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The ordinary observer test of substantial similarity involves an examination of "total concept and feel," which in turn can be guided by "good eyes and common sense."
Plaintiffs, Judi Boisson and her wholly-owned company, American Country Quilts and Linens, Inc., d/b/a Judi Boisson American Country, brought suit alleging that defendants Vijay Rao and his wholly-owned company Banian Ltd. illegally copied two quilt designs for which plaintiffs had obtained copyright registrations. Following a bench trial, the district court ruled that defendants' quilts were not substantially similar to what it deemed were the protectible elements of plaintiffs' works. Plaintiffs appealed.
Did the defendants infringe on the plaintiffs’ copyright?
Yes, with respect to certain quilts of the plaintiff.
The court of appeals found that although the trial court properly articulated the "more discerning" ordinary observer test when comparing the contested works, its application of that test was too narrow. Notably the lower court failed to consider the overall look and feel brought about by the plaintiff's arrangement of unprotectable elements. Hence, the appellate court disagreed with part of the district court's ruling. The court found some instances of copyright infringement. Specifically, the appeals court found defendants' versions I and II of their "ABC Green" quilts infringed on plaintiffs' "School Days I" quilt and remanded to the district court for a determination of the appropriate remedies.