The court dismissed all but the copyright claim due to failure to state a claim and preemption.
When a marketing firm allegedly lifted a flood-control company's product photos to build a website for a business tied to a defendant already under a permanent injunction, the flood-control company sued. The court held that the flood-control company’s state-law claims for deceptive trade practices, unjust enrichment, and civil conspiracy are preempted by the Copyright Act because each rest on the same copying and display of photographs. The court also held that the Lanham Act claims are barred by Dastar, because they would extend perpetual protection to images that belong, if anywhere, under copyright law. The court sustained the copyright infringement claim and rejected a shotgun-pleading challenge but dismissed the browsewrap breach of contract claim without prejudice, finding the allegations about the website's terms too conclusory and an underlined hyperlink insufficient to show notice (Garrison Systems, LLC v. Guerrilla Marketing For Small Businesses, Inc., No. 2:26-cv-00389-SPC-KRH (M.D. Fla. Oct. 13, 2026)).
Background. Garrison Systems designs, manufactures, sells, and installs flood control systems, and markets them on its website using photographs of the products and their use. It holds five copyright registrations covering some of those photos. According to the First Amended Complaint, the company previously obtained a permanent injunction in 2025 against Robert Waring and Floodwater Pros, Inc. for using similar materials. That injunction barred them from using, posting, or displaying Garrison's photographs and trade dress, among other things.
The company alleges that Waring and others then sought to circumvent the injunction. Waring dissolved Floodwater Pros, whose assets eventually passed to Fortress Flood Protection Inc. He then formed RWFWP, Inc., which later applied for a fictitious name registration under "FLOOD WATER PROS." These entities allegedly hired Guerrilla Marketing and its principle to build Fortress's website, which sold flood control systems similar to Garrison's. In doing so, Guerrilla Marketing allegedly copied Garrison's photos from its website or through a Google search. Garrison's site contained hyperlinked, underlined Terms of Service & Sale on every page, which, by their terms, prohibited reproducing or exploiting site content without permission and using content for unlawful purposes.
The plaintiff sued for copyright infringement, false designation of origin/unfair competition, false advertising, conspiracy, unjust enrichment, violation of the Florida Deceptive and Unfair Practices Act, and breach of contract.
Shotgun pleading. Defendants first argued the complaint was a shotgun pleading because it lumped defendants together. The court acknowledged the category of shotgun pleading at issue, asserting multiple claims against multiple defendants without specifying who is responsible for which acts, but explained that the defect is fatal only where it deprives a defendant of adequate notice. Here, the complaint specifically alleged that Guerrilla Marketing and Ogden were hired to develop Fortress's website and copied and saved Garrison's images for use in advertising. That the complaint made similar allegations against other defendants did not undermine notice, and the court declined to dismiss on this ground.
Preemption. The court next applied the Eleventh Circuit's two-part preemption test under 17 U.S.C. § 301(a): whether the right falls within the subject matter of copyright under sections 102 and 103, and whether it is equivalent to the exclusive rights under section 106, meaning there is no qualitatively different "extra element." The court treated the first prong as satisfied because Garrison offered no meaningful argument on it.
The court first clarified that preemption reaches only state statutory and common law claims, so the Lanham Act counts could not be preempted.
Count II (FDUTPA) was preempted. The claim rested on the defendants copying Garrison's photos and presenting them as if the products were their own, which the court characterized as the core of section 106's reproduction and display rights. The possibility that customers would be confused about the source did not supply an extra element. The court cited several Florida federal decisions dismissing similar claims.
Count V (unjust enrichment) was preempted for similar reasons. The alleged profits and reputational gains from misappropriating the images amounted to no more than reproduction and display and holding out the photos as Defendants' own product did not add a qualitatively different element.
Count VII (civil conspiracy) was likewise preempted. Garrison alleged broadly that all defendants agreed to commit the unlawful acts described in the complaint. Because the heart of the case is alleged unauthorized copying, the court reasoned that the conspiracy claim is in substance a copyright claim, and copyright law already permits vicarious liability. The court cited decisions from the Southern District of Florida and Northern District of Georgia reaching the same result.
Count VI (breach of contract) was not preempted. A valid contract supplies the extra element because it affects the rights between the contracting parties outside the Copyright Act.
Copyright infringement. The defendants argued that Garrison failed to plead when the infringement occurred, facts showing copying by these defendants, and damages. The court rejected each argument. Timing need not be pleaded to state a claim, and although registration must precede infringement under 17 U.S.C. § 411(a), that argument is better suited to summary judgment. The defendants cited no authority dismissing a claim for failure to plead damages, and in any event, Garrison alleged lost sales, lost licensing fees, and harm to goodwill and reputation. On copying, the complaint alleged that Guerrilla Marketing copied and saved images from Garrison's website and used them in marketing materials, which the court deemed sufficient at the pleading stage.
Lanham Act claims. Counts III (false designation of origin) and IV (false advertising) were dismissed with prejudice. The court found that the claims were directed at the same conduct underlying the copyright claim, the unlawful copying and presentation of copyrighted images on another website. Regardless of which subsection of Section 43(a)(1) Garrison invoked, extending Lanham Act protection to these photographs rather than tangible goods would create a perpetual copyright, which Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), forbids. Garrison argued Dastar is limited to authorship claims, sales of goods, and false designation claims, but the court found it immaterial that both goods and services were involved, noting that other courts have held the Lanham Act does not protect against unaccredited use of another's photographs in selling goods or services. Because the photos are protected, if at all, by the Copyright Act, the court found amendment futile.
Breach of contract. Count VI alleged that the defendants breached a browsewrap agreement by visiting Garrison's site and copying its content. Under Florida law, browsewrap agreements, which merely link to terms without requiring click-through acknowledgment, face a heightened burden and are enforceable only where the user had actual knowledge of the terms or the hyperlink was conspicuous enough to place a reasonably prudent person on inquiry notice. Calling the question a close one, the court found the allegations in the complaint that the Terms were "readily accessible" and "conspicuous" conclusory because they merely recite the legal standard. And the allegation of an underlined hyperlink at the bottom of every page was insufficient, since Florida appellate authority requires more than underscoring to set the link apart from surrounding text. The count was dismissed without prejudice.
The court therefore held that the FDUTPA, civil conspiracy, and unjust enrichment claims were preempted; the breach of contract claim dismissed for failure to state a claim, and the false designation of origin and false advertising claims barred by Dastar. The only claim remaining in the suit is the copyright infringement claim.
The Case is No. 2:26-cv-00389-SPC-KRH.