Summary
finding that images are "so dissimilar as to protectable expression that the substantial similarity question need not go to a jury."
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No. 11–1479.
2012-12-27
Gary D. BLEHM, Plaintiff–Appellant, v. Albert A. JACOBS; John Jacobs; The Life is Good Company, f/k/a Life is Good, Inc.; Life is Good Wholesale, Inc.; and Life is Good Retail, Inc., Defendants–Appellees.
Conor F. Farley (Stephen G. Masciocchi, with him on the briefs), Holland & Hart LLP, Denver, CO, for Appellant. Natalie Hanlon–Leh (Jared B. Briant, Joel D. Sayres, and Katie R. Schwalb, with her on the brief), Faegre Baker Daniels LLP, Denver, CO, for Appellee.
Conor F. Farley (Stephen G. Masciocchi, with him on the briefs), Holland & Hart LLP, Denver, CO, for Appellant. Natalie Hanlon–Leh (Jared B. Briant, Joel D. Sayres, and Katie R. Schwalb, with her on the brief), Faegre Baker Daniels LLP, Denver, CO, for Appellee.
Before BRISCOE, Chief Judge, GORSUCH, and MATHESON, Circuit Judges.
MATHESON, Circuit Judge.
Appellant Gary Blehm brought this copyright infringement action against brothers Albert and John Jacobs and the Life is Good Company (collectively “Life is Good”). Mr. Blehm is the creator of copyrighted posters featuring cartoon characters called “Penmen.” He contends that numerous Life is Good depictions of a cartoon character called “Jake” infringe on his copyrighted works. The district court granted Life is Good's motion for summary judgment, holding that no infringement occurred because the copyrighted and accused works are not substantially similar.
The company's official name is “Life is good Company,” with a lowercase “g.” We capitalize “Good” throughout this opinion for ease of reading.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual Background
In reviewing the district court's grant of summary judgment, we recite the evidence in the light most favorable to Mr. Blehm, the nonmoving party. See Mountain Highlands, LLC v. Hendricks, 616 F.3d 1167, 1169 (10th Cir.2010).
1. Development and Distribution of Mr. Blehm's Copyrighted Works
Mr. Blehm is a commercial artist who lives in Colorado Springs, Colorado. In the late 1980s, he developed characters called “Penmen.” According to Mr. Blehm, each Penman is “a deceptively-simple looking figure” that “engage[s] in a variety of activities pulled directly from [his] colorful life experiences.” Aplt. Br. at 2. The Penmen have “round heads, disproportionately large half-moon smiles, four fingers, large feet, disproportionately long legs, and a message of unbridled optimism.” Id. at 3. Below is an example of a Penman.
IMAGE
The Penmen are a product of Mr. Blehm's commercial art training. Through his training, Mr. Blehm learned how to “add a slight bend to a figure's limb to show weight bearing into it” and how, as he puts it, to apply negative space. Aplt. Appx., Vol. 2 at 539. Eventually, Mr. Blehm developed rules and guidelines for drawing each Penman. These rules and guidelines include a specific shape for each Penman's head, specific length and height requirements for each character, rules on fluidity and perspective, and the “Penmen parallel curve,” which Mr. Blehm employs to “create eye-pleasing shapes within the negative space.” Id. at 540.
Between 1989 and 1993, Mr. Blehm developed six posters featuring Penmen and registered them with the U.S. Copyright Office (the “copyrighted works”). Each poster contains hundreds of black-and-white Penmen in a variety of poses. The Penmen are arranged on the posters in multiple rows with consistent spacing. Many of the characters interact with one another, and some have only slight differences. The posters, some of which have golf or galactic themes, challenge purchasers to find identical Penmen within each poster.
Mr. Blehm registered six works with the U.S. Copyright Office. The six works are:
• Poster C001, “Find the Two Identical Penmen,” Registration No. VA 368 815 (Aug. 7, 1989), for “Cartoon Character Designs”;
• Poster A001, “Find the Fore Identical Penmen,” Registration No. VA 437 346 (Nov. 26, 1990), for “Modern Art Game”;
• Poster C009, “Find the Fore Identical Penmen,” Registration No. VA 607 539 (Aug. 16, 1993), for “Visual Art Puzzle”;
• Poster D001, “Find the Two Identical Penmen,” Registration No. VA 468 434 (Aug. 19, 1991), for “Art Game”;
• Poster D002, “Find the Two Identical Penmen,” Registration No. VA 482 967 (Dec. 19, 1991), for “Art Game”; and
• Poster C005, “Find the Two Identical Space Penmen,” Registration No. VA 600 649 (Sept. 20, 1993), for “Visual Art Puzzle.”
In 1990, Mr. Blehm began selling his posters to distributors. From 1990 to 2004, Prints Plus sold his posters nationally. Prints Plus stores in the Cambridgeside Galleria and the Emerald Square Mall, both in the Boston area, displayed his posters prominently and found them to be best-sellers during the holiday season. In the early 90s, Mr. Blehm began selling his posters to IMAGE
The Jacobses incorporated Life is Good in 1997 with the “overarching themes of optimism, simplicity, humor, and humility.” Aplee. Br. at 5. In 2003, they hired Joseph Burke and William Gillis to help design shirts. Depictions of Jake have increased in complexity over the years—from Jake engaging in simple poses to Jake engaging in actions and wearing clothes.
The Jacobses, Mr. Burke, and Mr. Gillis contend they had never heard of the Penmen before Mr. Blehm's lawsuit.
B. Procedural History
In December 2009, Mr. Blehm filed a complaint against the Jacobses and Life is Good alleging four causes of action. The complaint was later amended to allege one count of copyright infringement and one count of contributory infringement, claiming that various Life is Good Jake IMAGE
The first example in Mr. Blehm's exhibit juxtaposes a Penman and Jake IMAGE
In another example, a Penman and Jake attempt to catch Frisbees between their legs. The two figures' poses are similar—suspended in the air with legs outstretched and a hand descending to catch the disc—but we do not consider the pose in our analysis. Such a pose is common to this activity and is not protected expression. Again, the figures have large, half-moon smiles. And unlike the “peace sign” Jake, this Jake IMAGE