LovePop, Inc. v. PaperPopCards Inc. (17-cv-11017).

Judge Saris denied in part and granted in part PaperPop’s motion to dismiss copyright claims relating to three-dimensional pop-up cards. PaperPop contended that the card designs consisted largely of unprotectable elements under the merger and/or scènes à faire doctrines.  Judge Saris had previously denied the motion with respect to three card designs; she here rejected these arguments with respect to cards depicting a French flower cart and a bouquet of balloons extending from a decorative box to have ample room for interpretation, and that the accused designs were similar enough to merit trial.  She determined that a nativity design was a closer question, as such a design is virtually certain to contain elements such as a manger, a Baby Jesus, Mary, Joseph, the three Wise Men, and livestock in a barn; however, there are many different ways to present these elements, and enough similarities existed in the presentations to survive a 12(b)(6) challenge.  Judge Saris granted the motion with respect to a Menorah design, finding all of the similar elements to be substantially dictated by the indispensable elements of a menorah and the remaining elements so dissimilar as to preclude a finding of copying of protectable elements.  With respect to several cards depicting willow trees or the like, Judge Saris noted that reproduction of natural phenomena such as a tree can enjoy copyright protection, but that proof of copying is difficult, as the alleged copier may well have drawn inspiration from the natural phenomenon itself rather than the copyrighted work.  She determined that these cards presented a close call better resolved by the trier of fact, and denied the motion to dismiss as to these designs.  Finally, LovePop challenged six promotional videos depicting PaperPop cards being slowly opened to reveal the pop-up design.  PaperPop asserted that the cards being opened were its own, and that the videos differed in lighting, camera angle, etc., so as not to be copies of LovePop’s videos.  At oral argument, LovePop shifted its argument to derivation, arguing that the similarity of the cards depicted rendered the PaperPop videos unauthorized derivative works.  Judge Saris found that this reframing raised issues not adequately briefed, and denied the motion to dismiss without prejudice.

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