Plaintiff, Von Erickson Laboratories LLC, has conjured up a copyright infringement lawsuit that is sure to terrify numerous defendants for allegedly infringing its Halloween themed jewelry. Plaintiff is the owner of several U.S. Copyright Registrations for several pieces of jewelry, including a “stitches necklace,” a “blood drip necklace,” and their derivative works. Plaintiff makes the jewelry by hand by creating a mold from the structure and pouring molten vinyl into the mold, which vinyl can be dyed to any desired color. Plaintiff asserts that none of the defendants had any jewelry pieces remotely resembling Plaintiff’s products prior to Plaintiff’s creation, publication, and distribution of its products.
Defendants M&J Trimming Company and Papillon Accessories allegedly had access to Plaintiff’s designs because they previously ordered the stitches necklace from Plaintiff. Plaintiff contends that defendants’ stitches necklace are identical except for the functional closures. Functional features are not relevant in a copyright infringement analysis because they generally cannot be protected by copyright law.
Further, although not identical, Plaintiff asserts that defendants’ blood drip necklace is substantially similar to Plaintiff’s blood drip necklaces.
The complaint accuses defendant Hot Topic of also contacting Plaintiff to obtain samples of its jewelry, but instead placing orders for the infringing goods with Papillon Accessories. Yet another defendant, Morbid Enterprises, LLC, is accused of actually meeting with Plaintiff’s principal at an industry event and attempting to negotiate an exclusive license, but instead choosing to create its own infringing products. The complaint contends that defendant Spencer’s Gifts purchased and sold M&J’s infringing versions and Spirit Halloween Superstores purchased and sold Morbid’s infringing versions. Plaintiff seeks preliminary and permanent injunctions preventing defendants’ sales of infringing products and unspecified damages, in addition to its costs and attorneys’ fees.
Copying may be established by showing that the works in question are substantially similar in their protected elements and that the infringing party had access to the copyright protected work. Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1174 (9th Cir. 2003). Where the two works are identical, as in the stitches jewelry, access is presumed. But for the blood jewelry, where defendants appear to have modified the design, Plaintiff can rely on the “inverse ratio” rule, which lessens the level of proof required to show copying and similarity when the accused defendant had a “high degree of access” to the protected work. Three Boys Music Corp. v. Boltan, 212 F.3d 477, 485 (9th Cir. 2000).
This appears to be the second Halloween themed copyright infringement lawsuit in a month for Spencer Gifts and Spirit Halloween, having been sued earlier for allegedly infringing a skull-shaped cup design.
The case is Von Erickson Laboratories LLC v. Papillon Accessories LLC, et al., CV13-6434 JHR (D.N.J. 2013). Plaintiff is represented by Flann Lippincott.
Read a jewelry patent attorney‘s more detailed article on how to protect jewelry through both design patents and utility patents when copyright protection is unavailable.