tile print garments in 1997. Black and white copies of both
Queenie's and Casual Corner's designs, somewhat reduced in size,
are in Appendices A and B hereto.
Summary judgment is appropriate only when there is no genuine
issue of material fact remaining for trial, and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(e);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the
burden of showing that no genuine factual dispute exists, and all
ambiguities and inferences drawn from the underlying facts must
be resolved in favor of the non-moving party. LaFond v. General
Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995).
To establish copyright infringement, Queenie must show
ownership of a valid copyright and copying by Casual Corner.
Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 192
(2d Cir. 1985). I conclude that summary judgment is not
appropriate here because, even if Queenie holds a valid copyright
(which I decline to decide on this motion), Queenie has not shown
the requisite level of similarity between the protected aspects
of the designs, namely "the ripped, jagged edges and the
thickness thereof, the shading within the tiles; and the
selection and arrangement of the tiles" (See Pl.'s Br. in Supp.
at 19-20), to establish copying.
It is well-settled that one cannot copyright an idea. Only the
expression of that idea can receive copyright protection.
Mattel, Inc. v. Azrak-Hamway Int'l, Inc., 724 F.2d 357, 360 (2d
Cir. 1983). It therefore follows that to the extent that works
are similar in ideas and general concepts, those similarities are
not infringements. Rachel v. Banana Republic, Inc.,
831 F.2d 1503, 1507 (9th Cir. 1987). Furthermore, similarity in expression
is non-infringing when the nature of the creation makes such
similarity necessary. Past Pluto Prods. Corp. v. Dana,
627 F. Supp. 1435, 1444 (S.D.N.Y. 1986). This "indispensable copying"
is infringing only if the works are virtually identical.*fn3
See Ring v. Estee Lauder, Inc., 874 F.2d 109 (2d Cir. 1989);
Deering Milliken, Inc. v. Quaker Fabric Corp., 187 U.S.P.Q.
288, 290 (S.D.N.Y. 1975); see also Melville B. Nimmer & David
Nimmer, Nimmer on Copyright, § 13.03[B][b] (1999) ("[I]f the
only original aspect of a work lies in its literal expression,
then only a very close similarity, verging on the identical, will
suffice to constitute an infringing copy.").
In this case, the underlying idea is boxes with ripped or rough
edges, and, as was stated in a companion case, "one cannot
copyright a box or a rip." Queenie, Ltd. v. Notations, Inc. et
al., No. 98 Civ. 2922, slip op. at 5 (S.D.N.Y. Nov. 18, 1999).
Thus, to the extent that both designs incorporate the mere fact
of boxes with ripped edges, such similarities are non-infringing,
as I decline to allow plaintiff the sole right to the use of box
shapes with ripped edges for the next seventy plus years. Drawing
all inferences in favor of the non-moving party, I conclude that
what might appear to be further similarities such as the
checkerboard arrangement of the boxes — as opposed to staggered —
inherent in arranging boxes in checkerboards,*fn4 or that the
boxes are differently colored, amounts to no more than
indispensable copying when creating a design incorporating boxes
with ripped edges and different colors. Thus, at bottom, it is
the differences in the contour, shape, and shading of the rips
(which necessarily delineate the edges of the boxes) which compel
a finding that the two designs are far from the law's requirement
of virtual identity as to be found to be infringement.
Accordingly, summary judgment is denied.
The foregoing is so ordered.