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IP/Entertainment Case Law Updates

Pollick v. Kimberly-Clark Corp.

District court denies defendant’s motion for reconsideration of dismissal of copyright infringement action involving dispute between designers of “diaper jeans” and “jeans diapers,” holding that diapers, when viewed as a whole, were not substantially similar.

Plaintiff, designer and owner of copyright in “diaper jeans,” brought suit against defendant, manufacturer of Huggies® “jeans diapers” for copyright infringement, alleging that defendant created unauthorized reproductions and derivatives of his work. The court previously granted defendant’s motion to dismiss, holding that plaintiff had not stated a claim of copyright infringement. Plaintiff moved for reconsideration of the dismissal and the court denied the motion, finding that it presented the same issues previously ruled upon by the court – whether the diapers, when viewed as a whole, are "substantially similar." The court also rejected plaintiff’s argument that because the diapers are "thematically related," the court's previous point-by-point comparison was insufficient to support an absence of substantial similarity.

Noting that courts will not grant motions for rehearing or reconsideration that merely present the same issues already ruled upon, either expressly or by reasonable implication, the court found plaintiff’s motion for reconsideration reasserted his argument that defendant infringed his copyright because the parties' products shared common themes – each show stitching, a blue color, pockets, belt loops, and an exterior label – and once again found the argument “unpersuasive.” As it had in its previous opinion, the court reasoned that enumerating all of the differences between the parties' works was both inefficient and unnecessary, since a simple visual comparison showed not only that the diapers are not substantially similar, but that they are substantially different. Nonetheless, the court undertook a “brief review” of some of the differences in order to illustrate the broad divergence in the aesthetic appeal of the works, citing differences in color, pattern, stitching, number and placement of front pockets, front fly, front and back belt loops, back label and back waist, and concluded: “In sum, the aesthetics of the diapers are not substantially similar – they are, in fact, substantially different.”

Plaintiff argued that where similarities are related thematically, the court must look at these similarities holistically and give greater weight to what would otherwise be slight similarities. The court acknowledged that it must look at all similarities – whether slight or otherwise – as a whole to determine whether collectively they could prove substantial similarity, and that one relevant consideration to this “holistic” assessment is whether the works have "thematically related" similarities or merely random similarities scattered throughout the works. Copyright protects against unauthorized copying and random, scattered similarities are less likely to suggest copying to a lay observer than systematic, concentrated similarities.

The court stated, however, that plaintiff does not hold a copyright to the general concept or "theme” of diapers resembling jeans, but rather in his particularized expression of a diaper resembling jeans. While the two works share a general concept and superficial similarities incident to this general idea, such as stitching and pockets, when considered as a whole, no reasonable observer would conclude that plaintiff's expression of his "diaper jeans" is substantially similar to defendant's expression of its "jeans diapers." Rather, a reasonable observer would conclude that these two expressions are substantially different.

The court also denied plaintiff's request for reconsideration of its award of attorneys’ fees, finding that plaintiff’s complaint was objectively unreasonable in light of well-established law that plaintiff's copyright did not confer a broad right to exclude others from producing diapers designed to resemble jeans but a narrow right to prevent others from reproducing his particular expression of diaper jeans, and that the two works were not substantial similar.