Nativity-Themed 3D Cards Overcome Scènes à Faire and Merger Defenses at Pleadings Stage​

The court denied defendant’s motion to dismiss plaintiff’s infringement claim as to a nativity-themed set of the parties’ three-dimensional card designs and rejected defendant’s merger and scènes à faire arguments. “⁠[Defendant] argues that there likely are ‘only a limited number of ways of expressing the idea’ of a manger or nativity scene. That is, as [defendant] suggests, a nativity scene is virtually certain to include Baby Jesus, Mary, Joseph, wise men, and livestock inside a barn-like structure, as well as other accoutrements like the Star of Bethlehem. Accordingly, ‘the burden of proof is heavy on the plaintiff who may have to show “near identity” between the works at issue’ in order to succeed on an infringement claim. . . . [However,] [t]he Court observes that many of the figures in each scene have nearly identical silhouettes. For example, both sets of wise men feature one wise man on the left, carrying a spherical object, and two standing close together on the right, with the one in front carrying a square-shaped object. Both scenes feature angels in a similar posture, with seven notches on their wings and three creases in their robes. Further, both barns have roofs with five cross-beams and a quatrefoil shape on the front. Both also have a ‘front porch’ area with latticework that features a similar alternating pattern. Lanterns hang from the ceiling in each design. The centerpiece of each scene is, of course, a Baby Jesus; but both Baby Jesuses are lifting their right hands, are cast in yellow paper, and rest in white cradles. Because of these similarities, it is plausible that an ordinary observer would overlook the differences between [the parties’ works] and regard the aesthetic appeal of these two designs as the same, even setting aside the unprotectable aspects.”

LovePop, Inc. v. PaperPopCards Inc., 1-17-cv-11017 (MAD 2018-02-22, Order) (Patti B. Saris)

2018-02-26T12:46:03+00:00February 26th, 2018|Press|