George S. Chen Corp. v. Cadona International, Inc.

MEMORANDUM *

George S. Chen Corp. (GSC) appeals the summary judgment in favor of Cadona International, Inc., in an action for infringement of its copyrights on dolphin, frog, and moon/star wind chime ornaments, and on a stand-alone frog ornament. We affirm.

As GSC concedes, its dolphin and frog ornaments are “approximately true to life.” It failed to identify any elements of the dolphin or frog that it selected that are not commonplace or dictated by the idea of a swimming dolphin or sitting frog sculpture. See Satava v. Lowry, 323 F.3d 805, 810 (9th Cir.2003) (noting the aspects of a glass-in-glass jellyfish sculpture upon which the creator relied, but concluding they were unprotectable as they were commonplace and typical of jellyfish physiology); see also Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 740 (9th Cir.1971) (noting that the plaintiff never identified the elements of the arrangement of jewels on top of a bee pin that were original). GSC’s concept was to make a “cute” dolphin — with an open mouth and an uplifted, twisted tail which made it appear to be swimming — but these features necessarily follow from the idea of a swimming dolphin. See Aliotti v.…

dissenting.

I respectfully dissent.

The defendant Cadona International, Inc. (“Cadona”) concedes, and the district court found, that Cadona’s frog, dolphin, and moon/star ornaments are identical to those made by the plaintiff George S. Chen Corp. (“GSC”). GSC owns copyright registrations for the works that Cadona has copied. Yet the majority holds that we should affirm summary judgment for Cadona because GSC failed to sufficiently identify any original elements of its works. That is not the law of this circuit or any other.

GSC’s valid copyright registrations entitle its works to a presumption of originality. 17 U.S.C. § 410 (c). Our law requires that to rebut this presumption of originality, there must be “a showing on the part of the defendant that the plaintiffs work is not original.” North Coast Indus, v. Maxwell, Inc., 972 F.2d 1081, 1033 (9th Cir.1992) (emphasis added). 1 Cadona did not offer any evidence of its own to rebut that presumption, relying instead on the bare legal argument that under our decision in Satava v. Lowry, GSC’s works do not merit copyright protection because they are based on items that exist in nature. 323 F.3d 805 (9th Cir.2003). Satava, which was…