Bulwer v. EchoNous, Inc.

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
BERNARD E. BULWER, M.D., 	)
)
Plaintiff, 	)
) 	Civil Action No.
v. 	) 	23-11097-BEM
)
ECHONOUS, INC., 	)
)
Defendant. 	)
_______________________________________)
MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
MURPHY, J.
Plaintiff Bernard E. Bulwer, M.D., has brought this action against Defendant EchoNous,
Inc., a medical technology corporation, for unjust enrichment and quantum meruit. 	Dr. Bulwer
alleges that EchoNous failed to compensate him for the expertise, services, and materials he
provided during the course of his affiliation with EchoNous. EchoNous now moves for summary
judgment, arguing that: (1) Dr. Bulwer’s claims are in part preempted by federal copyright law;
(2) Dr. Bulwer’s remaining claims are foreclosed by the parties’ Independent Contractor
Agreement; and (3) there is no genuine issue of material fact for trial. For the reasons set forth
below, EchoNous’s motion for summary judgment will be granted.
I. 	Background
A. 	Factual Background
Dr. Bulwer is an echocardiologist and medical illustrator who holds copyrights over a large
collection of over one million images and derivative works and many books. Dkt. 39 (Defendant
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EchoNous’s Statement of Undisputed Material Facts, or “DSOF”) ¶¶ 1, 5.1 	In March 2020,
Dr. Bulwer contacted the then-CEO of EchoNous, Kevin Goodwin, via LinkedIn and thereafter
began communicating with EchoNous employees regarding software used in EchoNous’s
ultrasound device, Kosmos. Id. ¶¶ 4, 6. On June 29, 2020, Dr. Bulwer, for the first time, emailed
a link to Goodwin and other EchoNous employees containing copyrighted medical images and
digital versions of one of Dr. Bulwer’s copyrighted books on echocardiography. Id. ¶¶ 7–8.
On September 17, 2020, Dr. Bulwer and Goodwin exchanged text messages, at the end of
which Dr. Bulwer stated, “I’ll set up an invoice for consultation-retainer@ 5k monthly, start date
Aug. 1[.]” 	Id. ¶ 13. 	EchoNous paid Dr. Bulwer’s invoices for $5,000 each month for the next
thirteen months. 	Id. ¶ 14. 	The parties dispute the exact nature of the services and materials
Dr. Bulwer provided to EchoNous during this period. Id. ¶ 15; Dkt. 49 ¶ 15.
Approximately one year later, on October 26, 2021, Dr. Bulwer and EchoNous entered into
an Independent Contractor Agreement (“ICA”). DSOF ¶¶ 16, 19. When he received the ICA from
EchoNous’s General Counsel, Dr. Bulwer responded that he was “happy with the document, and
w[ould] sign,” but wanted to “clarify” two sections: “5. INTELLECTUAL PROPERTY RIGHTS”
and “SCHEDULE 1. 4. STOCK OPTIONS.” Id. ¶ 17. Specifically, Dr. Bulwer stated: “my wish
is for these two items to be handled as an addendum, since there are details to spell out, so that I
can expedite signing by tomorrow.” Id. No addendum was ever exchanged or executed by the
parties. Id. ¶ 18. Pursuant to the ICA, Dr. Bulwer was paid $15,000 per month plus expenses. Id.
¶ 29. EchoNous paid every invoice that Dr. Bulwer submitted under the ICA, from October 2021
to November 2022. Id.; Dkt. 40-6.
1 Unless otherwise noted, facts are taken from the DSOF, Dkt. 39, as agreed to in Plaintiff’s Statement of
Material Facts, Dkt. 49.
