Belair v. MGA Entertainment, No. 11—5259—cv., 2012 WL 5862339 (2d. Cir. Nov. 20, 2012)

MGA Entertainment (“MGA”), creators of the Bratz dolls were found not to infringe the copyright in Bernard Belair’s photograph, which featured “Angel” and “Devil” girls. Belair’s photograph was featured prominently in advertising for Steve Madden Shoes.

To succeed on a claim of copyright infringement, the plaintiff must show actual copying and a substantial similarity between the works at issue. MGA conceded actual copying, but argued that, despite the copying, the two works were not substantially similar. In evaluating whether there was substantial similarity between the works, the district court applied the “discerning observer” test, which involves a comparison of only the protectable elements of the works at issue. Concluding that there was no substantial similarity, the district court entered summary judgment against Belair.

On appeal, Belair argued that the “discerning observer test” was inappropriate and that the “ordinary observer test” should have been applied instead. Unlike the discerning observer test, the ordinary observer test involves a side-by-side comparison of the complete works at issue. The Second Circuit, however, found that application of either test would not save Belair’s infringement claim. Acknowledging the presence of some similarities, the court found the number of distinctions to be too great to amount to infringement.

The court noted that the Bratz dolls did not wear the same clothing or possess some key characteristics as the Belair figures (i.e. horns and a long tail on Belair’s devil character). Sealing Belair’s fate, however, was the court’s finding that the Bratz dolls main aesthetic appeal “derives not from their expressions, but from their heavy makeup and the funky ‘fashion’ that is their ‘passion.’” Thus, the Bratz dolls appeal as funky, passionate, fashonistas was sufficient to overcome their similarity to Belair’s figures. Accordingly, MGA’s dolls may be Bratz, but they are not infringers.