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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION RICHARD POLLICK, an individual, Plaintiff, v. KIMBERLY-CLARK CORPORATION, a Delaware corporation, Defendant. BRIEF IN RESPONSE TO MOTION OF KIMBERLY-CLARK CORPORATION TO DISMISS PLAINTIFFS COMPLAINT Case No.: 1:11 cv 12420 Hon. Thomas L. Ludington

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STATEMENT OF ISSUES PRESENTED 1. Is Plaintiffs copyright claim based entirely on unprotectable elements such

that it should be dismissed as a matter of law? Pollick suggests No. 2. Should Plaintiffs copyright claim be dismissed as a matter of law because

Plaintiffs design and Kimberly-Clarks design are not at all similar, let alone substantially similar? Pollick suggests No.

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CONTROLLING AUTHORITY

Bridgeport Music, Inc. v. WB Music Corp., 520 F.3d 588 (6th Cir. 2008) Winfield Collection, Limited v. Gemmy Industries, Corp., 147 Fed.Appx. 547, No. 041545, 04-2106, 04-1586, 2005 WL 2077510 (6th Cir. Aug. 29, 2005) Beaudin v. Ben and Jerrys Homemade, Inc., 896 F.Supp.356 (U.S.D.C. 1995)

ii

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TABLE OF CONTENTS PAGE STATEMENT OF ISSUES PRESENTED..i CONTROLLING AUTHORITY........ii TABLE OF AUTHORITIES........iv II. III. BACKGROUND ...................................................................................................... 1 ARGUMENT ........................................................................................................... 1 A. B. C. D. IV. Plaintiff States a Valid Claim for Infringement of His Protected Work ............... 1 Plaintiff is Asserting Rights Over Protectable Subject Matter. ........................... 2 Plaintiffs and Defendants Products are Substantially Similar .......................... 9 Defendant is Not Entitled to Costs or Fees ..................................................... 10

CONCLUSION ...................................................................................................... 12

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TABLE OF AUTHORITIES CASES

Baker v. Selden, 101 U.S. 99 (1879) ........................................................................... 6, 7 Beaudin v. Ben and Jerrys Homemade, Inc., 896 F.Supp.356 (U.S.D.C. 1995) .......... 10 Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267 (6th Cir. 2009) ........... 5, 9 Bridgeport Music, Inc. v. WB Music Corp., 520 F.3d 588 (6th Cir. 2008) ................ 10, 11 Davis v. American Broadcasting Companies, Inc., No. 1:10-CV-167, 2010 WL 2998476 (W.D.Mich. 2010) ......................................................................................................... 9 Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991)...................................... 5 Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)............................................................... 10 Frank Betz Assocs., Inc. v. J.O. Clark Construction, L.L.C., No. 3:08-cv-00159, 2010 WL 2253541 (M.D.Tenn., May 30, 2010)................................................................. 1, 9 Kohus v. Mariol, 328 F.3d 848 (6th Cir. 2003)......................................................... 2, 6, 7 Lexmark Intl, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004) ...... 1 Mazer v. Stein, 347 U.S. 201 (1954) ........................................................................... 2, 7 Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir.1960) ................ 10 Robert R. Jones Assocs., Inc. v. Nino Homes, 858 F2d 274 (6th Cir. 1988) ................... 7 Winfield Collection, Limited v. Gemmy Industries, Corp., 147 Fed.Appx. 547, No. 041545, 04-2106, 04-1586, 2005 WL 2077510 (6th Cir. Aug. 29, 2005) ......... 2, 3, 4, 8, 9

iv

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STATUTES 17 U.S.C. 102(b) ........................................................................................................... 2 17 U.S.C. 106(3) ........................................................................................................... 1

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I.

Background On July 20, 1981, the United States Copyright Office received Plaintiffs official

submittal for the registration of his Diaper Jeans artwork, and Plaintiff received a certificate of Copyright Registration on or about February 13, 1981. In October of 1981, Plaintiff submitted a copy of his copyrighted artwork to the Defendant, Kimberly-Clark. Defendant subsequently acknowledged Plaintiffs submission by mailing him, via firstclass mail, a copy of its Policy for Reviewing Patent Applications and a copy of its Policy for Reviewing Unsolicited Ideas. Defendant did not seek permission from

Plaintiff, and was not granted permission, in any manner, to reproduce, display, or otherwise exploit Plaintiffs copyrighted artwork. However, the Defendant has

reproduced, created an unauthorized derivative of, and distributed an unauthorized reproduction of the artwork in derogation of Plaintiffs exclusive rights under 17 U.S.C. 106(3). Plaintiff instituted the present suit against Defendant on the basis that

Defendant has willfully engaged in the infringement of Plaintiffs copyrighted artwork.