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On November 22, 2022, the new CEO of EchoNous, Graham Cox, notified Dr. Bulwer that
EchoNous would not be renewing the ICA and requested an invoice for November 2022, the last
month for which Dr. Bulwer would be paid. DSOF ¶ 22. That same day, Dr. Bulwer emailed Cox
the following:
As I outlined in my previous email, I have considerable intellectual property that is
currently being used by EchoNous in its educational and training outreach. These
number in the hundreds, and they currently reside on several folders on the
EchoNous company drives. This does not include scores of graphic designs that I
made for the Kosmos software, TRIO 2.0. 	The software/engineering/Al team
responsible can speak to these facts. Neither of these are works for hire. These are
my US copyright registered works. Therefore, can I ask that we pursue mechanisms
to evaluate, address and amicably resolve these issues above?
Id. ¶ 24.
On December 23, 2022, Dr. Bulwer sent an email to Cox which, inter alia, (1) referenced
Dr. Bulwer’s previous exchange with EchoNous’s then-General Counsel regarding a potential
addendum to the ICA; (2) listed some of the “hundreds” of Dr. Bulwer’s copyrighted and
derivative works provided to and used by EchoNous; (3) stated that “[g]uidelines and pricing for
medical/technical illustrations that are customary and reasonable include those published by the
American Association of Medical Illustrators, leading publishers, e.g. Elsevier, and academic
medical institutions, e.g. The Ohio State University”; and (4) stated that “[t]o arrive at the
associated costs/charges referred to above, there needs to be a desire by both parties to exercise
good faith and pursue a path to identify and quantify the copyrighted graphical material (medical
illustrations technical drawings) involved, the reasonable market value for such, plus a formula for
licensing their continued use by EchoNous—without resorting to third-party involvement.”
Dkt. 40-13 (emphasis removed).
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B. 	Procedural Background
Dr. Bulwer filed this action on May 16, 2023, asserting claims for unjust enrichment and
quantum meruit under Massachusetts law for the period from June 2020 to October 25, 2021.
Dkt. 1. EchoNous moved for summary judgment, Dkt. 37, and a hearing was held on December 1,
2025. At the hearing, the parties disputed whether all the materials at issue fall within the subject
matter of copyright. Dkt. 64 at 23:2–17, 34:6–35:6. The Court therefore permitted the parties to
submit supplemental briefing on that question. On December 17, 2025, Dr. Bulwer submitted a
supplemental opposition to EchoNous’s motion for summary judgment. Dkt. 63. EchoNous filed
a response on December 30, 2025. Dkt. 68.
II. 	Standard of Review
Summary judgment will only be granted where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Grogan v. All My Sons Bus. Dev. LLC, 552 F. Supp. 3d 142, 145 (D. Mass. 2021) (quoting Fed.
R. Civ. P. 56(a)). A fact is “material” if it “might affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “To
succeed [on a motion for summary judgment], the moving party must show that there is an absence
of evidence to support the nonmoving party’s position.” Grogan, 552 F. Supp. 3d at 145 (quoting
Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990)).
The Court must view “the record in the light most favorable to the nonmovant, drawing
reasonable inferences in his favor.” 	Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).
However, “[t]he nonmoving party cannot fend off summary judgment unless it makes a competent
demonstration that every essential element of its claim or defense is at least trialworthy.” Price v.
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Gen. Motors Corp., 931 F.2d 162, 164 (1st Cir. 1991) (emphasis in original). 	“Where the
non-moving party bears the ultimate burden of proof, the non-moving party ‘must present definite,
competent evidence to rebut the motion.’” Satanic Temple, Inc. v. City of Bos., 684 F. Supp. 3d
21, 30 (D. Mass. 2023) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)),
aff’d, 111 F.4th 156 (1st Cir. 2024).
