely challenges the clever advertising strategist to come up with the tenth.”); see also Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 415 (9th Cir.1996) (common law right protects identity, which is more flexible than the statutory ‘laundry list’ of particular means of appropriation); Midler v. Ford Motor Co., 849 F.2d 460, 463-64 (9th Cir.1988) (concluding that there was a claim for violation under common law right of publicity, but not Cal. Civ.Code § 3344, for use of sound-alike singer in advertisement); Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821, 827 (9th Cir.1974) (concluding that there was a common-law claim from use of an identifiable race car in an advertisement, even though name or likeness of famous driver was not visible).

Appellees argue that the figures appropriate only the identities of the characters Norm and Cliff, to which Paramount owns the copyrights, and not the identities of Wendt and Ratzenberger, who merely portrayed those characters on television and retain no licensing rights to them. They argue that appellants may not claim an appropriation of identity by relying upon indicia, such as the Cheers Bar set, that are the property of, or licensee of, a copyright owner. Sinatra v. Goodyear Tire & Rubber Co., 435 F.2d 711, 716 (9th Cir.1970).

Appellants freely concede that they retain no rights to the characters Norm and Cliff; they argue that the figures, named “Bob” and “Hank,” are not related to Paramount’s copyright of the creative elements of the characters Norm and Cliff. They argue that it is the physical likeness to Wendt and Ratzenberger, not Paramount’s characters, that has commercial value to Host.

While it is true that appellants’ fame arose in large part through their participation in Cheers, an actor or actress does not lose the right to control the commercial exploitation of his or her likeness by portraying a fictional character. Lugosi, 160 Cal. Rptr. 323, 603 P.2d at 431.

Appellants have raised genuine issues of material fact concerning the degree to which the figures look like them. Because they have done so, appellants have also raised triable issues of fact as to whether or not appellees sought to appropriate their likenesses for their own advantage and whether they succeeded in doing so. See Midler, 849 F.2d at 463. The ultimate issue for the jury to decide is whether the defendants are commercially exploiting the likeness of the figures to Wendt and Ratzenberger intending to engender profits to their enterprises. See Eastwood, 198 Cal.Rptr. at 349 (“The first step toward selling a product or service is to *812attract the consumer’s attention.”) We therefore reverse the grant of summary judgment on the common law right of publicity claim.

C. Unfair Competition

Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)) prohibits, inter alia, the use of any symbol or device which is likely to deceive consumers as to the association, sponsorship, or approval of goods or services by another person. The appellants’ claim is for false endorsement-that by using an imitation of their unique physical characteristics, Host misrepresented their association with and endorsement of the Cheers bars concept.

In Waits, 978 F.2d at 1110, we held such a claim actionable under § 43(a):

[a] false endorsement claim based on the unauthorized use of a celebrity’s identity ... alleges the misuse of a trademark, i.e., a symbol or device such as a visual likeness, vocal imitation, or other uniquely distinguishing characteristic, which is likely to confuse consumers as to the plaintiffs sponsorship or approval of the product.

In Wendt I we held that appellants would have a claim if “Host’s conduct had created a likelihood of confusion as to whether plaintiffs were endorsing Host’s product.” 1995 WL 115571 at *3. In order to determine whether or not such confusion is likely to occur, we referred to a “well settled eight factor test” to be applied to celebrity endorsement cases, Newton v. Thomason, 22 F.3d 1455, 1462 (9th Cir.1994). This test requires the consideration of:

1) the strength of the plaintiffs mark;1

2) relatedness of the goods;

3) similarity of the marks;

4) evidence of actual confusion;

5) marketing channels used;

6) likely degree of purchaser care;

7) defendant’s intent in selecting the mark;

8) likelihood of expansion of the product lines.

Id. at 1462 (citing AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir.1979)).

In Wendt I we concluded that one of the primary factors of this test was the ‘similarity of the marks’ and because there was a disputed issue of material fact as to that issue, summary judgment was inappropriate on this claim.

