Copyright law can be daunting for even for attorneys. For artists, indie film makers, content providers and crafters copyright law can seem like… …well, like a “closet psycho.”
What’s a ‘closet psycho?’ In colloquial parlance, ‘closet psycho’ describes a person who, on the surface, seems to have their act together, but once you get to known them, you start feeling like you’re sharing space with Norman Bates.
Yes, copyright law can be a bit like that. It seems structured and logical at first. It has an entire U.S. code section devoted to it. It has “titles” and “chapters” that organize it and Supreme Court cases that analyze it. But try to dig into copyright law to get a somewhat clear idea of what constitutes, say infringement. Well, that’s when the “closet psycho” part comes into play.
Copyright law can seem confusing, erratic, piecemeal and arbitrary. This is one reason why referring to actual court decisions in copyright cases is so valuable. Although the facts will differ in every case, court decisions help us determine how the language of the law will be applied in practice.
For most makers/crafters, though, it’s unlikely that anyone other than attorneys and judges will have the time or desire to read a court decision. But there are some court decisions worth chatting about due to the lessons that they teach us.
If you’re a crafter/maker, and particularly if you quilt, the American Country Quilts and Brown v. McCormick cases are both interesting and instructive. Each case involved unauthorized copying of a quilt design and, in each, the court determined whether the copying constituted copyright infringement. Although both cases were decided over ten years ago, courts continue to look to them for guidance on various aspects of copyright law. To avoid an info overload, we’ll look at the cases in separate posts; today the American County Quilts case and next week well be taking a look at the Brown v. McCormick case.
So, let’s take a look at the first case:
American County Quilts (Judi Boisson) v. Banian LTD et al.
Judi Boisson, who owns American County Quilts and Linens, was the plaintiff in the American Quilts case. If you’ve not heard of Judi before, she is an accomplished folk artisan whose work has appeared in museums and in the White House (if you’re interested in learning more about Judi’s work, you can go to her website at the link here or here (quilts)).
The particular quilts at issue in the case were Judi’s “alphabet” quilts that she named “School Days I” and “School Days II.” The quilts each have square blocks arranged in horizontal rows and vertical columns having capital letters displayed in order. The last row of blocks has pictures rather than letters. The letters are all different colors and are offset by a white border and colored edging. Judi had obtained copyright registrations on School Days I & II and she also included a copyright notice in her catalogs.
As for the allegedly infringing quilts, the defendant, Vijay Rao, had imported them from India and he also claimed that he had some input in modifying the original design of the quilts he sold.
Judi filed suit against Vijay Rao and his company (Banian LTD) in 1997 because she claimed that Vijay had illegally copied two of her quilt designs. When Judi first filed suit, the lower court in New York found that the two quilts at issue weren’t so similar and it denied her copyright infringement claim. Afterwards, Judi appealed to the 2nd Circuit Court of Appeals.
The appeals Court noted that Judi, as the plaintiff, had to first show that Vijay had “actually copied” her quilts. The law permits plaintiffs to show copying in many different ways, including by direct and indirect evidence. But since Vijay didn’t dispute the copying allegation, the Court found that Judi had established “actual copying.”
The Court, though, went on to note that “not all copying is copyright infringement.” To figure out if Vijay’s copying constituted copyright infringement, the Court needed to determine whether Judi had shown that there were “substantial similarities” between her quilts and Vijay’s quilts. To do that, the Court had to first figure out which aspects of Judi’s quilts had gained copyright protection.
Vijay, as the defendant in the case, tried to show that alphabet quilts had existed for over a century, and were therefore in the public domain. Although the Court agreed that alphabet quilts had been around for a long time, it disagreed that the particular arrangement in the School Days I & II quilts wasn’t protected by copyright law. In other words, the Court noted that Judi’s arrangement of the letters in a five-by-six block format met some minimum level of creativity, which is all that is required for copyright protection. Further, since Judi had U.S. copyright registrations on her designs, Vijay was the party who had the burden of proving that the layout wasn’t original.
