10-0256-cv
Cameron Industries, Inc. v. Caravan, Ltd.


                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 16th day of December, two thousand and ten.

Present:    JOSEPH M. McLAUGHLIN,
            ROSEMARY S. POOLER,
            RICHARD C. WESLEY,
                  Circuit Judges.
_____________________________________________________

CAMERON INDUSTRIES, INC.,

                             Plaintiff-Counter-Defendant-Appellant,

                   -v.-                                                        10-0256-cv

CARAVAN, LTD.,

                             Defendant-Counter-Claimant-Appellee.


For Appellant:               Jed R. Schlacter, Schlacter & Associates, New York, NY.

For Appellee:                Jethro M. Eisenstein, Profeta & Eisenstein, New York, NY.


       Appeal from the United States District Court for the Southern District of New York
(Marrero, J.).


ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of said district court be and hereby is AFFIRMED.
        Cameron Industries, Inc. (“Cameron”) appeals from a December 28, 2009 judgment and
order by the district court, dismissing Cameron’s complaint on the grounds that Cameron had not
established copyright infringement by Caravan, Ltd. (“Caravan”). Cameron principally alleged
that Caravan accessed Cameron’s garment design from a third party, copied it, and then sold
fabric with a substantially similar stem-and-leaf design to the third party. Caravan denied any
access to, or copying of, Cameron’s design. We assume the parties’ familiarity with the
underlying facts, procedural history, and issues presented on appeal.

        “To establish infringement, the copyright owner must demonstrate that (1) the defendant
has actually copied the plaintiff’s work; and (2) the copying is illegal because a substantial
similarity exists between the defendant’s work and the protectible elements of plaintiff’s.”
Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 110 (2d Cir. 2001) (internal quotation marks
omitted). Neither party disputes that a substantial similarity exists between Cameron and
Caravan’s designs.

       Actual copying need not be proven with direct evidence. It may be “proven
circumstantially by proof of access and substantial similarity.” Gaste v. Kaiserman, 863 F.2d
1061, 1066 (2d Cir. 1988). However, unless the works are “so strikingly similar as to preclude
the possibility of independent creation,” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 56 (2d
Cir. 2003), “[a]ccess must be more than a bare possibility and may not be inferred through
speculation or conjecture,” Gaste, 863 F.2d at 1066. Indeed, “[u]nder the Copyright Act, one
may market a product identical to a copyrighted work so long as the second comer designed his
product independently.” Yurman, 262 F.3d at 110 (citation omitted).

        Cameron argues that the district court clearly erred by finding that (1) the designs at issue
are not “so strikingly similar as to preclude the possibility of independent creation”; and (2)
Cameron had not proven that Caravan had access to Cameron’s design during the relevant time
period. We review the district court’s findings of fact for clear error. Fed. R. Civ. P. 52(a)(6).
Where “the district court’s account of the evidence is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it . . . .” Anderson v. City of Bessemer City, N.C.,
470 U.S. 564, 573-74 (1985).

        First, the district court heard testimony that stem-and-leaf designs have “[been] around
for hundreds of years” and that Cameron’s design “is similar to many . . . . It’s not an unusual
print.” From such testimony, viewed in light of the record in its entirety, it was not clearly
erroneous for the district court to find that “another entity could have created Caravan’s stem-
and-leaf design without access to [Cameron’s design].” The district court plausibly could find
the designs not to be “so strikingly similar as to preclude the possibility of independent creation.”
Jorgensen, 351 F.3d at 56.

         Second, after an exhaustive review of the record, we agree with the district court that
Cameron “fail[ed] to provide non-speculative, non-conjectural evidence” that Caravan had access
to Cameron’s design before Caravan sold its printed fabric to a third party. The fact that a third
party “had the opportunity” to show or provide Caravan with Cameron’s design, is insufficient by
itself to prove that access in fact occurred. The district court did not clearly err in finding that
Cameron had not proven access by Caravan.

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        We have considered all of Cameron’s arguments and find them to be without merit. For
the foregoing reasons, the judgment of the district court is AFFIRMED.


                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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