On remand, however, the district court simply compared the robots with the appellants in the courtroom and awarded judgment because there was “no similarity at all.” The district court erred in failing independently to analyze any of the other relevant factors to determine whether or not there was a likelihood of confusion to consumers as to whether appellants sponsored, approved of, or were otherwise associated with the Cheers bars.

The Lanham Act’s ‘likelihood of confusion’ standard is predominantly factual in nature. Summary judgment is inappropriate when a jury could reasonably conclude that most of the factors weigh in a plaintiff’s favor. Abdul-Jabbar, 85 F.3d at 413 (9th Cir.1996). See also MDT Corporation v. New York Stock Exchange, Inc., 858 F.Supp.1028, 1032 (C.D.Cal.1994) (summary judgment disfavored in trademark cases because the ultimate issue of likelihood of confusion is so inherently factual).

Application of these factors indicates that the district court erred in rejecting appellants’ Lanham Act claim at the summary judgment stage because a jury could reasonably conclude that most of the factors weigh in appellants’ favor. Wendt and Ratzenberger were principal players on Cheers, a popular television show. They are clearly well-known among the target customers of Host’s Cheers bars. For the purposes of this analysis, a jury could reasonably conclude that their mark is strong.

For the same reason, their ‘goods’ (their skill and fame as actors) are obviously related to Host’s ‘goods’ (the products sold in the Cheers bars and the bars themselves) even if they are not strictly competitive. The issue *813is whether a consumer would be confused as to Wendt and Ratzenberger’s association with or sponsorship of Host’s bars. See White, 971 F.2d at 1400 (“In cases concerning confusion over celebrity endorsement, the plaintiffs ‘goods’ concern the reasons for or source of the plaintiffs fame.”) The source of their fame and the Host bars are identical: the Cheers television series. A jury could conclude that this factor weighs in appellants’ favor because it would be reasonable for a customer to be confused as to the nature of Wendt and Ratzenberger’s association with Host’s Cheers bars and the goods sold there.

The third factor, the similarity of the marks, is the primary issue in dispute. Because appellants have raised triable issues of material fact concerning the degree to which the robots resemble the appellants, a reasonable jury might find that this factor weighs in appellants’ favor. Under the Lanham Act, in camera inspection is not sufficient; the district court must view the marks “as they appear in the marketplace.” E & J Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1291 (9th Cir.1992).

Appellants presented evidence of actual confusion, the fourth factor. Both Ratzenberger and Wendt stated in their declarations that they have been approached by members of the public who commented on the similarity between the appellants and the robots at the Cheers airport bars: “The usual comment is some variation on ‘Hey George, I just had a drink with you in Kansas City.’ ” They also submitted evidence of consumer confusion to the district court prior to summary judgment in the form of survey evidence. The court rejected this evidence as “not a good survey.” For reasons detailed below, this evidence should not have been excluded. Sufficient evidence exists by which a reasonable jury might infer actual consumer confusion.

The fifth factor, marketing channels used, weighs in the appellants’ favor. The allegation is that Host is appropriating appellants’ likenesses because the target audience of the Cheers bars are customers who are fans of the television series. Such a similarity in marketing channels suggests that there is at least a likelihood of consumer confusion.

The sixth factor, likely degree of purchaser care, weighs in favor of appellants as well. Consumers are not likely to be particularly careful in determining who endorses or is affiliated with an airport bar in which they might purchase only a single beverage. They will be even less likely to scrutinize the source of the animatronic figures which are not for sale, but are used instead to attract patrons to the bars. This low degree of care makes confusion of sponsorship likely. See White, 971 F.2d at 1400 (“consumers are not likely to be particularly careful in determining who endorses VCR’s, making confusion as to their endorsement more likely.”)

