USCA Second Circuit, November 20, 2012

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  • Second Circuit affirms summary judgment in favor of defendant on copyright infringement claim, finding no substantial similarity between the figures in plaintiff’s copyrighted photograph and defendant’s line of Bratz dolls.

Plaintiff, photographer Bernard Belair, brought suit against defendant MGA Entertainment, Inc., alleging that MGA’s Bratz line of dolls unlawfully infringed on a copyrighted image that he created for a Steve Madden shoe advertisement. The district court granted MGA’s motion for summary judgment, finding that no reasonable trier of fact could find that any of the Bratz dolls are substantially similar to the figures depicted in Belair’s copyrighted image. (Read our summary of the district court’s decision here.) Belair appealed and the Second Circuit affirmed, finding no substantial similarity between the subjects in plaintiff’s image – the “Devil” Girl and the “Angel” Girl – and the Bratz dolls.

At the outset, Belair argued that the district court improperly applied the more rigorous “discerning observer” test to reach its conclusion that no substantial similarity existed, and that the court should have used the more lenient “ordinary observer” test. The Second Circuit rejected his argument, finding that, under either test, no substantial similarity existed: “We need not conclusively decide which standard should apply because, even under the ordinary observer test, the record reveals no triable issue of fact as to substantial similarity… On our independent comparison of the figures depicted in Belair’s photograph and the Bratz dolls, we reach the same conclusion as the district court: the images do not convey a substantially similar aesthetic appeal.”

Noting that the subjects in Belair’s work shared certain characteristics with the Bratz dolls – exaggerated heads, eyes, lips, and small noses and waists – the court concluded that these “general similarities” are “outweighed and overshadowed by significant distinctions that contribute to the different aesthetic appeals of the Angel/Devil Girls photograph and the Bratz dolls.” For example, the court noted that while Belair’s photograph depicted two young women of opposite characters, one styled as a “Devil” and the other as an “Angel,” the Bratz dolls portray young women who share and are defined by a common characteristic: their “passion for fashion.” In addition, the court noted that the subjects did not wear the same type of clothing (beyond “chunky-heeled shoes” that were the fashion at the time), have different hair and makeup (only the “Devil” girl wears extensive makeup like the Bratz dolls, although darker and more “smoldering” rather than the colorful makeup of the dolls; in contrast, the “Angel” doll appears to wear no makeup), and have differing facial expressions (the facial expressions of the Angel/Devil girls show contrasting emotions of rebellion and innocence; the facial expressions of the Bratz dolls are “vacuous and inscrutable”).