Tuesday, April 20, 2010
2nd Circuit Affirms Noninfringement Holding on Motion to Dismiss in Copyright Claim
The complaint had identified 35 alleged similarities between the plaintiffs designs and the redesign. The court held that substantial similarity claims can be dismissed as a matter of law either (1) because the similarity between the works concerns only non-copyrightable elements, or (2) no reasonable jury could find that the two works were substantially similar. In this case the court found that "it is patent that the overall visual impressions of the two designs are entirely different." In rejecting the alleged similarities proposed by the plaintiff the court found that they were no more than ideas and concepts, not the protectable expression of ideas.
It appears that the Eleventh Circuit has not spoken on the issue. Therefore, it may be worth the effort to try a motion to dismiss where the plaintiff attaches the two works in question.