On February 22, Chief Judge Saris in the District of Massachusetts issued an opinion on a motion to dismiss implicating several complex copyright infringement issues. The Chief Judge’s ruling analyzed whether several allegedly infringing works could be considered “substantially similar” to the copyrighted works, as required to support a claim of copyright infringement.
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The Plaintiff, LovePop, Inc. (“LovePop”), produces three-dimensional pop-up greeting cards, inspired by a paper-cutting art form called kirigami, for a variety of purposes. The Defendant, PaperPopCards, Inc., (“PaperPop”) also sells three-dimensional pop-up greeting cards. LovePop alleged that PaperPop “slavishly copied” each of nine LovePop designs and that six of the designs appear in instructional videos posted on PaperPop’s website. LovePop sued for infringement of its copyrights in the designs and related videos, claiming that PaperPop had produced impermissible “derivative works” within the scope of LovePop’s exclusionary rights.
To save its copyright infringement claim from PaperPop’s motion to dismiss, LovePop needed to show that the facts alleged, construed in the light most favorable to LovePop, demonstrated that PaperPop copied original elements of its copyrighted works, among other requirements. This showing required LovePop to demonstrate that the copying was so egregious as to render the allegedly infringing works “substantially similar” to the protected works. To gauge substantial similarity, courts often employ an “ordinary observer” test, under which substantial similarity is found if an ordinary observer would be disposed to overlook any disparities in the works.
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[F]or the “French Flower Cart” and “Flower Cart” designs, the Court perceived “a number of conspicuous similarities between the expressive flourishes in the two designs,” including that both carts were roughly the same size and contained similar elements, such as five rows of flowers, latticework on the sides, pitched roofs, curved handles, fanciful wheel designs, and more. Citing these similarities, the Court concluded that “it is entirely plausible that an ‘ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.’” Accordingly, the Court denied the motion to dismiss for those designs, as well as several others.
However, the Court allowed the motion to dismiss with respect to certain “Hanukkah Menorah” and “Menorah” designs. For these, the court relied on the doctrine of scènes à faire. The doctrine holds that copyright protection does not extend “to elements of a work that are for all practical purposes indispensable, or at least customary, in the treatment of a given subject matter.” For the menorah designs, the doctrine rendered unprotectable elements such as a candelabra holding nine candles, such that a factfinder could not consider them in conducting the ordinary observer test.
Link to the rest at Lexology
PG says, for someone who took only a single quarter of French in college and received a grade that was less than A+, scènes à faire has a more exotic sound than one would expect from mere copyright doctrine.