Phillips Nizer LLP
About Phillips Nizer LLP Phillips Nizer LLP Attorneys Phillips Nizer LLP Industry Teams Phillips Nizer LLP Practice Areas Phillips Nizer LLP News and Events Phillips Nizer LLP Publications
About Us Professionals Industry Teams Practice Areas News & Events Publications
     Search all
     Fashion Industry Law Blog
     Legal Alerts

Phillips Nizer LLP Articles

Article - Can You Prove a Copycat Has Violated a Copyright?

Can You Prove a Copycat Has Violated a Copyright?

Do you believe that someone has copied your designs? Legally, a copycat may not be necessarily guilty of copyright infringement. A recent case involving a comic book character and a movie character, both with hairdryers in hand, provides a valuable reminder of what is and what is not protected by copyright law.

It's a battle over whether a comic book creator can protect his hairdryer-toting, terrorist-fighting figure from being copied by big-time Hollywood studios. Robert Cabell, an author, documentary filmmaker and illustrator, sued Sony Pictures, Columbia Pictures, Adam Sandler, Robert Smigel and Judd Apatow (S.D.N.Y. Docket No. 10 CV 2690), alleging You Don't Mess With the Zohan (in which Sander plays a terrorist-fighting hair dresser) infringed his copyrights of his own creation of "Jayms Blonde," a comic book character who similarly fights crime and wields an awfully hot hairdryer. The New York District Court (trial court) granted summary judgment against Cabell dismissing his copyright infringement claims. Last week, the Court of Appeals in New York (one level below the U.S. Supreme Court) affirmed the District Court's decision.

In considering whether an infringement occurred, the court (because this was a summary judgment motion, the court reviewed the evidence; had this been a jury trial, the jury would have determined issues of fact) applies the "ordinary observer" test. The copyright owner must show that when viewed by the average observer under ordinary circumstances, the observer would recognize in the copied work protected portions of the plaintiff's work, and believe that those protected elements in the copied work were taken from the protected work.

The court first considered the visual depictions. However, Cabell "declined to specify which Blonde images were infringed" and instead asserted that all of the Blonde images "are derivative of the seminal images of Jayms Blonde with the hair dryer pointed at the viewer" [which to movie lovers also summons the image of James Bond pointing his gun at the viewer in the opening of several of the 007 movies].

In response, the court stated that before applying the substantial similarity test, it had to separate the ideas (which are not protected by copyright law) from the expressions of ideas (which are protected by copyright law). The court ruled that pointing a blow dryer as if it were a gun is not a protected expression of an idea, but instead is merely an idea which is not subject to copyright protection.

As to the expression of Blonde (and Zohan) pointing the hair dryer as if it were a gun, the court found that Cabell did not allege that his depictions of Blonde were substantially similar to the depictions of Zohan. The court even contrasted the depictions of the hair dryers, finding significant differences (and, thus, no infringement even if it had been alleged, which it was not).

But Cabell claimed that the depiction of the two characters, "with bodies posed in a [similar] manner and their faces [bear] a demeanor … suggest[ing] that these characters are secret agents of some kind" was an infringement. Unfortunately for Cabell, the Court of Appeals has already ruled that a "fighting pose" is an idea that is not protected by copyright law.

Aside from the unprotected ideas, the court found no other substantial similarities (the court provided further analysis of how the characters were depicted in the works).

Some Ideas are Unprotectable
The court also rejected Cabell's final argument, that Blonde was entitled to special protection as a comic book character. "While courts have found comic book characters are copyrightable, protection is limited to markedly similar characters."

Accordingly, the court found that Cabell failed to identify sufficient similarities between Blonde and Zohan as to which copyright protection applied.

Cabell also claimed that the Zohan storyline infringed the Blonde storyline. Here, the court analyzed the two storylines (again distinguishing between ideas and expression) and found that to the extent there was any similarity, "they end with an unprotectable idea."

The court also granted summary judgment against Cabell on his unfair competition claim (not part of copyright law, but rather a cause of action under New York law).

If you think that your designs have been copied, make sure you can prove copyright infringement. Although this copyright case did not involve the children's industry directly, fashion and product design similarities are a common problem for many in the juvenile business. To protect your own designs, intellectual properties and business, it is a good investment to seek the advice of an attorney that specializes in the complexities of copyright law even before you may think you need it. That is one business decision in which it is good to be a copycat!


"Can You Prove a Copycat Has Violated A Copyright" also appeared on The Giggle Guide (  Re-production or re-printing in part or whole is strictly prohibited without the expressed written permission of Phillips Nizer LLP.