II. A.

Argument Plaintiff States a Valid Claim for Infringement of His Protected Work Copyright protection applies when a plaintiff can establish that it owns a valid

copyrighted work, and that the defendant clearly copied the plaintiffs work. See, e.g., Frank Betz Assocs., Inc. v. J.O. Clark Construction, L.L.C., No. 3:08-cv-00159, 2010 WL 2253541, at *8 (M.D.Tenn., May 30, 2010); Lexmark Intl, Inc. v. Static Control Components, Inc., 387 F.3d 522, 534 (6th Cir. 2004). Where there is no direct evidence of unauthorized duplication (as is usually the case), a plaintiff is permitted to prove copyright infringement by showing that (1) defendant(s) had access to the allegedly-

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infringed upon work, and (2) a substantial similarity exists between the works at issue. Kohus v. Mariol, 328 F.3d 848, 853-54 (6th Cir. 2003). In the instant case, Plaintiff can establish unequivocally that he owns a valid copyrighted work, evidenced by the Copyright Registration that Plaintiff received from the United States Copyright Office for same. Further, Defendant does not raise the issue in its motion as to whether

Defendant had access to Plaintiffs copyrighted work to allow it to duplicate it without his obligation. 1

B.

Plaintiff is Asserting Rights Over Protectable Subject Matter. It is undisputed that copyright protection is given only to the expression of the

idea not the idea itself. Mazer v. Stein, 347 U.S. 201, 217, (1954). See also 17 U.S.C. 102(b). Accordingly, Defendants argue that Plaintiffs Diaper Jeans are a mere idea, and thus unprotected by copyright. Brief of Defendant, at 10. However, copyright protection can extend from two-dimensional artworks to three-dimensional

manifestations of that artwork.

Thus, Defendants Jeans Diapers product (the

offending matter in question) falls within the scope of Plaintiffs copyrighted Diaper Jean artwork. The case that established this extension of protection, Winfield Collection, Limited v. Gemmy Industries, Corp., 147 Fed.Appx. 547, No. 04-1545, 04-2106, 041586, 2005 WL 2077510 (6th Cir. Aug. 29, 2005), involved artwork that was created to instruct consumers on how to create a three-dimensional object based on plaintiffs
1

To the extent that access to Plaintiffs work is not presumed for purposes of the present motion, Plaintiff contends the allegations of his complaint state a claim that Defendant had access to his copyrighted work within the teaching of Robert R. Jones Assocs., Inc. v. Nino Homes, 858 F2d 274 (6th Cir. 1988), which sets forth that [a]ccess merely means an opportunity to view the protected material. 858 F2d at 277.

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copyrighted two-dimensional drawing. In Winfield, the Sixth Circuit established that, where works are substantially similar, copyright protection may be extended to a threedimensional object created according to the instructions in a two-dimensional copyrighted design. Specifically, the court recognized that three-dimensional objects may be protected by two-dimensional copyrighted artwork. Id at *550. The Winfield court based its finding on the fact that plaintiffs copyright registration included a photograph of a witch assembled according to the design seeking copyright. It is equally clear that, in submitting his artwork to the United States Copyright Office, the protection Plaintiff sought in the case at hand was not just for his visual representation of Diaper Jeans, but for a manufactured version of Diaper Jeans as well. At least one purpose of Plaintiffs Diaper Jeans design was to create a threedimensional manifestation of that design. This is made obvious by the fact that Plaintiff, after having obtained a copyright for his Diaper Jeans, mailed the designs to KimberlyClark, a diaper manufacturer. Indeed, it is laughable to suggest that Plaintiff in the present case sought copyright protection for his Diaper Jeans design simply so that nobody else can copy the design itself, but can still freely use the design to create three-dimensional manifestations of that design. It is certainly a reasonable purpose for a Diaper Jeans design to create a three-dimensional manifestation from that design. This is clearly a facet of what Plaintiff sought to have protected by his Copyright Registration. Further, Winfield Collections creates a distinction between clothing copyrights and copyrights for three-dimensional objects made from protected two-dimensional

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designs that is applicable to the case at hand. distinction by stating that:

Winfield Collections draws this

giving copyright protection to clothing, which has a utilitarian function, would allow for the protection of patent-like features without having to fulfill the rigorous standards for obtaining a design patent. (Citations omitted). The decorative witches at issue in the instant case, however, are purely aesthetic, and thus have no patent-like features to argue against copyright protection.

