Liability for copyright infringement can be found even without evidence that the infringing party had access to the copyrighted material, as was found in the recent case of Unicolors, Inc. v. Urban Outfitters, Inc., No. 15-55507 (9th Cir. 2017). The entry of judgement was upheld against Urban Outfitters, along with a finding of willfulness, for infringing upon the designs of Unicolors, a Los Angeles company in the business of designing and selling fabrics.
Unicolors’ design (“Subject Design”) was based on an original piece of art and turned into a design to be placed onto bolts of fabric. Unicolors registered this design with the Copyright Office, and sold 14,000 yards of fabric bearing the Subject Design between 2008 and 2011.
Urban Outfitters developed a dress (“Accused Dress”) with a design that was similar to the Subject Design. Unicolors sent a cease and desist letter to Urban Outfitters, and then filed a copyright infringement lawsuit. The District Court granted summary judgment to Unicolors, and a jury found that Urban Outfitters acted willfully during the infringing activity.
On appeal, the court held that both ownership of the infringed material and copying of the protected elements must be shown to prove copyright infringement. Copying can be shown by direct evidence, or by a combination of access and a substantial similarity between the copyrighted work and the accused work.
While there was no evidence of access in this case, the design had been purchased and disseminated widely. Even without proof of access, an inference of copying can be found by the court if the designs are strikingly similar. The two-part test used to find similarity of works used an extrinsic test, which looked at the objective elements of the works, and a subjective test, which looked at how a reasonable person would view the works.
The extrinsic test found that the design elements were nearly identical, and the intrinsic test also found that the designs were extremely similar. While summary judgement for copyright infringement should only be granted in rare cases, this was one of those exceptional cases. The court noted that when designs are so overwhelmingly similar that the possibility of independent creation is precluded, summary judgment is appropriate. Furthermore, evidence of access was not needed to prove copying in this case because of the striking similarity of the works, which eliminated the possibility of independent creation, coincidence, or a prior common source.
Finally, the court upheld the jury’s finding of “willfulness” on the part of Urban Outfitters. Although it was not shown that Urban Outfitters was actually aware of the infringing activity, evidence was provided showing that they followed a reckless policy of failing to check if their designs were copied from protected materials. A reckless disregard or willful blindness to a copyholder’s rights was sufficient to find willfulness.
Chernoff Law handles litigation matters throughout Arizona, including litigations related to copyright infringement. Contact us by calling 480-719-7307 to discuss your legal needs.