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June 1, 2004.


The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


On February 13, 2004, the Honorable Michael H. Do linger, United States Magistrate Judge, filed a Report and Recommendation ("R&R"), recommending that this Court grant the remaining defendants' motions for summary judgment in this long-running case. After receiving an extension of time to file objections to the R&R, plaintiff's duly filed such objections on March 29, 2004, to which defendants responded on or about April 23, 2004. The matter is now fully submitted for this Court's decision on these final dispositive motions. Upon this Court's independent review of the submissions on these motions, Judge Dolinger's R&R is adopted as the opinion of the Court, and the defendants' motions for summary judgment are granted.

There is little that this Court can add to Judge Dolinger's extremely patient and thorough analysis of the very complex and lengthy record in this case. A few observations are in order, however. First, plaintiffs' pro se submissions raise a host of issues that are extremely difficult to characterize as objections to the R&R. Judge Dolinger, with characteristic thoughtfulness, has carefully analyzed each of the plaintiffs' claims in light of defendants' arguments for summary judgment, laid out the legal standards applicable to each, applied those standards to the evidentiary record, and concluded by rejecting some of defendants' arguments and accepting others. Plaintiffs' submissions do not take issue with a great deal of the analysis in the R&R, and do not even mention several of their claims. One submission consists entirely of yet another installment in plaintiffs' long-running effort to "correct" various submissions made on their behalf at earlier points in the litigation, alleged errors in the docket, and alleged mistakes of prior counsel. See Affirmation to Correct the 5/19/00 Declarations of Peyser and Moss [doc. # 250]. The relevance of these arguments to the R&R, if any, is obscure. Another seeks to submit additional exhibits. See Affirmation of Stephen Peyser to Submit Exhibits [doc. # 252]. Since the record on the summary judgment motions was to have been completed long ago, the submission of new evidentiary material in response to the R&R is hardly in order; nevertheless, all material submitted has been considered by the Court. Finally, the one affirmation that does appear to address directly the issues in the summary judgment motion, and which is specifically labeled as constituting objections to the R&R, makes only a handful of direct references to the R&R itself. See Affirmation in Opposition to Magistrate Dolinger's Report and Recommendation (R&R) Explaining Knitting Terminology and Examination of Available Exemplars [doc. #251].

  Plaintiff's are non-lawyers representing themselves, and this catalogue of non-responsive and partially non-responsive materials is not intended as a criticism of their efforts to present their case as best they can. Solicitous of plaintiffs' pro se status, the Court has made every effort to consider the material submitted and to relate it to the summary judgment motions and to Judge Dolinger's analysis. Nevertheless, the Court can only deal with the materials that are presented, in the manner in which they are presented. Based on the plaintiffs' submissions, which make a coherent argument with respect to copyright infringement, but ignore plaintiffs' other claims, the Court can only conclude that plaintiff's have abandoned their trade dress claims under the Lanham Act (R&R 58-68) and their claims under state law (R&R 69-71), and that they have no meritorious objections to Judge Dolinger's recommendations regarding these claims.

  Second, plaintiffs' submissions largely miss a point at the heart of Judge Dolinger's analysis, which appears to this Court to be critical to a proper understanding of copyright law as it applies to their claims. Throughout their argument, both in their original opposition to defendants' motion and in their objections to the R&R, plaintiff's treat any similarity between any of defendants' products and any of their products as evidence of copyright infringement, and appear to confuse copying of their techniques with copying of their copyrighted design. Thus, plaintiff's extensively analyze the methods of creation of their sweaters, a subject largely irrelevant to the case. As Judge Dolinger correctly found, the copyright protection obtained by the plaintiff's relates only to the distinctive design submitted to the Copyright Office. (R&R 9 & n. 4, 37-43.) Having independently reviewed the various submitted exhibits, the Court completely agrees with Judge Dolinger's careful comparison of the various exemplars, and with his ultimate conclusion that none of the exemplars submitted, with the possible exception of Horn Ex. L, comes close to reflecting the distinctive look of the plaintiffs' actual copyrighted design, and that even that example does not "replicate the dramatic, bi-colored diamond pattern that is an essential element of the plaintiffs' copyrighted design." (R&R 42.) Thus, no reasonable factfinder could find that any of the examples of the defendants' products replicate the "total concept and feel" of the plaintiffs' copyrighted design.

