The Court Used The Discerning Observer Test For Substantial Similarity

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The court used the discerning observer test for substantial similarity, analyzing protectable elements and how those elements were arranged and placed and the total concept and feel of the quilts. Id. at 273. In particular, the court considered the arrangement and shapes of letters, colors that were chosen to represent letters and other parts of the quilt, quilting patterns, icons chosen and placement of protectable elements. Id.; See Hogan v. DC Comics, 48 F. Supp. 2d 298 (S.D.N.Y. 1999) (reasoning that the comic book and novel were not substantially similar because the similarities were of unprotectable ideas and themes, in addition to the differences in the total look and feel of the works, the interactions of the characters’, and the plots). However, in Knitwaves, when the plaintiff, a clothing manufacturer claimed that the defendant had copied two sweaters that were created and copyrighted by the plaintiff, the court ruled that the two sweater designs at issue were substantially similar because the alleged infringed work copied the original contribution of the copyrighted work. 71 F.3d 996. In addition, the court reasoned that the sole use of Knitwaves ' sweaters as reference materials and the selection, coordination and arrangement of patterns was enough to constitute copyright infringement. Id. at 1004. Copyright protection does not extend to scenes a faire, which are stock themes commonly linked to a particular genre or characteristics that appear in a work of

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