Id. at *551. Although diapers undisputedly have a utilitarian function, designing that diaper to appear as if it is made from jean material has no function at all beyond the aesthetic. Thus, the question becomes whether or not Plaintiffs copyright protection extends to a purely aesthetic, non-functional aspect of a functional item. Although

Winfield Collections based its assertion, that three-dimensional items may find protection in a copyright of a two-dimensional design, on the fact that plaintiffs witch was a purely aesthetic design, the court suggests that copyright protection does indeed extend to non-functional aspects of an otherwise functional item. Specifically, the Sixth Circuit asserted that if a work is to some degree functional, a court must filter out any elements dictated by efficiency [in order to determine copyrightability]. Id. at *554. Thus, a functional item is not automatically deemed to be unprotectable by copyright rather, only specifically functional aspects are unprotectable. The elements of a diaper dictated by efficiency namely, the actual diaper, and aspects of its design that enable diapers to serve their central purpose (e.g., leak control, etc.) are to be filtered out of the courts analysis of protectablity and substantial similarity. Courts may still, however, allow non-functional elements of a design, such as the artistic representation of a back pocket stitching design as set

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forth and juxtaposed onto a diaper in order to make the diaper look like jeans, as has been done and is claimed by Plaintiff, to be protected by copyright. Plaintiffs aesthetic representation of the diaper therefore falls under this umbrella of non-functional aspects protectable by copyright. Assuming without conceding that Plaintiffs copyright does not extend to a threedimensional manifestation of a denim-colored rendering of a diaper, it is nonetheless alleged in Plaintiffs complaint (and not disputed by Defendant) that Defendants twodimensional product packaging and marketing materials utilizes Plaintiffs copyrighted artwork (or a substantially similar version thereof). See Complaint, Paragraph 5. Thus, Defendant is not only guilty of misappropriating a three-dimensional version of Plaintiffs copyrighted work, but also a carbon copy of the two-dimensional artwork on which Plaintiff was awarded his copyright originally. In addition to the filtering out of functional elements, in order to determine which aspects of a work are copyrightable the court must also filter out elements of the work that are not original, scenes a faire, the indispensable or standard aspects of a work, or those that follow directly from unprotectable ideas. Bridgeport Music, Inc. v. UMG

Recordings, Inc., 585 F.3d 267, 274 (6th Cir. 2009). Original means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. The work at issue need not be novel. Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345-46 (1991). Thus, Defendants claim that the idea of Diaper Jeans already existed before Plaintiff obtained his Copyright Registration is irrelevant to the case at hand.

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Furthermore, that all babies are not running around in Diaper Jeans establishes the creativity involved in their creation. Diaper Jeans are clearly a marketable item, as evidenced by the fact that Defendant has chosen to manufacture and sell them (under the name of Jeans Diapers.). Thus, if they were a common idea lacking in originality, Diaper Jeans would have existed on the market prior to now. Moreover, the fact that Plaintiff sought a Copyright Registration for his artwork underscores the fact that it was an original idea that he wanted to protect. Filtering out those scenes a faire those elements that follow naturally from a works theme as required by Kohus, 328 F.3d at 856 strengthens Plaintiffs claim against Defendant. It cannot be reasonably disputed that the aspect of a diaper that makes it look like a denim jean article is not an element that follows naturally from the general theme of a diaper indeed, this is one of the very reasons that Plaintiff sought a copyright for the design in the first place. Likewise, a diapers design that depicts the diaper as being made from jean material is by no means indispensable or standard to a diaper; nor does such design follow directly from the unprotectable idea of a diaper. In Baker v. Selden, 101 U.S. 99 (1879), plaintiff obtained a copyright for a book that explained a unique form of bookkeeping. Plaintiff asserted copyright infringement when defendant made and used account-books arranged on substantially the same system. The Court held that blank account-books are not the subject of copyright, and the copyright that plaintiff had for his book did not give him the exclusive right to make and use account-books illustrated in the same way as his copyrighted book. Id. at 107. In essence, the plaintiff in Baker could prevent the unauthorized reproduction of the actual book, but, unless he had a patent, the plaintiff could not prevent others from

