Addressing facts and issues that the court characterized as "unusual", the U.S. Court of Appeals for the First Circuit held that a copy of an independently created third-party design is not an infringement of a copyright on a similar design and that where a design is "simple", even a "striking similarity" between two designs is not particularly relevant to the infringement inquiry. Mag Jewelry Co. v. Cherokee Inc., Target Corp., et. al., Case No. 06-1556 (1st Cir , Aug. 8, 2007) (Lipez, J.).
The plaintiff, Mag Jewelry Company, owned a copyright on the design of a necklace comprised of four crystal stones in the shape of angel. After becoming aware that a necklace of the same description was being sold at Target stores, Mag sued Target and its suppliers for copyright infringement. Target denied copying Mag’s angel, claiming that its jewelry was based on an identical design independently created by a third party. In fact, several years earlier Mag had become aware of that third party’s creation and had agreed not to pursue claims against one another for copyright infringement. At trial, at the close of Mag’s case, the district court granted Target’s motion for judgment as a matter of law, holding that since there was evidence that the underlying third-party design was independently created and no evidence that the third party had access to Mag’s design, neither the underlying third-party design nor, by extension, a copy of that design could satisfy the "copying" element of copyright infringement. Mag appealed.
On appeal, the First Circuit began with the "axiomatic" rule that "separate copyrights exist in independently created designs, even if the works are identical." With that principle in mind, the court held that because Mag could not prove any more than a "bare possibility" of the third party’s access to its design prior to the creation of its own angel, it had failed to meet its burden of proof on the "copying" component of an infringement claim. Consequently, it had failed to prove that Target had copied anything but the third-party’s independently created design. Thus, only the third-party’s copyright—not Mag’s—was implicated in the Target necklace, regardless of its similarity to Mag’s design.
The court quickly disposed of Mag’s contention that the "striking similarity" of the two angel designs was itself enough to prove copying as a matter of law. While acknowledging that some courts have held as much under other facts, the First Circuit agreed with the district court that "the striking similarity between the designs ‘is a little less compelling in this case’" because the design consisted essentially of "geometric shapes" and "there are only so many ways one can depict an angel." The First Circuit elaborated: "In a case such as this, where the simplicity of the design makes independent creation highly plausible, similarity alone could not establish access and, in turn, copying."
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