Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc.
338 F.3d 127, 2003 WL 21750634 (2003)
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Rule of Law:
Copyright protection extends to the original selection, coordination, and arrangement of public domain elements. A work that copies this protected expression constitutes infringement, even if the infringer's modifications create a different 'total concept and feel' in the final product.
Facts:
- James Tufenkian created the 'Floral Heriz' carpet design by digitally combining and modifying elements from two public domain carpets, the 'Battilossi' and the 'Blau'.
- Tufenkian's primary creative contribution was taking a portion of the symmetrical Battilossi field, selectively culling numerous specific motifs to create a more open and asymmetrical aesthetic, and elongating the result.
- He combined this modified field with a modified border from the Blau carpet and added two minor borders of his own creation.
- Bashian retained Nichols-Marcy, a former Tufenkian associate familiar with the Heriz design, to create the 'Bromley 514' carpet.
- The Bromley design mimicked Tufenkian's particular selection and culling of motifs from the Battilossi field almost exactly.
- However, Bashian's designers added a second 'beetle' element to the Bromley's field, creating a more symmetrical and balanced look compared to the Heriz.
Procedural Posture:
- Tufenkian Import/Export Ventures, Inc. sued Einstein Moomjy, Inc. and others in the U.S. District Court for the Southern District of New York for copyright infringement.
- Both parties filed motions for summary judgment on the issue of infringement.
- The district court granted summary judgment to the defendant, Bashian.
- The district court found Tufenkian's copyright was valid and that Bashian had actually copied parts of the design, but held that there was no substantial similarity to the protectable elements of Tufenkian's work.
- Tufenkian, as the appellant, appealed the district court's judgment to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does a textile design constitute copyright infringement if it copies another work's particular and original selection and arrangement of public domain elements, even though the allegedly infringing design's 'total concept and feel' differs due to its own additions and modifications?
Opinions:
Majority - Calabresi, J.
Yes. A textile design that copies another work's original selection and arrangement of public domain elements is infringing, even if modifications create a different overall aesthetic. The district court erred by focusing exclusively on the 'total concept and feel' of the two rugs and failing to recognize that infringement can occur through the copying of substantial, protected portions of a work. Tufenkian's non-mechanical, selective, and particularized culling of motifs from the public domain Battilossi carpet is precisely the type of original selection and arrangement that copyright law protects under the principles established in Feist. Bashian's Bromley design is a 'virtually exact copy' of this protected expression. The addition of a second 'beetle' element to create symmetry does not excuse the copying of the remainder of the protected design, echoing the principle that 'no plagiarist can excuse the wrong by showing how much of his work he did not pirate.'
Analysis:
This decision refines the 'substantial similarity' analysis for derivative works, clarifying that the 'total concept and feel' test is not the sole determinant of infringement. The court emphasizes that copying an author's original selection and arrangement of public domain elements is actionable, even if the infringer adds new elements that alter the overall aesthetic. This precedent prevents infringers from escaping liability by making superficial changes to a copied work, thereby strengthening protection for creative compilations and derivative works. Future cases will likely look beyond the overall aesthetic and conduct a more granular analysis of whether specific, protectable creative choices have been appropriated.
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