Everybody loves Pandas. RIOT SOCIETY v. FASHION NOVA

When an artist creates a new work, the artist is granted a copyright to that work. A copyright is created when the artist finishes their creation. In the United States an artist can register their copyright with the Library of Congress to enhance the rights associated with their copyright but registration is not necessary for the creation of the copyright. A copyright grants the owner of the copyright the exclusive right to reproduce, distribute, perform, display, transmit, and create derivative works based on the original work. If someone other than the copyright owner exercises one of these exclusive rights that can be considered copyright infringement. A copyright owner can request that a court issue an injunction to stop copyright infringement from occurring and to get monetary damages for copyright infringement which has happened.

An important concept in copyright law is that two different artists can create a works which are identical without infringing on each other’s copyright. This concept is known an independent creation. Independent creation is where two separate people both create the same work, or works that are substantially similar, on their own and independent of each other. In United States copyright law independent creation can be a valid defense to a claim of copyright infringement. Independent creation is a defense to copyright infringement because the exclusive rights associated with a copyright are limited to the artist’s creation. Copyright protects an artist’s expression of an idea, not the underlying idea. This means that an artist that paints a picture of a tree cannot claim copyright infringement if other artists paint the same tree.

When a copyright plaintiff makes a prima facie case of copying, by showing that the alleged infringer had access to the work and the similarities between the two works, the defendant can introduce evidence of independent creation as a defense. The burden of proof then shifts back to the copyright plaintiff to prove actual copying with significant probative evidence. Testimony from the creator of the allegedly infringing work is typically needed to demonstrate that the work was created without reference to the plaintiff’s work.

The concept of independent creation defense in copyright law is unique. In patent law, independent creation is not a defense to patent infringement because a patent is granted to the first inventor to patent an idea. In trademark law, a confusingly similar trademark would be considered trademark infringement whether or not the infringing trademark was independently created.

A case which will likely have an independent creation defense is L.A. T-SHIRT & PRINT, INC., RIOT SOCIETY v. FASHION NOVA, INC., 2:18-cv-09984 (C.D.CA 2018). This case revolves around a drawing of a panda holding a rose in its mouth. The plaintiff in this case is an apparel manufacturer that sells various types of clothing decorated with an image of a panda holding a rose in its mouth under the brand name riot society. In October 2018 the plaintiff learned that the defendant was also selling clothing decorated with an image of a panda holding a rose in its mouth. The plaintiff filed a lawsuit alleging that the defendants actions constituted copyright infringement.

The two versions of the panda with rose images are reproduced above. The defendants image is on the left and the plaintiffs image is on the right. While the two images are of the same subject, a panda holding a rose in its mouth, the images are not identical. The shape of the eyes, ears, nose and rose are different. This creates a problem for the plaintiff in this case because the defendant can argue that their image was independently created.

The case was just filed, the defendant has not answered the complaint so we will have to wait and see how the case plays out.

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