The seventh factor is defendant’s intent in selecting the mark. Appellants have alleged facts that could give rise to an inference that Host intended to confuse customers as to Wendt and Ratzenberger’s sponsorship or endorsement of the Cheers bars by creating robots with their physical characteristics. See AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 354 (9th Cir.1979) (“When the alleged infringer knowingly adopts a mark similar to another’s, reviewing courts presume that the defendant can accomplish his purpose: that is, that the public will be deceived.”). In their opposition to summary judgment appellants submitted evidence that Host intentionally designed the animatronic figures to resemble Wendt and Ratzenberger and that it recognized from the outset that the value of the association with Wendt and Ratzenberger themselves was “a major drawing card of the Cheers concept.” After being advised that appellants would not agree to the use of their likenesses, Host altered the robots cosmetically, named them “Hank” and “Bob,”2 and refused to recast them into a “friendly neighborhood couple,” as they were advised to do by Paramount. Based on this evidence, an inference can be raised that Host intended to exploit the appellants’ celebrity by confusion as to the similarity between the figures and the appellants.

We have found that the eighth factor, likelihood of expansion of the product lines, “does not appear apposite to a celebrity en*814dorsement case,” White, 971 F.2d at 1401. Here, however, Ratzenberger has offered evidence that he would like to appear in advertisements for beer and has declined offers from small breweries in order to be available to a large brewery. “Inasmuch as a trademark owner is afforded greater protection against competing goods, a ‘strong possibility’ that either party may expand his business to compete with the other will weigh in favor of finding that the present use is infringing.” Sleekcraft, 599 F.2d at 354 (citing Restatement of Torts § 731(b)). This factor therefore weighs in appellants’ favor as the potential exists that in the future Ratzenberger’s endorsement of other beers would be confused with his alleged endorsement of the beers sold at'Host’s bars.

A reasonable jury could conclude that most of the factors weigh in appellants’ favor and that Host’s alleged conduct creates at least the likelihood of consumer confusion. Whether appellants’ Lanham Act claim should succeed, of course, is a matter for the jury. Accordingly, we reverse the dismissal of the unfair competition claim and remand.

D.Exclusion of Survey Evidence

In their opposition to Paramount’s summary judgment motion, appellants offered into evidence the results of a consumer survey taken in the vicinity of the Cheers bars at the Cleveland and Kansas City airports. The district court refused to admit the evidence, saying that the evidence was “not a good survey.”

As the record stood, the refusal was an abuse of discretion. In trademark cases, surveys are to be admitted as long as they are conducted according to accepted principles and are relevant. E & J Gallo Winery, 967 F.2d at 1280; see also Prudential Ins. Co. of Am. v. Gibraltar Fin. Corp., 694 F.2d 1150, 1156 (9th Cir.1982). Challenges to survey methodology go to the weight given the survey, not its admissibility. Prudential Ins., 694 F.2d at 1156. However, because of the paucity of the record, upon remand, the parties should have the opportunity respectively to lay a foundation for the admission of the survey or to challenge the adequacy of the foundation.

E. Exclusion of Expert Testimony

Prior to the first appeal in this ease the district court issued a Preclusion Order barring the introduction of expert testimony as a sanction against appellants’ former counsel for failure to disclose damage evidence and for being late disclosing experts. Upon remand, the district court denied appellants’ request that it vacate its order.

The initial Preclusion Order was issued on August 9, 1993 as a sanction against appellants’ former counsel. At that time, counsel’s failure to comply with discovery rules potentially prejudiced Host and Paramount’s ability to prepare adequately for trial. Today, that is not so. Both parties now have ample opportunity to begin the expert disclosure procedure anew.

Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir.1990), requires us to determine whether a sanction is proper under a five-factor test analyzing: 1) the public’s interest in expeditious resolution of litigation; 2) the court’s need to manage its docket; 3) the risk of prejudice to the defendants; 4) the public policy favoring disposition of cases on their merits; 5) the availability of less drastic sanctions. We conclude that under this test, the Preclusion Order is no longer proper. Less drastic sanctions are available and the defendants are no longer prejudiced by the actions of appellants’ former counsel. We grant appellants’ request to vacate the Preclusion Order upon remand. However, the district court, may, in its discretion, impose reasonable monetary sanctions upon appellants’ former counsel for failure to comply with discovery rules.