III. 	Discussion
A. 	Waiver
The Court must first determine whether EchoNous waived its preemption argument by
failing to plead the defense of copyright preemption in its answer. As a threshold matter, copyright
preemption is an affirmative defense. See Prime Healthcare Servs. - Landmark, LLC v. CIGNA
Health & Life Ins. Co., 2024 WL 361368, at * 2 (D.R.I. Jan. 31, 2024) (“Defensive preemption,
as its name implies, is a federal affirmative defense.”); Fryer v. A.S.A.P. Fire & Safety Corp., 658
F.3d 85, 90 (1st Cir. 2011) (distinguishing between jurisdictional preemption defenses that, if
successful, “would dictate the choice of forum and thereby deprive the reviewing court of subject
matter jurisdiction,” and waivable preemption defenses that “merely dictate[] a different choice of
law” (citing Int’l Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 390–91 (1986)); Wolf v. Reliance
Standard Life Ins. Co., 71 F.3d 444, 449 (1st Cir. 1995) (concluding ERISA preemption is an
affirmative defense because it serves as “a bar to the right of recovery even if the general complaint
were more or less admitted to” (quoting Jakobsen v. Mass. Port Auth., 520 F.2d 810, 813 (1st Cir.
1975))).
“Generally speaking, failure to plead an affirmative defense results in a waiver of the
defense and the exclusion of all evidence relevant to it.” Conjugal P’ship v. Conjugal P’ship, 22
F.3d 391, 400 (1st Cir. 1994); see also Fed. R. Civ. P. 8(c)(1) (“[A] party must affirmatively state
any avoidance or affirmative defense.”). However, “[t]he purpose of Rule 8(c) is to give the court
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and the other parties fair warning that a particular line of defense will be pursued.” Williams v.
Ashland Eng’g Co., 45 F.3d 588, 593 (1st Cir. 1995), abrogated on other grounds by, Carpenters
Loc. Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136 (1st Cir. 2000); see also Wolf, 71 F.3d
at 449 (“An affirmative defense must be pleaded in the answer in order to give the opposing party
notice of the defense and a chance to develop evidence and offer arguments to controvert the
defense.”). For that reason, courts may allow parties to raise affirmative defenses after the answer
stage if doing so would not unfairly prejudice the other party. See Davignon v. Clemmey, 322 F.3d
1, 15 (1st Cir. 2003) (recognizing an exception to the Fed. R. Civ. P. 8(c)(1) rule where “the
defendant asserts [the affirmative defense] without undue delay and the plaintiff is not unfairly
prejudiced by any delay”).
Here, Dr. Bulwer doubtless had “fair notice” that questions of copyright and intellectual
property undergird this case. See, e.g., Dkt. 40-13; Dkt. 50-1 at 87:5–10, 214:3–8. To the extent
Dr. Bulwer was unable to fully develop the question of which materials fell within the subject
matter of copyright, as argued at the summary judgment hearing, Dkt. 64 at 33:14–35:6, any
prejudice was cured by the opportunity to submit supplemental briefing on precisely that issue, see
Dkt. 63 (containing supplemental briefing by Dr. Bulwer including a total of nearly a thousand
pages of memoranda and exhibits). 	Accordingly, EchoNous has not waived the defense of
copyright preemption.
B. 	Copyright Preemption
The Federal Copyright Act expressly preempts equivalent state law claims. See 17 U.S.C.
§ 301(a) (“[A]ll legal or equitable rights that are equivalent to any of the exclusive rights within
the general scope of copyright . . . are governed exclusively by this title.”). 	“[C]laims are
preempted if the following two conditions are met: (1) the work of authorship in which rights are
claimed must fall within the subject matter of copyright as defined by §§ 102 and 103; and (2) the
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state-created right must be equivalent to one of the exclusive rights created by the Copyright Act.”
Jalbert v. Grautski, 554 F. Supp. 2d 57, 75 (D. Mass. 2008). A state-created right is equivalent
“[i]f the plaintiff’s state-law claim seeks to protect a matter within the scope of copyright law.”
Id. (citation omitted).
Dr. Bulwer first claimed unjust enrichment and quantum meruit based on EchoNous’s
“failure to compensate Dr. Bulwer for the substantial and valuable expertise, services, and
materials he provided.” 	Dkt. 1 ¶¶ 1–2. 	In response to EchoNous’s argument on summary
judgment that Dr. Bulwer’s claims were preempted by federal copyright law, Dkt. 38 at 6–10,
Dr. Bulwer argued that his claims are qualitatively different than federal copyright claims and that
not all the materials provided to EchoNous are copyrightable, Dkt. 48 at 3–10. 	Along with his
supplemental briefing, Dr. Bulwer submitted materials he argued fell outside the subject matter of
copyright, including presentations, training materials, manuals, and reference guides, and a
textbook. Dkts. 63-3, 63-5, 63-8, 63-10, 63-13, 63-14, 63-15.