The Court actually used Vijay’s evidence to support that Judi’s designs are protectable under copyright law. Vijay had shown the Court many examples of antique alphabet quilts. Using those quilts as an example, the Court noted that many different layouts and arrangements of the letters were possible and that none had the same layout as in Judi’s quilts.
After finding that Judi’s quilts were entitled to copyright protection, the Court then addressed whether Vijay’s quilts were so similar that they infringed Judi’s copyrights. To do this, the Court compared the quilts visually. Usually, an allegedly infringing work is “substantially similar” if an ordinary observer would usually overlook the differences in the works and find their aesthetic appeal to be the same. But Judi’s work did include some public domain elements (e.g. the alphabet letters), so the Court needed to use a slightly different test.
Many artistic works are like Judi’s quilts in that they include some elements that are in the public domain. Unfortunately, though, courts struggle with the issue of how they should go about comparing such works with a potentially infringing work. Most courts, though, agree that the public domain elements should not be separated out before comparing the works. In other words, the overall concept and feel of the work is still important, even where a work includes some public domain elements.
So, in Judi’s case the Court couldn’t base a finding of infringement just on the fact that Vijay’s quilts also included alphabet letters. But if Vijay’s quilts substantially captured the overall concept and feel of Judi’s quilts (e.g. the arrangement and shapes of the letters, colors and the placement of icons), then a finding of infringement was appropriate.
The Court noted that Judi’s School Days 1 quilt had six horizontal rows, with each row including five blocks with a capital letter or icon in each block. Also, the quilt included only certain selected alphabet letters with four icons following the letters in the last row. The four icons were a cat, a house, a flag (with one star) and a basket.
One of Vijay’s quilts also had capital letters arranged in the same formation as in Judi’s quilt. The last row of blocks in Vijays quilt had a cow jumping over the moon, a sailboat, a bear and a star. Vijay’s other quilt was almost the same as the first, but had a teddy bear instead of the bear and the star was a different color.
The Court went on to find that the three quilts had “an enormous amount of sameness.” In particular, the Court found that:
- all three quilts used a combination of contrasting color fabrics or a combination of solid and polka-dot fabrics for the blocks and alphabet letters. Many of the letters and block backgrounds in Vijay’s quilts had the same color combination as in Judi’s quilt.
- Vijay’s quilts used the same unique shape for some of the alphabet letters;
- The body of Vijay’s quilts had the same diamond-shaped quilting as Judi’s quilt and a wavy quilt pattern in the plain white border surrounding the quilt blocks; and
- All three quilts were edged with 3/8 inch green binding.
In light of all of the similarities, the Court found that Vijay’s first quilt was similar enough to Judi’s designs to demonstrate illegal copying. Although the icons used in Vijay’s quilts were different from those in Judi’s quilt, the Court found that there were overwhelming similarities in the color choices and arrangement of the letters and icons.
Some of Vijay’s other quilts, though, didn’t infringe Judi’s designs because the letters, icons and colors, while having some similarities, were arranged differently.
So, here’s some lessons from the American Quilts case:
♥Not all copying is copyright infringement.
♥A copyright registration is valuable. It helps establish a rebuttable presumption that your work is ‘original’.
♥If a work is not “original”, then it cannot be protected under copyright law.
♥Copyright protection extends only to the particular expression of an idea and not to the idea itself. For example, in the American Quilts case, the idea of using the alphabet in a quilt design was not protected by copyright, but Judi’s particular expression of that idea (e.g., her selection of color, letter shape and placement) was protectable.
♥Simply because a work has a copyright registration doesn’t mean that every element of that work is protected. For example, elements of the work that are in the public domain are not protectable.
♥Color by itself isn’t subject to copyright protection, but an original combination or arrangement of colors with a minimum degree of creativity is eligible for copyright protection.
♥An infringer can’t get around an infringement claim by just adding some minor different aspects to the work if the overall look and feel of a copyrighted work has been copied. For example, in the American Quilts case, the Court found copyright infringement, notwithstanding that Vijay’s first quilt had different icons in the last few blocks of his quilt design.
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