The designs consisting of stripes, polka dots, and flowers are familiar symbols or designs commonly used on products of nearly every kind, and there are only so many variations of these designs. See, e.g., Mattel, Inc. v. MGA Entm't, Inc., 616 F.2d 904, 914 (9th Cir. 2010) (explaining that “[i]f there's only a narrow range of expression (for example, there are only so many ways to paint a red bouncy ball on blank canvas), then copyright protection is ‘thin' and a work must be ‘virtually identical' to infringe.”); see also Hennon v. Kirklands, Inc., 870 F. Supp. 118, 121 (W.D. Va. 1994) (recognizing that “similarities between the [figurine] carolers are to a great extent dictated by the subject matter that the works portray” and “the fact that the same subject matter may be present in two [works] does not prove copying or infringement” (citation omitted)), aff'd, 64 F.3d 657 (4th Cir. 1995).

There is only a “narrower scope of protection available” when original work has only “thin” protection. Intervest Const., Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914, 921 (11th Cir. 2008); see also Building Graphics, Inc. v. Lennar Corp., 866 F. Supp. 2d 530, 544 (W.D.N.C. 2011) (conducting comparison of architectural works at issue, listing differences between them, and ultimately dismissing plaintiff's copyright claims at summary judgment stage).

Courts routinely determine noninfringement of a copyright as a matter of law at the summary judgment stage based on their own review of the works at issue. See, e.g., Eaton v. National Broadcasting Co., 972 F. Supp. 1019, 1023, 1027 (E.D. Va. 1997), aff'd, 145 F.3d 1324 (4th Cir. 1998) (noting that summary judgment motions are “routinely” granted in copyright cases).

Stripes, Florals, and Polka Dots

In a dispute about designs using stripes, florals, and polka dots on notebook covers, the Western District of North Carolina granted summary judgment of no copyright infringement. McFee v. Carolina Pad, LLC, No. 21-cv-633 (W.D.N.C. Nov. 16, 2023). The particular arrangement of the stripes, colors, and patterns, taken as a whole, may perhaps be subject to protection, and only then, as a “thin” copyright in which more than substantial similarity to an allegedly infringing design must be shown.

            The Court finds that no reasonable trier of fact would find substantial similarity between McFee's designs and Defendant's designs under the heightened standard that must be utilized for thin works. Any purported similarities in the designs herein are merely dictated by the fact that both have the same general subject matter: polka dots, stripes, and flowers. Any ordinary observer could easily point out the differences between the designs. “[A] court can find designs to be visually similar with the same general layout and nonetheless find the dissimilarities significant enough to preclude a finding of infringement.” Building Graphics, 866 F. Supp. 2d at 544.

Thus, the Court held that the plaintiff's copyright infringement claims fail for lack of extrinsic substantial similarity.

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