1. 	Subject Matter of Copyright
The Court must first consider whether the materials at issue fall within the subject matter
of copyright. Jalbert, 554 F. Supp. 2d at 75. “A work need not consist entirely of copyrightable
material in order to meet the subject matter requirement, but instead need only fit into one of the
copyrightable categories in a broad sense.” Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373
F.3d 296, 305 (2d Cir. 2004). Section 102 of the Copyright Act authorizes copyright protection
of “original works of authorship fixed in any tangible medium of expression” and Section 103
extends that protection to “compilations and derivative works.” 	17 U.S.C. §§ 102(a), 103(a)
(emphasis added). Court have recognized that myriad materials fall within the “subject matter of
copyright,” even those that include elements that are not copyrightable. See Tingley Sys., Inc. v.
CSC Consulting, Inc., 152 F. Supp. 2d 95, 104 (D. Mass. 2001) (computer programs); Rubin v.
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Brooks/Cole Publ’g Co., 836 F. Supp. 909, 923 (D. Mass. 1993) (psychological instruments); R.W.
Beck, Inc. v. E3 Consulting, LLC, 577 F.3d 1133, 1146–47 (10th Cir. 2009) (reports including
uncopyrightable material); Harper & Row Publishers, Inc. v. Nation Enters., 723 F.2d 195, 200
(2d Cir. 1983) (memoirs including uncopyrightable material), rev’d on other grounds, 471 U.S.
539 (1985). The materials at issue here—both images and written material, including compilations
of noncopyrightable material—likewise fall squarely within the subject matter of copyright and
satisfy the first prong of the copyright preemption inquiry.
2. 	Equivalent Rights
The Court next considers whether the right Dr. Bulwer seeks to vindicate is equivalent to
an exclusive right protected by the Copyright Act. Jalbert, 554 F. Supp. 2d at 75. “[I]f a state
cause of action requires an extra element, beyond mere copying, preparation of derivative works,
performance, distribution or display, then the state cause of action is qualitatively different from,
and not subsumed within, a copyright infringement claim and federal law will not preempt the
state action.” Tingley, 152 F. Supp. 2d at 104–05 (emphasis in original) (quoting Data Gen. Corp.
v. Grumman Sys. Support Corp., 36 F.3d 1147, 1164 (1st Cir.1994), abrogated on other grounds
by, Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010)). 	“The extra element must be
qualitatively different from the rights protected by copyright law” and “must be one which changes
the nature of the action so that it is qualitatively different from a copyright infringement claim.”
Id. at 105 (citation omitted). Elements that “merely alter the scope of the action and not its nature”
are insufficient to allow a claim to survive preemption. Id. (citing Rubin, 836 F. Supp. at 923).
Unjust enrichment and quantum meruit claims, when based on the same allegations as
accompanying copyright claims, are preempted by copyright law. 	See Feldman v. Twentieth
Century Fox Film Corp., 723 F. Supp. 2d 357, 368 (D. Mass. 2010); Tingley, 152 F. Supp. 2d at
112 (explaining that a quantum meruit claim, “which alleges the wrongful acquisition and use of
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the [plaintiff’s] software and demands compensation for such use and for the conferred benefits,
does not qualitatively differ from a copyright infringement claim”). 	A plaintiff bringing these
allegations 	generally 	“seeks 	to 	recover 	benefits 	which 	[the 	defendant] 	derived 	from 	its
unauthorized use and copying of the copyrighted” material. Tingley, 152 F. Supp. 2d at 112. Such
claims directly implicate the exclusive rights protected by the Copyright Act. See 17 U.S.C. § 106
(granting copyright owners exclusive rights to reproduce copyrighted work or prepare derivative
works based upon the copyrighted work).
