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The determination whether there is substantial similarity is made by the "ordinary observer" test: whether the accused's work is so similar to the plaintiff's work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff's protectable expression by taking material of substance and value.
Plaintiff-appellee Wildlife Express Corporation made and sold children's duffel bags with sculpture animal heads and tails on the ends of cylindrical bags. Heads and tails resembled bears, pandas, ducks and elephants upon which registered copyrights were obtained. Plaintiff-appellee's bags were carefully examined by a foreign manufacturer. Defendant-appellant Carol Wright Sales, Inc. purchased duffel bags with heads and tails in the forms of a bear, panda, duck, and elephant from the foreign supplier and sold them through catalog mailings. Defendant-appellant received notice of re-delivery from U.S. Customs Service stating its bags infringed a copyright registered to plaintiff-appellee. The trial court concluded defendant-appellant infringed plaintiff-appellee's copyrights and awarded enhanced statutory damages by finding the infringement was willful. Defendant-appellant challenged the court's determination of substantial similarity between the two duffel bags and its finding of willfulness.
Under the circumstances, did the defendant-appellant infringed plaintiff-appellee’s copyrights?
The court noted that a plaintiff claiming copyright infringement must show both "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that were original." In this case, protection was claimed for the animal heads and tails themselves, and for the way they were placed on the duffle bags, but not for the general idea of animal heads on duffle bags. According to the court, the claim was consistent with the Copyright Act. The court further held the animal portions of the duffle bags were neither generic designs nor lifelike representations deserving of only narrow protection. There was certainly an imaginative artistic expression in the soft sculptured heads and tails. The court found that there was a remarkable resemblance between plaintiff’s and defendant’s works, as they were very similar in size, shape, pose, and feel. As such, the court upheld the trial court's finding of substantial similarity and its determination of willfulness as neither was clearly erroneous on the record.