For many years, the plaintiff was part-owner and lead designer for a company that made stationery and office supplies. The plaintiff claims that she, and not her prior employer, owns the copyright in six designs that she created during her tenure. When the defendant began selling back-to-school and other products that incorporated, in the plaintiff’s view, designs that were based on her own, she sued for copyright infringement. The defendant moved for summary judgment, arguing (among other things) that its designs were not substantially similar to the plaintiff’s. 

So let’s play a game. Below are the six designs at issue in this case. For each pair, the plaintiff’s design is on the left and the defendant’s is on the right. If you were the judge, how would you rule on the defendant’s motion? Which (if any) of the defendant’s designs below infringes upon the plaintiff’s copyright?

If you concluded that NONE of the design pairs were substantially similar, then you are on the same page as District Judge Graham C Mullen (W.D.N.C.). 

At the outset, the court noted the designs consisted largely of basic elements – like stripes, colors and polka dots – to which copyright protection does not extend. (See this post.) While the particular selection and arrangement of the elements in each design could possess the requisite degree of originality to be subject to copyright protection (see this post), that protection would be “thin" (see this post). As a result, to succeed with her claim, the plaintiff would need to demonstrate a higher degree of similarity between her designs and those of the defendant. If “substantial similarity is the normal measure required to demonstrate infringement, 'supersubstantial’ similarity must pertain when dealing with ‘thin’ works” (citations omitted).

Here, the plaintiff had offered “no specific, objective similarity” between any of her designs and any of the defendant's. Applying the heightened similarity standard for thin works, the court concluded that no reasonable trier of fact would find substantial similarity between the plaintiff's and defendant's designs:

“Any purported similarities in the designs herein are merely dictated by the fact that both have the same general subject matter: polka dots, stripes, and flowers. Any ordinary observer could easily point out the differences between the designs. A court can find designs to be visually similar with the same general layout and nonetheless find the dissimilarities significant enough to preclude a finding of infringement.” (Cleaned up.)

So how did you do in the game? 

McFee v. Carolina Pad, Inc., No. 3:21CV633-GCM, 2023 WL 7926808 (W.D.N.C. Nov. 16, 2023)