Klauber Brothers, Inc. v. Anthropologie, Inc.

Background

Klauber Brothers, Inc. alleged that the defendants created, manufactured, and sold the Fleur and Nouvelle Fleur dresses using lace straps that copied Klauber Brothers’ Design 3886. Klauber Brothers alleged copyright infringement under the Copyright Act.

Klauber Brothers alleged that it owned a copyright registration for Design 3886, but not for Design 3885. In 2013, it sent Urban Outfitters samples of at least 87 designs, including two samples of Design 3885 but none of Design 3886. The complaint alleged that BHLDN sold six Nouvelle Fleur dress styles online and that Anthropologie sold six Fleur dress styles online, each allegedly bearing lace similar to Design 3886.

Judicial Notice

The defendants asked the court to take judicial notice of photographs of lace samples from museum exhibits, arguing that the photographs showed common or historical lace designs and design elements. The court declined to take judicial notice because it could not determine from the photographs that the designs were common or historical, and their contents were subject to reasonable dispute. The court denied the defendants’ motion for judicial notice.

Legal Standard

The defendants moved to dismiss under Rule 12(b)(6), which allows dismissal when a complaint does not allege enough facts to support a legally plausible claim. At this stage, the court generally accepts factual allegations in the complaint as true and draws reasonable inferences for the plaintiff, but it does not accept unsupported legal conclusions.

To plead copyright infringement, a plaintiff must allege ownership of a valid copyright and infringement. Infringement requires allegations of actual copying and substantial similarity between the protected parts of the copyrighted work and the accused work. Substantial similarity asks whether an ordinary observer would view the accused work as having the same overall aesthetic appeal. The court held that it could compare the designs at the motion-to-dismiss stage because the complaint and the designs provided what was needed for that visual comparison.

Fleur Dresses

The court held that Klauber Brothers had not adequately alleged substantial similarity between Design 3886 and the Fleur dresses. Although both designs included three flowers in a row and arched elements, the court identified significant differences. The Design 3886 flowers had rounded four-petal forms, while the Fleur flowers had jagged petals and appeared to have different numbers of petals. Design 3886 also included stems, leaves, and a distinctive H-shaped pattern, while the corresponding area of the Fleur dresses had only a plain background pattern.

The court concluded that the differences were too numerous and the similarities too limited for an ordinary observer to regard the designs as having the same aesthetic appeal. It therefore granted the motion to dismiss the copyright-infringement claim concerning the Fleur dresses.

Nouvelle Fleur Dresses

The court reached the opposite conclusion for the Nouvelle Fleur dresses. It found that the lace trim was practically identical to the allegedly copied portion of Design 3886. The court identified matching arrangements of flowers and arched elements, alternating edge threads, three-petal arrangements, H-shaped stitching, and other matching arrangements of petals and circular elements. The court could not identify a single obvious difference between the relevant portions of Design 3886 and a Nouvelle Fleur dress shown in the complaint.

The defendants argued that some arched elements and round fillings were common features of a Brussels or Belgian bobbin-lace style and therefore could not be protected. The court assumed without deciding that a more careful comparison excluding unprotectable elements was required, but held that the designs were still substantially similar because they used the same elements in identical arrangements and proportions. The court also rejected the argument that differences in color defeated substantial similarity, reasoning that the designs were otherwise alike and both used a single color of lace.

The court further held that the complaint plausibly alleged actual copying through “striking similarity”—similarity so strong that it rules out a reasonable possibility of independent creation. The court said that any minor differences were more likely the result of imperfect copying than intentional changes. Because striking similarity was adequately alleged, the court did not need to rely on access allegations. It nevertheless stated that the access allegations were insufficient because the 2013 samples sent to Urban Outfitters were of Design 3885, not Design 3886, and the remaining allegations were generic and conclusory.

The court therefore denied the motion to dismiss the copyright-infringement claim concerning the Nouvelle Fleur dresses.

Vicarious and Contributory Infringement

The complaint also asserted vicarious and contributory copyright infringement. Contributory infringement involves knowingly encouraging or materially assisting another party’s infringement. Vicarious infringement involves the ability to supervise the infringement and a direct financial interest in it.

The court held that Klauber Brothers had not adequately pleaded either theory. The complaint did not identify which defendants were primary infringers and which were allegedly secondary infringers, and its allegations about the defendants’ roles were vague. The allegations that the defendants knowingly participated in, directed, supervised, or profited from the alleged infringement were merely conclusory. The court granted the motion to dismiss the vicarious- and contributory-infringement claim as to all defendants.

Leave to Amend and Disposition

Although Klauber Brothers had already amended its complaint once, the court granted leave to replead the dismissed claims. Any amended complaint had to be filed within fourteen days after entry of the opinion.

The court granted the defendants’ motion to dismiss the copyright claim concerning the Fleur dresses, denied the motion concerning the Nouvelle Fleur dresses, and granted the motion concerning vicarious or contributory copyright infringement. The clerk was directed to terminate the pending motions.