F. Attorney’s Fees

Because we reverse the grant of summary judgment under Cal. Civ.Code § 3344, we reverse the grant of attorney’s fees to Host and Paramount and deny their requests for attorney’s fees on appeal.

IV. CONCLUSION

The grant of summary judgment is reversed and the case is remanded to the dis*815trict court for trial. The admission of the survey evidence should be reconsidered at trial. The Preclusion Order is vacated and appropriate sanctions other than preclusion may be considered. The grant of attorney’s fees is reversed.

REVERSED and REMANDED.

ARNOLD, Circuit Judge.

C.B.C. Distribution and Marketing, Inc., brought this action for a declaratory judgment against Major League Baseball Advanced Media, L.P., to establish its right to use, without license, the names of and information about major league baseball players in connection with its fantasy baseball products. Advanced Media counterclaimed, maintaining that CBC’s fantasy baseball products violated rights of publicity belonging to major league baseball players and that the players, through their association, had licensed those rights to Advanced Media, the interactive media and Internet company of major league baseball. The Major League Baseball Players Association intervened in the suit, joining in Advanced Media’s claims and further asserting a breach of contract claim against CBC. The district court granted summary judgment to CBC, see C.B.C. Distrib. and Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 443 F.Supp.2d 1077 (E.D.Mo.2006), and Advanced Media and the Players Association appealed. We affirm.

I.

CBC sells fantasy sports products via its Internet website, e-mail, mail, and the telephone. Its fantasy baseball products incorporate the names along with performance and biographical data of actual major league baseball players. Before the commencement of the major league baseball season each spring, participants form their fantasy baseball teams by “drafting” players from various major league baseball teams. Participants compete against other fantasy baseball “owners” who have also drafted their own teams. A participant’s success, and his or her team’s success, depends on the actual performance of the *821fantasy team’s players on their respective actual teams during the course of the major league baseball season. Participants in CBC’s fantasy baseball games pay fees to play and additional fees to trade players during the course of the season.

From 1995 through the end of 2004, CBC licensed its use of the names of and information about major league players from the Players Association pursuant to license agreements that it entered into with the association in 1995 and 2002. The 2002 agreement, which superseded in its entirety the 1995 agreement, licensed to CBC “the names, nicknames, likenesses, signatures, pictures, playing records, and/or biographical data of each player” (the “Rights”) to be used in association with CBC’s fantasy baseball products.

In 2005, after the 2002 agreement expired, the Players Association licensed to Advanced Media, with some exceptions, the exclusive right to use baseball players’ names and performance information “for exploitation via all interactive media.” Advanced Media began providing fantasy baseball games on its website, MLB.com, the official website of major league baseball. It offered CBC, in exchange for a commission, a license to promote the MLB.com fantasy baseball games on CBC’s website but did not offer CBC a license to continue to offer its own fantasy baseball products. This conduct by Advanced Media prompted CBC to file the present suit, alleging that it had “a reasonable apprehension that it will be sued by Advanced Media if it continues to operate its fantasy baseball games.”

The district court granted summary judgment to CBC. It held that CBC was not infringing any state-law rights of publicity that belonged to major league baseball players. C.B.C., 443 F.Supp.2d at 1106-07. The court reasoned that CBCs fantasy baseball products did not use the names of major league baseball players as symbols of their identities and with an intent to obtain a commercial advantage, as required to establish an infringement of a publicity right under Missouri law (which all parties concede applies here). Id. at 1085-89. The district court further held that even if CBC were infringing the players’ rights of publicity, the first amendment preempted those rights. Id. at 1091-1100. The court rejected, however, CBC’s argument that federal copyright law preempted the rights of publicity claim. Id. at 1100-03. Finally, the district court held that CBC was not in violation of the no-use and no-contest provisions of its 2002 agreement with the Players Association because “the strong federal policy favoring the full and free use of ideas in the public domain as manifested in the laws of intellectual property prevails over [those] contractual provisions” (internal quotations omitted). Id. at 1106-07.

