U.S. District Court, WDNY – Copyright: McDonald v. K-2 Industries, Inc.

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U.S. District Court, WDNY – Copyright – Substantial Similarity – Aggregated Copyright Claims

McDonald v. K-2 Industries, Inc.

09-CV-6357L

Judge Larimer

Background: The plaintiff entered into an Artist Letter Agreement wherein she agreed to create and design gift items to be sold by the defendant. The items that the plaintiff would create were “Pierced Angels and Elements.” The agreement was to remain in effect as long as the defendant was producing and promoting the product lines. It is undisputed that the “pierced angels” product line was never developed. The “elements” line is at issue. The plaintiff brought an action against the defendants alleging claims for copyright infringement. Specifically, she provided the defendant with designs that were approved and she has not received the royalties promised her. The defendant moved to dismiss her complaint.

Ruling: The District Court dismissed the complaint. First, the court struck a chart submitted by the plaintiffs that was to facilitate the “substantial similarity” analysis as the submission obfuscated the issues and served only to confound the court. The District Court further held that the plaintiff failed to raise a triable issue of fact as an overwhelming majority of the plaintiff’s copyrighted designs represented her expression of a “basic idea” well-known in the public domain, namely a “winged woman.” Indeed, no reasonable trier of fact could find that any of the accused products are “substantially similar” to her copyrighted designs. Further, the court held that the plaintiff’s presentation of “aggregated copyright claims” have no cognizable theory supported by the Copyright Act.

Tedd S. Levine and John Cobb Nutter and Paul L. Leclair of Leclair Korona Giordano Cole for the plaintiff; Andrew Peter Zappia of LeClair Ryan and Terence Lee Robinson, Jr. of Nixon Peabody for the defendants