This textile design copyright case presents, in addition to a question of validity which goes right to the heart of design copyright in the fabric field, *1093 the issue whether the accused design was merely “inspired” — to use appellee Stafford’s design studio salesman’s word —by, or was flatly pirated from, appellant Soptra’s attractive, geometric design for use in dresses. District Judge Duffy, relying primarily upon a comparison of black and white photographic reproductions of the designs, found no infringement and did not reach the question of validity. We disagree, find infringement as a matter of law, determine the copyright valid, and remand with directions for an injunction and for an assessment of damages.
Dress fabric designs notoriously last one year. Appellants’ design here, No. 5700, was into its third successful season, aided perhaps by changes in the accompanying color combinations, when appellee, upon request by a mutual customer, took a swatch of material containing appellant’s design to its textile design studio, gave the salesman the design, as he put. it, “for inspirational purpose,” and told him “to make a design that would be non-conflicting to that design,” that is, sufficiently dissimilar to avoid this decision. It is not exactly easy in the two-dimensional, black and white print of a judicial opinion to compare two dress designs, but suffice it to say that in a design containing a strip of crescents, scalloping or ribbons between that strip and then rows of semicircles, the only obvious dissimilarity from a few feet away is that the semicircles in two rows of four are reversed in Stafford’s fabric, while they are not in the three rows of Soptra’s. Close up one sees that some of the Stafford crescents are tilted, that the Stafford scalloping is less gracefully treated and that Soptra’s design generally is somewhat more discreet.
Soptra purchased its original design in October, 1970, in the form of a sketch or painting from the Rampelberg Studios in Paris. The design was put “in repeat” to broaden or extend it so as to cover a bolt of cloth. A silk-screen process was used to print the design on the greige goods or naked cloth. At first two colors (in addition to the “white” portion of the cloth that is rendered impervious to dye in the silkscreen process) were used in reproduction. Subsequently three colors were used. The copyright was secured by the Textile Distributors Association for the appellant, using a two-color combination as a sample.
The district court could not have been more correct in stating the underlying test for infringement as being “whether an average lay observer would find a substantial similarity in the designs . ” Concord Fabrics, Inc. v. Marcus Brothers Textile Corp.,
The court below concluded that “the graphic patterns themselves are, in fact, different.” He does not specify in what respects. Our conclusion, with the same materials, exhibits, color combinations
and
black and white reproductions before us, is to the contrary: in our view the designs are substantially similar, the differences ever so slight, the dissimilarities insubstantial. While we may in a real sense be,factfinding, since we have before us the same record, and since no part of the decision below turned on credibility, “we are in as good a position to determine the question as is the district court.” Concord Fabrics, Inc. v. Marcus Brothers Textile Corp.,
Judge Duffy purported to follow Clarion Textile Corp. v. Slifka,
The designs are enough alike so that a woman wearing plaintiff’s [design] in brown and green would exclaim “There goes my dress” if she saw a woman wearing [defendant’s design] in the same color scheme. My belief is, however, that there would be no such exclamation if [defendant’s] were in light green and cerise.
Id. With all due respect to the Clarion Textile court its homely illustration misses the point: if the defendant’s dress there had been light green and cerise, would the woman wearing the design in brown and green say, “There goes the design of my dress”?
The court below went on to attempt to look beyond any color similarities (though appellee’s matched even appellant’s color combination in some of the comparison materials submitted to the court) by reviewing black and white photographic reproductions of the designs. By looking only to the black and white reproductions, the district judge, we fear, missed the point here also. Certainly the color schemes were not to be entirely overlooked.
See
Scarves by Vera, Inc. v. United Merchants and Manufacturers, Inc.,
The appearance in one of defendant’s fabrics of colors identical to plaintiff’s is additional evidence of actual copying, as well as another factor leading to the conclusion that the aesthetic appeal of the fabrics is the same ....
But perhaps the error was really the result of a young district judge’s failure to appreciate with the wisdom and experienced eye that only middle age can bring to the subject of feminine wear the substantial similarity we appellate judges discern in appellant’s and appel-lee’s designs.
Ad quod non est responsum.
On the question of validity Stafford argues that the Soptra copyright is invalid because it represents an exact copy of the uncopyrighted Rampelberg design and thus lacks the requisite originality. Stafford rightly refers us to,
e. g.,
Alfred Bell & Co. v. Catalda Fine Arts,
*1095 Accordingly we reverse and remand with directions that an injunction issue and that the district court proceed to an assessment of damages.