Here, however, Dr. Bulwer seeks to recover for the authorized use of his works. For the
purposes of copyright preemption, an unjust enrichment or quantum meruit claim based on
authorized use is materially different from one based on unauthorized use. The right Dr. Bulwer
seeks to vindicate is his right to be fairly paid for the use of his materials. See Levine v. Landy,
832 F. Supp. 2d 176, 188 (N.D.N.Y. 2011) (“Whether termed a right to ‘payment,’ ‘royalties,’
‘compensation,’ ‘proceeds,’ or ‘remuneration,’ plaintiff is not attempting to vindicate rights
protected by the Copyright Act.”). Dr. Bulwer “does not seek to vindicate his rights to distribute,
publish, and/or reproduce” his materials, and therefore his claimed rights are not equivalent to the
rights protected under federal copyright law. Id.
Accordingly, Dr. Bulwer’s claims are not preempted by federal copyright law. However,
EchoNous argues in the alternative that Dr. Bulwer cannot recover under a theory of unjust
enrichment because there was a valid contract in place and because there is no genuine issue of
material fact. The Court takes each argument in turn.
C. 	Contract
A plaintiff claiming unjust enrichment or quantum meruit must demonstrate, “(1) that he
conferred 	a 	measurable 	benefit 	upon 	the 	[defendant]; 	(2) 	that 	he 	reasonably 	expected
compensation from [the defendant]; and (3) that the [defendant] “accepted the benefit with the
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knowledge, actual or chargeable, of [his] reasonable expectation.” Guldseth v. Fam. Med. Assocs.
LLC, 45 F.4th 526, 540 (1st Cir. 2022) (internal quotation marks omitted). 	However, “[a]n
equitable claim for unjust enrichment is not available when the claiming party has an adequate
remedy at law.” Scarpaci v. Lowe’s Home Ctr., LLC, 212 F. Supp. 3d 246, 253 (D. Mass. 2016).
An adequate remedy at law refers to a legal theory “by which the plaintiff may seek recovery; it
does not, however, require the existence of a legal theory under which the plaintiff is ultimately
successful on obtaining a recovery.” Id. at 253 n.7. 	More specifically, as relevant to this case,
“[a] plaintiff is not entitled to recovery on an unjust-enrichment or quantum-meruit theory where
there is a valid contract that covers the same subject matter and defines the obligations of the
parties.” Guldseth, 45 F.4th at 541.
The parties disagree as to whether the ICA governed the period before the ICA was
effective. 	The Court need not decide that question. 	Prior to and independent of the ICA, in
September 2020, Dr. Bulwer entered into a contract with then-CEO Goodwin for $5,000 per month
as a “consultation-retainer.” 	DSOF ¶ 13. 	Neither party disputes that Dr. Bulwer submitted
monthly invoices for $5,000 for consultancy services provided beginning August 1, 2020, until the
ICA was effectuated, or that EchoNous paid every invoice that Dr. Bulwer submitted. Id. ¶¶ 13,
14. Dr. Bulwer stated that his “services prior to the ICA consisted of . . . creating new content for
the KOSMOS cardio measurements and calculations and new content for the purpose of resigning
the TRIO software, and creating a new training program for nurses using the KOSMOS device
and TRIO software.” 	Dkt. 50 ¶ 8. 	Dr. Bulwer likewise contended that “a large portion of the
materials provided to Defendant were the result of requested services he rendered.” Dkt. 49 ¶ 37;
Dkt. 50 ¶ 14. 	Further, it is undisputed that Dr. Bulwer “chose the images and materials that he
provided to EchoNous in connection with his consulting work.” DSOF ¶ 10.
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In sum, Dr. Bulwer provided consulting services, which included the provisioning of the
materials at issue, to EchoNous in exchange for $5,000 per month. 	This contract “defines the
obligations of the parties as to the matters within its scope, displacing to that extent any inquiry
into unjust enrichment.” 	Guldseth, 45 F.4th at 541 (quoting Restatement (Third) of Restitution
and Unjust Enrichment § 2 (2011)). Accordingly, Dr. Bulwer is not entitled to recover under a
theory of unjust enrichment or quantum meruit.
