June 12, 2012
Widespread dissemination of a work sufficient to show a reasonable possibility of access can be confined to particular region and/or industry. That is one of the rulings in the Ninth’s Circuit’s recent decision in L. A. Printex v. Aeropostale. This is the first of three posts about the case, each addressing a single aspect of the court’s opinion.
Most readers of this blog will know that in order to prove copyright infringement, a copyright owner must prove that the defendant copied the copyrighted work. In most cases there is no confession, eyewitness or other direct evidence of copying, so plaintiffs typically prove copying by proving that the defendant had access to the plaintiff’s work, and that similarities between the plaintiff’s work and defendant’s suggest copying.
In the Aeropostale case, L. A. Printex claimed that Aeropostale and co-defendant Ms. Bubbles infringed L.A. Printiex’s copyright in a floral fabric design. L.A. Printex asserted that defendants had access to the copyrighted print because it was widely disseminated in the Los Angeles fashion industry. The Ninth Circuit agreed, writing:
L.A. Printex and Ms. Bubbles (Aeropostale’s wholesaler and co-defendant) operate in the same industry in the same Los Angeles area. L.A. Printex, a fabric printing company, sold more than 50,000 yards of fabric bearing C30020 to fabric converters. It is a reasonable inference that many or most of these purchasers were in the Los Angeles area. Apparel vendors like Ms. Bubbles purchase fabric from fabric printing companies and fabric converters. In addition, the dissemination of C30020 occurred over a four-year period immediately preceding Defendants’ alleged infringement. A reasonable jury could find that C30020 was widely disseminated in the Los Angeles-area fabric industry, and hence that there was a “reasonable possibility” that Defendants had an opportunity to view and copy L.A. Printex’s design…We hold that L.A. Printex raised a genuine dispute of material fact on access.