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George S. Chen Corp. v. Cadona International, Inc.

The Ninth Circuit affirmed summary judgment for a defendant in a case involving the copyrights to animal-shaped wind chimes. The plaintiff conceded that its wind chimes are “approximately true to life.” The court held that the plaintiff failed to identify any elements that are not commonplace or dictated by the idea of a swimming dolphin or sitting frog sculpture. “Although a combination of unprotectable elements may qualify, GSC points to no elements that, considered together, have a sufficient quantum of originality for copyright protection.”

One justice dissented, arguing that whether or not the plaintiff’s wind chimes lacked originality should be an issue for the trier of fact. He noted that the defendant’s wind chimes are identical to the plaintiff’s chimes, and that the plaintiff owns registered copyrights for its designs. The dissenting justice wrote that “GSC owns copyright registrations for the works that Cadona has copied. Yet the majority holds that we should affirm summary judgment for Cadona because GSC failed to sufficiently identify any original elements of its works. That is not the law of this circuit or any other.”

The dissent argued that the plaintiff’s valid copyright registrations entitle its works to a presumption of originality and that to rebut this presumption of originality, there must be "a showing on the part of the defendant that the plaintiff's work is not original" (citing North Coast Indus. v. Maxwell, Inc., 972 F.2d 1031, 1033 (9th Cir. 1992)).

The defendant did not offer any evidence of its own to rebut that presumption, while the plaintiff’s president identified artistic choices made in creating the ornaments sufficient to raise a triable issue of fact on originality. He concluded by saying “[t]he majority apparently shares the district court's subjective opinion that the plaintiff's works are simply too ‘stereotypical’ to warrant copyright protection. But the Copyright Act does not allow copyright registrations to be invalidated on nothing more than a failure to conform to a particular judge's idiosyncratic notions of creativity. An artist or craftsperson can create a work based on an animal using his skill and artistry and imagination that is ‘original.’ He can copyright his creation. And if a defendant makes an exact copy of that work, that artist is entitled to have a jury decide whether or not his work is original enough.”