A recent decision of the United States Court of Appeals for the First Circuit shows how independent creation can be a defence to a claim of copyright infringement.

The Facts

Mag Jewelry ("Mag") owned the copyright relating to a necklace whose pendants were comprised of four crystal stones in the shape of an angel (the "Angel Design"). In December 2001 Mag found that a similar necklace was being sold at a large U.S. retailer (the "Retailer"). Mag brought an action for infringement against the Retailer and its supplier, Style Accessories, Inc. ("Style"). The defendants denied copying of the Angel Design and claimed their jewellery was based on an identical design independently created by a third party.

Mag's principal created the Angel Design and obtained a copyright registration in 1995, claiming that year as the year of its creation and June 1, 1995 as the date of first publication. After it obtained the registration, Mag sent letters to a number of individuals and businesses demanding that they stop selling similar angel design necklaces.

One letter was sent to a designer in Rhode Island (the "Designer") who was selling an angel design necklace virtually identical to Mag's. The Designer claimed he created his design in the summer of 1994 and had been selling and shipping it since September 1994. The Designer and Mag agreed they would both sell their angel design necklaces without interference or threat of suit from the other.

Style was a customer of the Designer. Style originally purchased the angel design necklaces from the Designer and then subsequently had similar pieces produced at a lower cost by two other companies. Style defended the proceedings brought by Mag on the basis its design originated from the Designer who independently created it.

The Trial

To establish copyright infringement a plaintiff must prove: (1) ownership of a valid copyright, and (2) copying of the protected work by the alleged infringer.

At trial the court concluded that Mag had failed to establish that Style had copied its Angel Design since Style's design was adopted from the Designer's independent creation.

The Appeal

On appeal it was acknowledged that if a work is original it may command copyright protection even if it is completely identical with a prior work so long as it was not copied from the prior work and was created by the independent effort of its author. Mag was unable to convince the Court that the Trial Judge had erred in finding that the Designer had independently created his design and that Style had copied that design, not the plaintiff's design. As a result Mag was unsuccessful in its appeal.


Canadian law is of the same effect. To show infringement of copyright two elements must be present. First, there must be sufficient objective similarly between the infringing work and the copyright work or a substantial part thereof. Second, the copyright work must be the source from which the infringing work was derived. Independent creation is a defence so long as there was no access to the copyright work or copying.