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using the accounting forms, the useful article embodied in the book. Nino Homes, 858 F.2d at 278. Distinguishing the present case from the one in Baker, however, is the fact that there is nothing useful about the aspect of Plaintiffs design over which copyright protection is being asserted. Plaintiff is not claiming to copyright a diaper; rather, it is the design of the diaper that he lays claim to. Indeed, the United States Supreme Court qualified its limitation of copyright protection in Baker by stating that [o]f course, these observations [limiting copyright protection] are not intended to apply to ornamental designs, or pictorial illustrations addressed to the taste. Of these it may be said, that their form is their essence, and their object, the production of pleasure in their contemplation. This is their final end. Baker, 101 U.S. at 103-04. Likewise, a diapers appearance as Diaper Jeans is the entire point of the design and underlies Plaintiffs rights at issue. The copyrighted artwork does not serve any purpose whatsoever,

functional or otherwise, beyond the aesthetic. Finally, in its Brief In Support of Defendants Motion to Dismiss Plaintiffs Complaint, Defendant asserts that the only commonality between Plaintiffs design and that of Kimberly-Clark is that they both attempt to express the idea of a diaper that is supposed to look like jeans but those expressions manifest themselves in an entirely different way. Brief of Defendant, at 10 (emphasis added). Thus, despite its assertion throughout that Plaintiff is merely trying to protect the idea of Diaper Jeans, here Defendant seems to concede that it is the expression of an idea that is at issue, and [i]t is axiomatic, to begin with, that mere abstract ideas are not protectable, but the expression of an idea is. Kohus, 328 F.3d at 855 (emphasis added) (citing Mazer v. Stein, 347 U.S. at 217).

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As to Defendants assertion that Plaintiffs and Defendants expressions manifest themselves in an entirely different way, where copyrightablity of the work at issue has been established whether or not the two works do differ is a question for a jury to decide (an issue that is discussed in the next section). However, even if the court chooses not to pass this question along to a jury, to support its assertion of complete unlikeness of the works at issue, Defendant relies on elements of the Diaper Jeans such as stitching, pockets, labels, and zipper details to establish the dissimilarity. Brief for Defendant, at 1-2; 7-8. Defendant also states, however, that such elements of the Diaper Jeans are common elements of any idea for a jean, Brief for Defendant, at 1, and are therefore unprotectable elements that must be removed from consideration of the two designs similarities. Brief for Defendant, at 8. It is contradictory for

Defendant to rely on these unprotectable elements which elements must be filtered out of the courts analysis as the only elements that might show dissimilarity between the two works. Moreover, Plaintiff is not trying to protect the individual generic or otherwise common elements necessary to represent jeans (i.e., the zippers, buttons, etc.) that are displayed in his copyrighted artwork as Defendant asserts; rather, he is asserting rights over the creative expression of diapers designed to resemble jeans. Common elements of a diaper (such as elastic, padding, and absorbent material) do not include the appearance of denim jeans. Ultimately, an expression of an idea is

protected by copyright, and it is Plaintiffs expression of the idea of diapers that look like denim jeans that is at issue in the current case. The court in Winfield Collections relevantly asserted that to categorically refuse to extend copyright protection to a three-dimensional manifestation of Winfields

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witch is to allow a competitor theoretically to steal Winfields precise expression of its creative vision, thus chilling the very creative expression that copyright law is meant to foster. Winfield Collections, 2005 WL 2077510 at *552. Denial of copyright protection in the case at hand would have precisely the same chilling effect.

C.

Plaintiffs and Defendants Products are Substantially Similar Once the unprotectable elements have been filtered out, the two works [at issue]

can be compared to determine whether they are substantially similar, a question of fact. Bridgeport Music, 585 F.3d at 275. As set forth above, Plaintiffs copyrighted work includes protectable elements. Thus, as substantial similarity is a question of fact, granting Defendants motion, would improperly remove this question from a jurys purview. [P]roof in copyright cases is frequently fact-intensive and highly circumstantial, involving factual comparison between works to determine whether they are substantially similar for purposes of proving copyright infringement. Frank Betz Assocs., 2010 WL 2253541, at *15. (Similarly, due to the inherent subjectivity involved in that inquiry, summary judgment on the question of substantial similarity is also rarely appropriate. Id.) Although it is true that a court may dismiss a copyright claim in specific

circumstances where [t]here is no overlap between the original components of the works, and any similarities between them are either unprotectible or not substantial, and [r]easonable minds could not differ on this issue, Davis v. American Broadcasting Companies, Inc., No. 1:10-CV-167, 2010 WL 2998476, at *10 (W.D.Mich. 2010) ,

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neither of these circumstances apply to the case at hand. Plaintiffs copyrighted work has protectable elements.

