Court Finds Holes In Plaintiff's Case Alleging Copyright Infringement Of Lace Designs

• Published date: 02 November 2022
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Frankfurt Kurnit Klein & Selz
• Author: Mr Brian Murphy

Plaintiff Klauber Brothers has been making lace for more than 150 years. Defendant Badgley Mischka produces (among other things) bridal dresses and, one can assume, is always itching for interesting and intricate lace designs.

Last year, Klauber sued Badgley (and retailer Saks Fifth Avenue) in the SDNY, alleging that a Badgley garment (below on the right) incorporated fabric that infringed upon one of Klauber's designs (below on the left):

The defendants moved to dismiss the complaint on the grounds that Klauber had failed to properly plead facts to support that the defendants had access to (and therefore copied) Klauber's design. The court agreed with the defendants and dismissed the case.

To prove copyright infringement, a plaintiff must demonstrate (1) ownership of a valid copyright in the work and (2) copying, by the defendants, of protected aspects of the plaintiff's work. The second prong, in turn, requires the plaintiff to show both that (a) the defendants actually copied the work, and (b) the defendants' copying constituted "unlawful appropriation" (or, to use Nimmer's term, "actionable copying"). It is rare that a plaintiff will have direct evidence of actual copying. Instead, typically, actual copying is proven by circumstantial evidence that (i) the defendant had access to the plaintiff's work, and (ii) the two works share similarities probative of copying rather than coincidence, independent creation, or prior common source. (Nimmer calls this "probative similarity.")

Access Via Widespread Dissemination

Klauber argued that the defendants' access could be presumed because its lace design was widely distributed. Widespread dissemination of a copyrighted work - for example, of a song that becomes an ear worm because it is in heavy rotation on radio stations - can give rise to an inference of access. However, Klauber's complaint specified only that it had distributed a specific quantity (23,881 yards) of lace in a general location (New York City) during a general time period ("beginning in 2016"). The court found that these facts, standing alone, were not sufficient to support that the distribution was sufficiently widespread to give rise to an inference of access.

Moreover, Klauber had failed to plead facts that showed a "plausible" link between the distribution of its lace and the defendants. In the complaint, Klauber alleged, upon information and belief, that the defendants had accessed Klauber's lace designs "including without limitation"...