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Fooey Inc. v. Gap, Inc.

United States District Court, Seventh Circuit

May 17, 2013

FOOEY INC., Plaintiff,
GAP, INC., Defendant.


ROBERT W. GETTLEMAN, District Judge.

Plaintiff, clothing retailer Fooey Inc., filed a two-count complaint against defendant Gap, Inc., another clothing retailer, alleging copyright infringement of its t-shirt designs ("the Works").[1] One of the Works features a paper airplane on the front of a t-shirt and folding instructions on the back ("the Airplane Work"). The other depicts a dandelion ("the Dandelion Work"). Defendant has filed a motion to dismiss the complaint under Fed.R.Civ.P. 12(b)(6), arguing that its own t-shirt designs are not substantially similar to the Works. For the reasons stated below, defendant's motion to dismiss is granted.


Motion to dismiss

Defendant argues that dismissal under Rule 12(b)(6) is appropriate because its t-shirt designs are not substantially similar to the Works. The purpose of a 12(b)(6) motion is to test the sufficiency of a complaint, not to decide the merits of the case. Gibson v. City of Chicago , 910 F.2d 1510, 1520 (7th Cir. 1990). A complaint must state a claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007).

In copyright infringement cases, a court may dismiss under Rule 12(b)(6) when a plaintiff's complaint fails to establish a plausible basis for copyright infringement-substantial similarity between the works in question. O'Leary v. Books, 2008 WL 3889867, at *2 (N.D. Ill. 2008) (granting motion to dismiss where plaintiff failed to allege that passages in her novel-a romance between a rock star and a paralegal-were substantially similar to passages in defendant's novel, which concerned a counter-terrorism unit); Theotokatos v. Sara Lee Pers. Prods. , 971 F.Supp. 332, 343 (N.D. Ill. 1997) (granting motion to dismiss where the protectable expression of plaintiff's Olympic t-shirt designs was not substantially similar to defendant's expression); see also Peters v. West , 692 F.3d 629, 636 (7th Cir. 2012) (affirming motion to dismiss where plaintiff failed to "plausibly allege" substantial similarity). Accordingly, this court evaluates substantial similarity in determining whether dismissal is appropriate.

Copyright infringement

Plaintiff alleges that the Works contain protectable elements that defendant has misappropriated, resulting in substantially similar t-shirt designs. To state a claim for copyright infringement, a plaintiff must establish, (1) ownership of a valid copyright, and (2) copying of the work's constituent, original elements. Feist Publn's, Inc. v. Rural Tel. Serv. Co. , 499 U.S. 340, 361 (1991); JCW Inv., Inc. v. Novelty, Inc. , 482 F.3d 910, 914 (7th Cir. 2007). Federal copyright registration constitutes prima facie evidence of validity. 17 U.S.C. § 410(c) (2006). Plaintiff holds federal copyright registrations in both of the Works, thus establishing copyright validity, which defendant does not contest.

Scope of copyright protection

The first step in the infringement inquiry is to identify the protectable expression found within the copyrighted works. See Theotokatos , 971 F.Supp. at 341. Although defendant acknowledges plaintiff's copyright ownership, defendant challenges the scope of that protection, arguing that certain elements of the Works are not protectable. Copyright protection extends only to original elements of a work that, (1) were created independently by the author, and (2) demonstrate a modicum of creativity. Feist , 499 U.S. at 345.

Defendant advances several arguments supporting the limitation of plaintiff's copyright. First, defendant correctly points out that copyright protection does not extend to the idea of an airplane or dandelion. Second, with respect to the Airplane Work, defendant argues that the folding instructions constitute a method or utilitarian explanation and likewise fall outside the scope of copyright protection. Third, defendant argues that certain elements within the Works are not original because they are standard to any depiction of a paper airplane or dandelion.[2] With respect to the Airplane Work, defendant argues that plaintiff's use of arrows, fold lines, and a looped flight path are standard elements, and therefore excluded from copyright protection unless copied exactly. Defendant argues that plaintiff's depiction of seeds scattering about in the wind in the Dandelion Work is also unprotected.

Plaintiff counters that it does not claim copyright protection in the idea of a paper airplane or the method used to create one, or in the idea of a dandelion. Rather, plaintiff contends, its expression of these ideas-evinced in its unique selection and arrangement of design elements, color scheme, and overall "feel"-warrants copyright protection.

Copyright protection does not extend to ideas. See 17 U.S.C. § 102(b) (2006); Seng-Tiong Ho v. Taflove , 648 F.3d 489, 497 (7th Cir. 2011). Methods and other utilitarian aspects of a work are similarly unprotected by copyright. 17 U.S.C. § 102(b); Incredible Techs. Inc. v. Virtual Techs., Inc. , 400 F.3d 1007, 1012 (7th Cir. 2005). Nevertheless, courts recognize originality where only a "modicum" of creativity is present. Feist, 499 U.S. at 46. Even a creative selection and arrangement of otherwise unprotected elements is still entitled to copyright protection. Id. at 348 (finding that telephone directory as a whole was protectable, even though individual listings were not). While the ideas and methods underlying the Works are unprotected by copyright, plaintiff's selection and arrangement of elements within the Works receive protection.

Under the sc§nes § faire doctrine, [3] however, a plaintiff cannot claim as original elements that are a natural result of his or her chosen subject matter. See Incredible Techs , 400 F.3d at 1011-12 (refusing to recognize golfers, golf clubs, sand traps, and water hazards used in arcade golf game as "original" when no arcade golf game could be created without them). Sc§nes § faire necessarily excludes elements that are "rudimentary, commonplace, or unavoidable." Bucklew v. Hawkins, Ash, Baptie & Co., LLP. , 329 F.3d 923, 929 (7th Cir. 2003). Where creative expression is inseparable from an underlying idea, copyright protects only against identical copying. Atari, Inc.v. N. Am. ...

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