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 (9th 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registration of unpublished works contained two published works.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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