Klauber appealed from the dismissal of its copyright claim
against Bon-Ton. It argued that the
district court erred in finding no substantial similarity as a matter of law
between the parties’ lace-waistband underwear.
The court of appeals affirmed the grant of the motion to dismiss; a
district court can resolve an infringement case as a matter of law if “no
reasonable jury, properly instructed, could find that the two works are
substantially similar.” And where, as here, the works in question are attached
to the plaintiff’s complaint, the district court may “consider the similarity
between those works in connection with a motion to dismiss, because the court
has before it all that is necessary in order to make such an evaluation.”
Klauber's design |
Bon Ton's design
The court of appeals’ independent review revealed that the
designs didn’t have a substantially similar aesthetic appeal. Yes, they had similar
elements—curling sprigs, leaves, and flowers—placed in a similar spatial
arrangement. But each element had differences, too:
For example, the sprigs in
Klauber’s designs are long, winding, and delicate, while the sprigs in Bon-Ton’s
design are shorter and more compact; the leaves in Klauber’s designs all have a
distinctive indentations and vary in shape and size, while the leaves in Bon-Ton’s
design have no indentations and are uniform in shape and size; and the flowers
in Klauber’s designs are buds growing upward away from the nearest border,
while the flowers in Bon-Ton’s design are blossoms growing downward towards the
border.
“The accumulation of these differences gives Bon–Ton’s design
a substantially different ‘total concept and overall feel’ than Klauber’s
designs.” Klauber’s designs were “delicate
and ornate, with the dominant element being the semicircles formed by the
curling sprigs,” while Bon-Ton’s design “conveys a more rudimentary and
abstract feel, with the dominant element being the straight portions of the
sprigs.” No reasonable juror would
regard the works’ aesthetic appeal as the same.
(Under the surface here, there are significant idea/expression issues and concepts of what the
protectable “aesthetic appeal” has to be here to avoid protecting ideas.)
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