New York artist and advertising designer Bernard Belair has appealed the decision of the District Court for the Southern District of New York granting summary judgment for non-infringement in favor of defendant MGA Entertainment, Inc. (“MGA”). In 2009, Mr. Belair brought a copyright infringement action against MGA, alleging that MGA’s line of Bratz dolls infringed an “Angel/Devil” advertisement that he created for Steve Madden in the 1990s. The District Court dismissed the action on the ground that no substantial similarity existed between the Bratz dolls and the “Angel/Devil” advertisement.

Substantial similarity is the governing standard in determining copyright infringement. To determine whether an accused work is substantially similar to the plaintiff’s work, courts compare the works using a number of tests. In his appeal, Mr. Belair argued that the District Court committed reversible error by applying the “more discerning” test instead of the “ordinary observer” test to determine substantial similarity. While the “ordinary observer” test asks whether the average person would recognize that the accused work had been copied from the plaintiff’s work, the narrower “more discerning” test allows for a comparison of the works after eliminating non-protectable elements from the copyrighted work.

Noting the distinctions between the substantial similarity tests, Mr. Belair alleged that the District Court’s application of the “more discerning” test based on the “limited range of proportions available to a photographer or doll maker seeking to depict a stereotypically attractive young woman,” was without basis. This error also resulted in undue attention to insignificant differences between the Bratz Dolls and “Angel/Devil” advertisement such as clothing and packaging. As a result, and in light of evidence demonstrating that MGA had access to and intentionally copied the “Angel/Devil” advertisement, Mr. Belair argued that MGA could not “avoid liability by pointing to things that are different in its accused product.”

This case presents an interesting question as to the relevance of an alleged infringer’s access to a copyrighted work and the scope of comparison in determining substantial similarity for copyright infringement. Arent Fox is continuing to monitor this case as well as other cases involving copyright infringement. Please contact Anthony Lupo or Luna Samman with questions.