Ex©lusive Rights

Banzai, Inc. v. Broder Bros. Co. (E.D. Pa. 2009)

When did the Eastern District of Pennsylvania become a hotbed for fun copyright cases?  Judge Bruce W. Kauffman issued an order in another treat of a copyright dispute last Thursday.  Banzai brought suit against Broder Brothers for copyright infringement of its tye-dye fabric designs “USA Ultra Spiral Design” and “Orange Ultra Spiral Design” (pictured below).  The Court dismissed the claims on the basis that the designs lacked sufficient originality to merit exclusive rights.

On the originality of the tye-dye designs

Banzai argued that its copyright was not in the spiral design itself, but for the “original selection of colors and their arrangement” in the spiral design. The Court wasn’t buying. (And is that snark I doth detect?)

Plaintiff admits that the tie-dye spiral design is common and not proprietary to Plaintiff, so its only unique contribution was to select the colors red, white, and blue in one design and orange and yellow in the other. Neither of these selections shows a modicum of creativity. Red, white, and blue are commonly matched colors, perhaps most notably on the American flag. Orange and yellow are adjacent in the spectrum of colors visible to the human eye. Placing these basic, predictable color combinations into a pre-existing design does not satisfy the minimum creativity necessary to establish a valid copyright.

Deference to the Copyright Office’s registration

The Court also addressed the level  of weight to be given to the fact that the Copyright Office registered the designs:

The determination of whether a work is “subject to copyright protection is a matter of law for the Court.” William A. Graham Co. v. Haughey, 430 F. Supp. 2d 458, 465 (E.D. Pa. 2006) (citing Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 34 n.5 (1st Cir. 2001)). The issuance of a certification by the Copyright Office does not resolve the question of whether an item is copyrightable; in the context of a challenge that a work lacks sufficient creativity to receive copyright protection, registration merely places the burden on the defendant to prove that the work is not copyrightable. See Masquerade Novelty, Inc. v. Unique Indus., Inc., 912 F.2d 663, 669 & n.7 (3d Cir. 1990); see also Haughey, 430 F. Supp. 2d at 468 (“[The Third Circuit] Court of Appeals has recognized that ‘a claim to copyright is not examined for basic validity before a certification is issued.’” (quoting Masquerade Novelty, 912 F.2d at 667)).