Because this appeal is from the district court’s grant of summary judgment, our review is de novo, and we apply “the same standards as the district court and view[ ] the evidence in the light most favorable to the nonmoving party.” Travelers Prop. Cas. Co. of Am. v. General Cas. Ins. Co., 465 F.3d 900, 903 (8th Cir.2006). Summary judgment is appropriate only if “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We also review de novo the district court’s interpretation of state law, including its interpretation of Missouri law regarding the right of publicity. See Hammer v. City of Osage Beach, 318 F.3d 832, 841 (8th Cir.2003). When state law is ambiguous, we must “predict how the highest court of that state would *822resolve the issue.” Clark v. Kellogg Co., 205 F.3d 1079, 1082 (8th Cir.2000).

II.

A.

An action based on the right of publicity is a state-law claim. See Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 566, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977). In Missouri, “the elements of a right of publicity action include: (1) That defendant used plaintiffs name as a symbol of his identity (2) without consent (3) and with the intent to obtain a commercial advantage.” Doe v. TCI Cablevision, 110 S.W.3d 363, 369 (Mo.2003), cert. denied, 540 U.S. 1106, 124 S.Ct. 1058, 157 L.Ed.2d 892 (2004). The parties all agree that CBC’s continued use of the players’ names and playing information after the expiration of the 2002 agreement was without consent. The district court concluded, however, that the evidence was insufficient to make out the other two elements of the claim, and we address each of these in turn.

With respect to the symbol-of-identity element, the Missouri Supreme Court has observed that “ ‘the name used by the defendant must be understood by the audience as referring to the plaintiff.’ ” The state court had further held that “[i]n resolving this issue, the fact-finder may consider evidence including ‘the nature and extent of the identifying characteristics used by the defendant, the defendant’s intent, the fame of the plaintiff, evidence of actual identification made by third persons, and surveys or other evidence indicating the perceptions of the audience.’ ” Doe, 110 S.W.3d at 370 (quoting Restatement (Third) of Unfair Competition § 46 cmt. d).

Here, we entertain no doubt that the players’ names that CBC used are understood by it and its fantasy baseball subscribers as referring to actual major league baseball players. CBC itself admits that: In responding to the appellants’ argument that “this element is met by the mere confirmation that the name used, in fact, refers to the famous person asserting the violation,” CBC stated in its brief that “if this is all the element requires, CBC agrees that it is met.” We think that by reasoning that “identity,” rather than “mere use of a name,” “is a critical element of the right of publicity,” the district court did not understand that when a name alone is sufficient to establish identity, the defendant’s use of that name satisfies the plaintiffs burden to show that a name was used as a symbol of identity.

It is true that with respect to the “commercial advantage” element of a cause of action for violating publicity rights, CBC’s use does not fit neatly into the more traditional categories of commercial advantage, namely, using individuals’ names for advertising and merchandising purposes in a way that states or intimates that the individuals are endorsing a product. Cf. Restatement (Third) of Unfair Competition § 47 cmt. a, b. But the Restatement, which the Missouri Supreme Court has recognized as authority in this kind of case, see Doe, 110 S.W.3d at 368, also says that a name is used for commercial advantage when it is used “in connection with services rendered by the user” and that the plaintiff need not show that “prospective purchasers are likely to believe” that he or she endorsed the product or service. Restatement (Third) of Unfair Competition § 47 & cmt. a. We note, moreover, that in Missouri, “the commercial advantage element of the right of publicity focuses on the defendant’s intent or purpose to obtain a commercial benefit from use of the plaintiffs identity.” Doe, 110 S.W.3d at 370-71. Because we think *823that it is clear that CBC uses baseball players’ identities in its fantasy baseball products for purposes of profit, we believe that their identities are being used for commercial advantage and that the players therefore offered sufficient evidence to make out a cause of action for violation of their rights of publicity under Missouri law.

