Judge Land denied the summary judgment motion of Digital Concealment Systems, LLC (“Digital”), filed that its “A-TACS FG Camo” pattern does not infringe copyrights belonging to HyperStealth Biotechnology Corp. (“HyperStealth”).[1] In reaching the ruling, the Court did not consider the opinions of HyperStealth’s expert. Therefore, Digital’s motion to exclude that evidence was moot.
The nine HyperStealth copyrighted patterns in issue were designed by Guy Cramer (“Cramer”), a founder of the company. Sample of HyperStealth patterns in different colors (obtained on the Internet) are set forth below:
As to each alleged infringement, the Court set forth the descriptions advanced by Cramer as to the similarities between the HyperStealth pattern and Digital’s A-TACS FG Camo pattern. In each instance the Cramer description was followed by a description offered by Digital of the differences between its pattern and the copyrighted pattern of HyperStealth.
Judge Land noted “Absent direct proof of copying, HyperStealth may prove copying by demonstrating that (1) Digital had access to HyperStealth’s patterns and (2) Digital’s pattern is substantially similar to HyperStealth’s patterns,” citing Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1223 (11th Cir. 2008). The Court went on to point out that the “substantial similarity issues often involves subjective determinations” and, therefore, summary judgment is precluded “unless (1) ‘the similarity between two works concerns only non-copyrightable elements’ or (2) ‘no reasonable jury, properly instructed, could find that the two works are substantially similar.’”[2] Judge Land did note that “copyright protection does not extend to ideas but only to particular expressions of ideas.” Oravec, 527 F.3d at 1224 (citing 17 U.S.C. § 102(b)).
The nine HyperStealth copyrighted patterns in issue were designed by Guy Cramer (“Cramer”), a founder of the company. Sample of HyperStealth patterns in different colors (obtained on the Internet) are set forth below:
An example of the A-TACS FG Camo pattern (obtained from the Internet) is pictured below:
Judge Land noted “Absent direct proof of copying, HyperStealth may prove copying by demonstrating that (1) Digital had access to HyperStealth’s patterns and (2) Digital’s pattern is substantially similar to HyperStealth’s patterns,” citing Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1223 (11th Cir. 2008). The Court went on to point out that the “substantial similarity issues often involves subjective determinations” and, therefore, summary judgment is precluded “unless (1) ‘the similarity between two works concerns only non-copyrightable elements’ or (2) ‘no reasonable jury, properly instructed, could find that the two works are substantially similar.’”[2] Judge Land did note that “copyright protection does not extend to ideas but only to particular expressions of ideas.” Oravec, 527 F.3d at 1224 (citing 17 U.S.C. § 102(b)).
Digital raised for the first time in its reply brief the issue of independent creation. However, the Court waived off this issue based on the fact Digital’s IP address had been a top 30 visitor to HyperStealth’s website in the three months before Digital’s A-TACS FG Camo pattern was created. During this period 61 megabytes of information was downloaded to Digital’s IP address over the course of 124 visits.
While the Court reported its thorough review of the Digital A-TACS FG Camo pattern side by side with each HyperStealth...