Even assuming arguendo that some materials at issue were not subject to the parties’
pre-ICA contract, Dr. Bulwer has failed to plausibly establish the elements of unjust enrichment
or quantum meruit. “Unjust enrichment provides an equitable stopgap for occasional inadequacies
in contractual remedies at law by mandating that [a] person who has been unjustly enriched at the
expense of another is required to make restitution to the other.” 	Mass. Eye & Ear Infirmary v.
QLT Phototherapeutics, Inc., 412 F.3d 215, 234 (1st Cir. 2005) (internal quotation marks omitted).
“Whether or not receipt of a benefit is unjust turns on the reasonable expectations of the parties.”
Guldseth, 45 F.4th at 540. Even drawing reasonable inferences in Dr. Bulwer’s favor, as required
at the summary judgment stage, Noonan, 556 F.3d at 25, he has failed to “point to definite and
competent evidence showing the existence of a genuine issue of material fact” regarding the
parties’ reasonable expectations, Perez v. Lorraine Enters. Inc., 769 F.3d 23, 30 (1st Cir. 2014).
It is undisputed that the parties entered into a valid contract during the relevant period, with
which both parties complied. Dr. Bulwer conceded at his deposition that when he first emailed a
link containing images to EchoNous employees, he did not express in that email that he expected
to be compensated. Dkt. 50-1 at 66:7–16. Dr. Bulwer contends instead that he and Goodwin “had
an understanding” before he sent materials to EchoNous for the first time in June 2020 that
Dr. Bulwer would be paid for his images. 	Id. at 67:12–70:8. 	Goodwin acknowledged that
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intellectual property would be discussed later: “[I]t wasn’t a yes, it wasn’t a no. 	There was an
implication that he would want to talk about it for certain.” Dkt. 50-2 at 43:23–44:7. However,
these facts do little to support Dr. Bulwer’s claims, because shortly thereafter Dr. Bulwer and
Goodwin entered into a valid contract governing Dr. Bulwer’s relationship with EchoNous. See
Zarum v. Brass Mill Materials Corp., 334 Mass. 81, 85 (1956) (“The law will not imply a contract
where there is an existing express contract covering the same subject matter.”).
Dr. Bulwer tries to supplement his claims by pointing to actions he took over a year later,
after the ICA was not renewed in November 2022. The fact that he later expressed wanting an
addendum governing intellectual property added to a subsequent contract does little to bolster his
claims concerning the period from June 2020 to October 25, 2021. Indeed, it is undisputed that
the ICA was not yet in effect during that period and that he never provided EchoNous with a
proposed addendum to the ICA. DSOF ¶¶ 18, 33. What is more, by Dr. Bulwer’s own admission,
he had no problem with EchoNous’s using his materials until Cox became CEO and declined to
renew the ICA. Dkt. 50-1 at 258:21–261:4. In sum, Dr. Bulwer has put forth insufficient facts to
suggest he reasonably expected additional compensation for the period from June 2020 to
October 25, 2021 such that failing to allow him to recover would be “unconscionable.” Tamposi
v. Denby, 974 F. Supp. 2d 51, 63 (D. Mass. 2013) (citation omitted).
[W]hile it is said that a defendant is liable if equity and good conscience requires,
this does not mean that a moral duty meets the demands of equity. 	Unjust
enrichment is not a boundless doctrine, but is, instead, narrower, more predictable,
and more objectively determined than the implications of the words ‘unjust
enrichment.’
Id. (cleaned up).
IV. 	Conclusion
For the foregoing reasons, EchoNous’s motion for summary judgment, Dkt. 37, is
GRANTED.
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So Ordered.
/s/ Brian E. Murphy
Brian E. Murphy
Dated: January 22, 2026 	Judge, United States District Court
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