365 F.3d 133 (2nd Cir. 2004), 02-9042, Mattel, Inc. v. Goldberger Doll Mfg. Co.

Docket Nº:02-9042.
Citation:365 F.3d 133
Party Name:MATTEL, INC., Plaintiff-Counter-Defendant-Appellant, v. GOLDBERGER DOLL MANUFACTURING CO. and Radio City Productions, LLC, Defendants, and Radio City Entertainment, A Division of Madison Square Garden Entertainment, L.P., Defendant-Appellee.
Case Date:April 16, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 133

365 F.3d 133 (2nd Cir. 2004)

MATTEL, INC., Plaintiff-Counter-Defendant-Appellant,

v.

GOLDBERGER DOLL MANUFACTURING CO. and Radio City Productions, LLC, Defendants,

and

Radio City Entertainment, A Division of Madison Square Garden Entertainment, L.P., Defendant-Appellee.

No. 02-9042.

United States Court of Appeals, Second Circuit

April 16, 2004

Argued: June 19, 2003.

William Dunnegan, Perkins & Dunnegan, New York, NY, for Appellant.

Michael Aschen, Abelman, Frayne, & Schwab (Lawrence E. Abelman and Alan J. Hartnick, on the brief), New York, NY, for Appellee.

Before: JOHN M. WALKER, JR., Chief Judge, LEVAL and KATZMANN, Circuit Judges.

LEVAL, Circuit Judge.

Plaintiff Mattel, Inc., appeals from a grant of summary judgment by the United States District Court for the Southern District of New York (Rakoff, J.) in favor of the defendant Radio City Entertainment ("Radio City"). Mattel is the creator of, and owns copyrights in, the world famous "Barbie doll," whose current sales exceed $1 billion per year worldwide. Defendant Radio City operates the Radio City Music Hall theater in New York City, which features the widely renowned Rockettes chorus line. To celebrate the millennium, Radio City (together with its co-defendants) 1 created a doll, which it named the "Rockettes

Page 134

2000" doll. Mattel brought this suit alleging that in designing the Rockette doll, Radio City infringed its copyrights by copying facial features from two different Barbie dolls-"Neptune's Daughter Barbie," registered in 1992, and "CEO Barbie," registered in 1999. It is not reasonably subject to dispute that the Rockette doll is, in several respects including central features of the face, quite similar to the Barbie dolls.

The district court granted the defendant's motion for summary judgment. The court assumed for the purposes of the summary judgment motion that the defendant had copied the Rockette doll's eyes, nose, and mouth from Barbie. It concluded, however, "When it comes to something as common as a youthful, female doll, the unprotectible elements are legion, including, e.g., full faces; pert, upturned noses; bow lips; large, widely spaced eyes; and slim figures" (internal quotation marks omitted). Believing that copyright protection did not extend to Barbie's eyes, nose, and mouth, the court excluded similarity as to those features from the determination whether there was substantial similarity between plaintiff's and defendant's dolls. It concluded in comparing the other parts of the respective heads that there was no substantial similarity and therefore entered summary judgment for the defendant. Mattel, Inc. v. Radio City Entm't, 2002 WL 1300265, at *1 (S.D.N.Y. June 12, 2002) 2002 U.S. Dist. LEXIS 10517, at *3-*4. Mattel brought this appeal.

Discussion

The court's conclusion that the eyes, nose, and mouth of the registered Barbie faces were not protected by copyright was erroneous.

In explanation of this conclusion, the court relied on our 1966 opinion in Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021 (1966). In that case, the district court had denied a preliminary injunction to one doll manufacturer who accused another of copying. On appeal, we found that the district court had not abused its discretion in finding that the plaintiff had failed to show a likelihood of success on the merits, and therefore affirmed. Comparing the dolls at issue, we observed that "similarities exist as to standard doll features such as the full faces; pert, upturned noses; bow lips; large, widely spaced eyes; and slim figures." I...

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