As mentioned above,

With regard to substantial similarity between two works, such similarity is established where the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal [of the two works] as the same. Beaudin v. Ben and Jerrys Homemade, Inc., 896 F.Supp.356, 359 (U.S.D.C. 1995) (quoting Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960)). It is clear that such is the case here; unless an observer is specifically instructed to inspect, as the Defendant would have one do, any differences between the common elements of the diaper product represented by the parties (such as zippers and button placement), the aesthetic appeal of both parties concepts is essentially the same namely, a blue denim-colored diaper containing the appearance of stitching of front and back pockets, a waistline (including a waistline that plunges slightly on the rear side of the diaper), and a middle seam. Further, Plaintiff and

Defendants back pockets contain the same or very similar configurations of stitching.

D.

Defendant is Not Entitled to Costs or Fees Under the standard relied upon by Defendant, a court has discretion in awarding

costs to a party in a copyright action. See Bridgeport Music, Inc. v. WB Music Corp., 520 F.3d 588, 592 (6th Cir. 2008) (citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994)). In Bridgeport, the court awarded fees and costs to the defendant only after plaintiff ignored numerous judicial directives that specifically warned the Bridgeport plaintiff against pursuing a specified theory that had been previously rejected in

10

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companion litigation involving the same plaintiff as being futile. Because the Bridgeport plaintiff brazenly disregarded previous instructions from the trial judge that cautioned it from pursuing a particular theory against defendant and instead pressed a claim that was already determined to be futile, the court found it proper to award costs and fees against to defendant for plaintiffs repeated misconduct. Plaintiff in the present case has yet to receive such instructive guidance on its claims against Defendant. Because his claim has yet to be evaluated, it can hardly be said that he has been cautioned by the court against pursuing his claim. Indeed,

Defendant would have the court sanction the present Plaintiff for Plaintiffs failure to accept without question Defendants response to Plaintiffs pre-litigation demands. Surely the Copyright Act is not intended to prevent a plaintiff from seeking judicial relief where, as is the case here, legitimate questions about Defendants conduct and the similarity of the parties artwork remain. Defendant argues that this claim is patentably unreasonable. For the reasons set forth in this reply, Plaintiff respectfully contends that his claim is eminently reasonable, and that he is well within his rights in maintain suit under the facts of this case. Further, the parties do not have the valuable and controlling guidance of what constitutes a valid claim under the particular facts and circumstances of the present case, unlike the Bridgeport parties. Accordingly, with this claim being supported by law and in fact, Plaintiff requests that the court deny Defendants request for fees and costs with prejudice.

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III.

Conclusion For the reasons stated above, Plaintiff requests that the court deny Defendants

motion in its entirety, as Plaintiff has shown that his claim regards protectable subject matter, because the question of whether Defendants product and artwork are substantially similar to his copyrighted artwork, and because Defendant is not entitled to fees and costs.

DATED: August 16, 2011

Respectfully submitted, AIDENBAUM SCHLOFF AND BLOOM PLLC

By:

/s/David Gentile__________ David Gentile (P62171) Attorney for Plaintiff 6960 Orchard Lake Road, Suite 250 West Bloomfield, MI 48322 (248) 865-6500 (248) 865-6505 fax

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CERTIFICATE OF SERVICE I hereby certify that on August 16, 2011, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to all counsel of record, and I hereby certify that I have mailed by United States Postal Service the paper to the following participant: Chad J. Doelllinger, Esq. Attorney for Defendant Eimer Stahl Klevorn & Solberg LLP 224 South Michigan, Suite 1100 Chicago, Illinois 60604

AIDENBAUM SCHLOFF AND BLOOM PLLC

By:

/s/David Gentile__________ David Gentile (P62171) Attorney for Plaintiff 6960 Orchard Lake Road, Suite 250 West Bloomfield, MI 48322 (248) 865-6500 (248) 865-6505 fax

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