B.

CBC argues that the first amendment nonetheless trumps the right-of-publicity action that Missouri law provides. Though this dispute is between private parties, the state action necessary for first amendment protections exists because the right-of-publicity claim exists only insofar as the courts enforce state-created obligations that were “never explicitly assumed” by CBC. See Cohen v. Cowles Media Co., 501 U.S. 663, 668, 111 S.Ct. 2513, 115 L.Ed.2d 586 (1991).

The Supreme Court has directed that state law rights of publicity must be balanced against first amendment considerations, see Zacchini v. Scripps-Howard Broad., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977), and here we conclude that the former must give way to the latter. First, the information used in CBC’s fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone. It is true that CBC’s use of the information is meant to provide entertainment, but “[sjpeech that entertains, like speech that informs, is protected by the First Amendment because ‘[t]he line between the informing and the entertaining is too elusive for the protection of that basic right.’” Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 969 (10th Cir.1996) (quoting Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840 (1948)); see also Zacchini, 433 U.S. at 578, 97 S.Ct. 2849. We also find no merit in the argument that CBC’s use of players’ names and information in its fantasy baseball games is not speech at all. We have held that “the pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games” is speech entitled to first amendment protection. See Interactive Digital Software Ass’n v. St. Louis County, Mo., 329 F.3d 954, 957 (8th Cir.2003). Similarly, here CBC uses the “names, nicknames, likenesses, signatures, pictures, playing records, and/or biographical data of each player” in an interactive form in connection with its fantasy baseball products. This use is no less expressive than the use that was at issue in Interactive Digital.

Courts have also recognized the public value of information about the game of baseball and its players, referring to baseball as “the national pastime.” Cardtoons, 95 F.3d at 972. A California court, in a case where Major League Baseball was itself defending its use of players’ names, likenesses, and information against the players’ asserted rights of publicity, observed, “Major league baseball is followed by millions of people across this country on a daily basis ... The public has an enduring fascination in the records set by former players and in memorable moments from previous games ... The records and statistics remain of interest to the public because they provide context that allows fans to better appreciate (or deprecate) today’s performances.” Gionfriddo v. Major League Baseball, 94 Cal.App.4th 400, 411, 114 Cal.Rptr.2d 307 (2001). The Court in Gionfriddo concluded that the “recitation and discussion of factual data concerning the athletic performance of [players on Major League Baseball’s website] command a substantial public inter*824est, and, therefore, is a form of expression due substantial constitutional protection.” Id. We find these views persuasive.

In addition, the facts in this case barely, if at all, implicate the interests that states typically intend to vindicate by providing rights of publicity to individuals. Economic interests that states seek to promote include the right of an individual to reap the rewards of his or her endeavors and an individual’s right to earn a living. Other motives for creating a publicity right are the desire to provide incentives to encourage a person’s productive activities and to protect consumers from misleading advertising. See Zacchini, 433 U.S. at 573, 576, 97 S.Ct. 2849; Cardtoons, 95 F.3d at 973. But major league baseball players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsements and sponsorship arrangements. Nor is there any danger here that consumers will be misled, because the fantasy baseball games depend on the inclusion of all players and thus cannot create a false impression that some particular player with “star power” is endorsing CBC’s products.

Then there are so-called non-monetary interests that publicity rights are sometimes thought to advance. These include protecting natural rights, rewarding celebrity labors, and avoiding emotional harm. See Cardtoons, 95 F.3d at 973. We do not see that any of these interests are especially relevant here, where baseball players are rewarded separately for their labors, and where any emotional harm would most likely be caused by a player’s actual performance, in which case media coverage would cause the same harm. We also note that some courts have indicated that the right of publicity is intended to promote only economic interests and that noneco-nomic interests are more directly served by so-called rights of privacy. See, e.g., id. at 967; Gionfriddo, 94 Cal.App.4th at 409, 114 Cal.Rptr.2d 307 (2001); see also Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866, 868 (2d Cir.1953). For instance, although the court in Cardtoons, 95 F.3d at 975-76, conducted a separate discussion of noneconomic interests when weighing the countervailing rights, it ultimately concluded that the non-economic justifications for the right of publicity were unpersuasive as compared with the interest in freedom of expression. “Publicity rights ... are meant to protect against the loss of financial gain, not mental anguish.” Id. at 976. We see merit in this approach.