  This in itself is sufficient to defeat plaintiffs' infringement claims. Even assuming arguendo that the defendants copied some aspect of an innovative knitting technique developed by plaintiff's, or a design concept that plaintiff's originated, copyright protection extends "only to the [copyrighted] work's particular expression of an idea, not the idea itself." Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 765 (2d Cir. 1991). The Magistrate Judge was thus correct to "focus on the particular shape and size of the bridging-and-rib pattern depicted in [the copyrighted works] and the appearance of the diamond shape of the stitching on the reverse side" (R&R 39), rather than, as plaintiff's do, on the method of stitching, and on miscellaneous comparisons of exemplars other than the specific design copyrighted by plaintiff's.

  Third, the most detailed objections made by plaintiff's, and the ones that come closest to raising potentially disputable factual issues, are those that (in effect) argue that, contrary to Judge Dolinger's conclusions, genuine issues of fact exist with respect to defendant Horn's and Rabl's potential access to plaintiffs' products. These objections are difficult to follow, since plaintiff's are not always clear in citing to the record, and often appear to rely on materials that are not in the record, or on belated claims that their case would be made by materials wrongly withheld in discovery or otherwise unavailable. Nevertheless, on careful review, the Court concludes that these objections too are unavailing, for three reasons: (1) these arguments too depend on inferences of access to plaintiffs' designs generally, and not to the copyrighted design; (2) as Judge Dolinger concluded, the claims of access rest on "speculation ungirded by evidence" (R&R 49; see also id. 54), that is contradicted by powerful and concrete evidence offered by defendants; and (3) in any event, even if plaintiff's were correct that a genuine issue of fact existed with respect to access, the absence of such issues regarding substantial similarity of the defendants' products to the copyrighted design is in any event fatal to plaintiffs' claims. It is often a close question whether a thin filigree of inference is sufficient to raise a genuine issue with respect to a material element of a claim, and plaintiff's here present enough of a rational argument to make it a close call in this case whether their claim of access is insufficient or merely weak. But on balance the Court is convinced that Judge Dolinger made the correct call.

  Finally, in addition to opposing the R&R, the plaintiff's now cross-move for summary judgment in their favor, request a further hearing on their claims, and seek an order that the defendants produce additional materials they claim were wrongfully withheld in discovery. In light of the above discussion, neither further hearing nor further discovery is necessary. Judge Dolinger fully considered all discovery issues, including those plaintiff's reference, and found no need to intercede or to reopen what was an already-protracted discovery period. See, e.g., Order dated May 10, 2002 [doc. # 175] (ordering parties to "cease their barrage of letters" as "the summary judgment motion and fee motion are fully submitted"); Order dated July 29, 2002 [doc. # 184] (declining to intervene in plaintiffs' demand for resolution of "newly discovered outstanding issues" as "there is no issue for the Court to resolve"); Order dated January 16, 2003 [doc. # 195] (ordering that "no further submissions should be made on th[e] issue [of exemplars]"). The plaintiffs' motion for an order mandating the production of documents is therefore denied. With respect for the request for a hearing, as Judge Dolinger has noted, the parties were allowed "several rounds" of supplemental briefing, and "the record was closed some time ago." (R&R 2.) Summary judgment for the defendants is clearly appropriate, and no further hearing is necessary.

  The plaintiff's have made an enormous investment of financial, psychological and emotional resources in pursuing this case. At times, as reflected in the numerous orders of Judge Knapp, to whom the case was until recently assigned, Judge Dolinger, to whom it was referred for pretrial supervision, and of the undersigned, their dogged pursuit of often trivial byways, and their repetitious refusal to accept rulings as settled, have no doubt been frustrating for their adversaries, and have imposed unnecessary costs on the Court and the defendants as well as on themselves. See Peyser v. Searle Blatt & Co., No. 99 Civ. 10785 (GEL), 2004 WL 395975 at *4 (S.D.N.Y. Mar. 2, 2004). It is unfortunate that this enormous effort has to all intents and purposes been wasted. But however disappointing the result to the plaintiff's, their claims are ultimately lacking in merit, and it is time for the litigation to end.

  For the reasons set forth above, the Report and Recommendation dated February 13, 2004, as supplemented by this Opinion and Order, is adopted as the opinion of the Court, the defendants' motions for summary judgment are granted, and the plaintiffs' cross-motion for summary judgment is denied. The Clerk is respectfully directed to enter judgment accordingly, and to mark the case closed.



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