Deciding substantial similarity on a motion to dismiss

Klauber Bros., Inc. v. Bon-Ton Stores, Inc., 2014 WL 657953, No. 13–1672 (2d Cir. Feb. 21, 2014)

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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