Because we hold that CBC’s first amendment rights in offering its fantasy baseball products supersede the players’ rights of publicity, we need not reach CBC’s alternative argument that federal copyright law preempts the players’ state law rights of publicity.

III.

We come finally to the breach of contract issue. The 2002 contract between the Players Association and CBC specifically provided: “It is understood and agreed that [the Players Association] is the sole and exclusive holder of all right, title and interest in and to the Rights.” CBC undertook not to “dispute or attack the title or any rights of Players’ Association in and to the Rights and/or the Trademarks or the validity of the license granted,” either during or after the expiration of the agreement (the no-challenge provision). CBC also agreed that, upon expiration or termination of the contract, it would “refrain from further use of the Rights and/or the Trademarks or any further reference to them, either directly or indirectly” (the no-use provision). The Players Association maintains that the no-challenge and no-use provisions of the 2002 *825agreement are fatal to CBC’s claim. We disagree.

In holding the no-use and no-challenge provisions unenforceable as against public policy, the district court applied a Supreme Court decision dealing with patents. In that case, the Supreme Court held that the doctrine of licensee estoppel (under which a licensee is estopped from contesting the validity of its license, see Idaho Potato Comm’n v. M & M Produce Farm & Sales, 335 F.3d 130,135 (2d Cir.2003), cert. denied, 541 U.S. 1027, 124 S.Ct. 2066, 158 L.Ed.2d 642 (2004)), must give way when the “strong federal policy favoring the full and free use of ideas in the public domain” contained in federal patent law outweighs the “competing demands ... of contract law.” Lear, Inc. v. Adkins, 395 U.S. 653, 674, 675, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969). The Lear balancing approach has been applied to other areas of federal intellectual property law, see Idaho Potato, 335 F.3d at 137-39 (certification marks); Beer Nuts, Inc. v. King Nut Co., 477 F.2d 326, 328-29 (6th Cir.1973), cert. denied, 414 U.S. 858, 94 S.Ct. 66, 38 L.Ed.2d 108 (1973) (trademarks); see also Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1200-01 (7th Cir.1987) (copyright). The district court’s application of the Lear principles to a state law right-of-publicity action, however, was unique so far as we can determine.

We do not reach the issue of whether Lear is applicable here, though, because we believe that the contested contract terms are unenforceable for a different reason. We first note that in its brief, CBC argued that it should be relieved of its no-use and no-challenge obligations because the Players Association breached a warranty contained in § 1(b) of the 2002 agreement. Section 1(b) of the agreement provides that “[the Players Association] represents and warrants that it has the authority to grant the rights licensed herein.” CBC argued that this was a warranty of title in the players’ publicity rights and that the Players Association breached this warranty, either because the players did not have publicity rights or because CBC’s first amendment rights superseded any such publicity rights. We find this argument meritless: Section 1(b) is not a warranty of title, it is merely a warranty that the Players Association is the agent of the players. That warranty was not breached.

