Copyright Law - Ninth Circuit: Dude, That's My Hawaiian Shirt

Fabric Design, Copyright Infringement, Access, Substantial Similarity, Correcting a Copyright Registration, Supplemental Registration, Invalidating a Copyright Registration, Motion for Summary Judgment

L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841 (9^th Cir. June 13, 2012)(as amended after rehearing en banc).  Fabric designer sues Aeropostale for copyright infringement over shirts made from floral design.  District court grants summary judgment and awards attorneys fees in favor of defendants.  Plaintiff appeals.  Ninth Circuit reverses, finding that sales of 50,000 yards of fabric by L.A.-based fabric wholesalers to fabric converters serving the same L.A.-based Aeoropostale created “reasonable possibility” that Aeropostale had access to the fabric and thus created a question of fact on access for the jury.  Ninth Circuit further finds that although there are differences, the fabrics are both extrinsically and intrinsically similar sufficient to bring the question of fact before the jury.  Differences could simply be explained by cheaper production process and a creative decision by an infringer not to borrow the entire original.  Question for the jury.  The opinion has an excellent discussion of Plaintiff’s quandary when it discovered that its group copyright registration of unpublished works contained two published works.  Plaintiff correctly contacted the Copyright Office and did a supplemental registration to delete the two published works.  The Ninth Circuit held that this error in registration did not invalidate the original registration of the fabric at issue in the case since the error was not one that would have caused the Register to refuse registration in the first instance.

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