A number of recent copyright cases have hinged on intangible aspects of the work in question. In most cases, the court relies on expert witnesses to provide their opinions about things like substantial similarity or copying. But not in this case. This practice was endorsed recently by the Ninth Circuit in Hall v. Swift, which we wrote about here, yet a recent decision from the same court now seems to be at odds with that ruling.
Pretty In Plastic, Inc. v. Maryellis Bunn concerns a museum dedicated to ice cream, a design studio, and dueling depictions of unicorns. The Museum of Ice Cream solicited designs for a new room dedicated to inclusivity, using the rainbow as a theme. A design studio, Pretty in Plastic (PIP), submitted the concept and drawings of a rainbow sherbert room with a statue of a unicorn inside of it. After the museum declined to use the design, it introduced its own unicorn to be used in advertising. PIP claimed that the Museum of Ice Cream’s unicorn was a copy of its own, and sued for copyright infringement. Among PIP’s strongest assertions was the clear access the defendant had to its design.
The district court granted summary judgment in favor of the Museum of Ice Cream, finding that PIP’s unicorn depiction did not contain the quantum of originality, because unicorns are mythical creatures portrayed in countless works.
Ruling on the appeal, the Ninth Circuit’s said that the district court properly concluded that the unicorn was not original, calling the copyright protection it would enjoy “thin” — meaning that protection could only be provided against a virtually identical copy. The court went on to say there are notable differences between the two unicorns. Perhaps it takes a closer study of the underlying district court’s opinion to see what these differences are.
To me, those unicorns are exceedingly similar — other than the fact that they are facing opposite directions. One detail that really struck me is the musculature in the shoulder of both of these fine, fictitious animals.
In the Taylor Swift case about which we recently blogged, the district court — also in L.A. — rightly said decisions of aesthetics should be decided by weighing the views of aesthetic experts rather than by judges. At the time I was concerned that judges would apparently be prevented from doing the kind of summary judgment we see in this case. Here, one can see purely aesthetic judgments have been made by the court, and then again by the appellate court. The plaintiff had provided proof of registration in the initial complaint — so, in contrast with the courts, the U.S. Copyright Office apparently had found the work sufficiently original to merit protection.
Maybe this ruling is a good thing in terms of dismissing cases that shouldn’t go forward. However, the fact that the plaintiff provided this material directly to the defendant for an ad campaign makes it a case that should go forward — in my opinion. It seems to me that saying the copyright is “thin” ignores that actual copying appears to have taken place here. And I’m disturbed by it — particularly because access is so obvious.
There are conflicting policy considerations here:
- It’s great to be able to dismiss a meritless claim without going forward with the expense of discovery and a trial; but
- When there’s indisputable access, substantial similarity should not be so readily determined as being governed by a “thin” copyright, or merely as something that is often depicted. That would limit the ability of the content provider to enforce its right not to have its work copied without payment and credit.
As always, I’m truly interested in what you, the reader, think. Give me a digital shout.