Although the parties did not cite to it in their briefs, the agreement does contain what we believe is a warranty of title not in § 1(b), but in § 8(a). The agreement provides that its interpretation will be governed by New York law. In New York, a contractual warranty is defined as “ ‘an assurance by one party to a contract of the existence of a fact upon which the other party may rely.’ ” CBS Inc. v. Ziff-Davis Publ’g Co., 75 N.Y.2d 496, 503, 554 N.Y.S.2d 449, 553 N.E.2d 997, 1000 (1990) (quoting Metropolitan Coal Co. v. Howard, 155 F.2d 780, 784 (2d Cir.1946) (Hand, J.)). Section 8(a) of the agreement provides that the Players Association “is the sole and exclusive holder of all right, title and interest” in and to the names and playing statistics of virtually all major league baseball players. This is quite obviously a representation or warranty that the Players Association did in fact own the state law publicity rights at issue here. For the reasons given above, the Players Association did not have exclusive “right, title and interest” in the use of such information, and it therefore breached a material obligation that it undertook in the contract. CBC is thus relieved of the obligations that it undertook, and the Players Association cannot enforce the contract’s no-use and no-challenge provisions against CBC.

IV.

For the foregoing reasons, the district court’s grant of summary judgment to CBC is affirmed.

*826COLLOTON, Circuit Judge,

dissenting.

I agree with the court’s discussion of the right of publicity in Missouri and the application of the First Amendment in this context. I would resolve the contractual issues differently, however, and I therefore respectfully dissent.

Advanced Media and the Major League Baseball Players Association (“MLBPA”) contend that CBC has violated two provisions of the applicable License Agreement as set forth in the majority opinion — the “no-challenge” provision and the “no-use” provision. CBC does not really dispute that it violated the restrictions, but it contends that the contractual provisions are unenforceable. I disagree with the court’s conclusion, sua sponte, that the provisions are unenforceable because MLBPA breached a warranty set forth in section 8(a) of the agreement.

Section 8(a) appears under a heading “Ownership of Rights.” It provides as follows: “It is understood and agreed that MLBPA is the sole and exclusive holder of all right, title and interest in and to the Rights and/or Trademarks for the duration of this Agreement.” Given the court’s resolution of issues concerning the right of publicity and the First Amendment, section 8(a) wins the day for CBC only if it is a warranty by MLBPA that CBC does not have rights under the First Amendment to use the players’ names and statistics in its fantasy baseball games.

Assuming that section 8(a) does address CBC’s constitutional rights (as opposed merely to the players’ state-law rights of publicity, which are accurately represented), and assuming that one party’s prediction about the constitutional rights of another party is the sort of “fact” that can be warranted under New York law, section 8(a) does not purport to make such a warranty. The provision states that the parties “agree” that MLPBA is the sole and exclusive holder of all right, title and interest in and to the Rights. CBC surely can “agree,” as a matter of good business judgment, to bargain away any uncertain First Amendment rights that it may have in exchange for the certainty of what it considers to be an advantageous contractual arrangement. See Paragould Cablevision v. City of Paragould, 930 F.2d 1310, 1315 (8th Cir.1991). That CBC later decided it did not need a license, and that it preferred instead to litigate the point, does not relieve the company of its contractual obligation. See Heath v. A.B. Dick Co., 253 F.2d 30, 34-35 (7th Cir.1958).

I also do not believe the district court’s grant of summary judgment invalidating the no-use and no-contest provisions can be sustained on the grounds actually raised by CBC. I agree with the court that MLBPA has not breached the warranty set forth in section 1(b) of the agreement. And I would not adopt the district court’s conclusion that the Supreme Court’s decision in Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969), should be applied to declare the no-use and no-contest provisions unenforceable as against public policy. Lear held that state contract law establishing the doctrine of licensee estoppel in a patent case was preempted where its enforcement would significantly frustrate “overriding federal policies” embodied in the federal patent laws. The Lear approach to preemption has been extended only to areas where there are comparable federal policies derived from federal statutes that justify the preemption of state law. In this case, there is no federal statute that addresses state-law contract obligations with respect to the right of publicity, and no indication that Congress sought to abrogate contracts in this area that are otherwise enforceable under state law. I would not fashion a rule of federal common law that *827abrogates these freely negotiated contractual provisions. See Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1200 (7th Cir.1987).

For these reasons, I would reverse the district court’s grant of summary judgment in favor of CBC.