Copyright infringement is established when the owner of a valid copyright demonstrates unauthorized copying. To demonstrate unauthorized copying, a plaintiff must first show that his work was actually copied; second, he must establish substantial similarity or that the copying amounts to an improper or unlawful appropriation, that is, that it was protected expression in the earlier work that was copied, and that the amount that was copied is more than de minimis. The defendant can defeat a prima facie showing of infringement by proving that the doctrine of fair use permits her employment of the plaintiff's design.
In March 1995, the plaintiff, James Tufenkian, a designer and manufacturer of Tibetan style carpets, filed a copyright registration for the "Floral Heriz" ("Heriz") carpet design. Tufenkian designed the Heriz by taking two public domain images and then selecting a number of motifs from those images. In the process, Tufenkian created an asymmetrical pattern. Sometime in 1995, Bashian Brothers, Inc. retained a former employee of Tufenkian to oversee the designing of a carpet named “Bromley 514”. Since the designers were familiar with the Heriz, some copying of Heriz’s design occurred. In November 1999, Tufenkian initiated a lawsuit, claiming copyright infringement and seeking various injunctive and monetary remedies. Both parties moved for summary judgment on the issue of copyright infringement. The district court awarded summary judgment to Bashian, concluding that Bromley 514 was not substantially similar to the protected expression in the Heriz. The district court held that the Bashian’s carpet design did not infringe on protected expression in Tufenkian’s design, concluding as a matter of law that, whatever substantial similarity there may be, it emerged from unprotected public domain materials in the allegedly infringed design. Tufenkian appealed the decision.
Did Bashian’s “Bromley 514” infringe on protected expression in Tufenkian’s “Heriz”?
In its decision, the appellate court concluded that the infringing work had copied the original and "particular" or "same" selections embodied in the allegedly infringed upon work. According to the appellate court, the number of motifs present (or absent) in the Bromley field which mirror those the Heriz selected (or deleted) in an original way from the public domain images was overwhelming. Moreover, the court found out that the structural layout of the elements is essentially the same in both designs. The court concluded that Bromley field is a near-exact copy of the Heriz field, and therefore infringing.