Academic journal article The University of Memphis Law Review

Copyright-Kohus V. Mariol: The Sixth Circuit Adopts Two-Step Test for Substantial Similarity in Copyright Infringement

Academic journal article The University of Memphis Law Review

Copyright-Kohus V. Mariol: The Sixth Circuit Adopts Two-Step Test for Substantial Similarity in Copyright Infringement

Article excerpt

In 1987, Louis Kohus (Kohus) and John Mariol (Mariol) formed Kohus/Mariol, Inc. (KMI).1 Together, they developed consumer products including a portable children's playyard.2 The design of the playyard included a latch with two hinges to lock the playyard's rails in place.3 Kohus and Mariol copyrighted the drawings of the latch because it was a new design and safer than others in the market.4

After a disagreement, Kohus and KMI sued Mariol in an Ohio court.5 The litigation ended six years later in a settlement agreement.6 As part of the agreement, Mariol assigned all of his rights and interests in the playyard, including the design drawings, to Kohus.7 As a result of this agreement, Mariol's rights to the latch were terminated after 1994.8

In 1995, Mariol, while acting as a consultant for Evenflo Juvenile Furniture Co. (Evenflo), faxed a drawing of a latch to Evenflo, which Kohus later claimed was substantially similar to the latch developed at KMI.9 Additionally, the next year, Mariol and a co-engineer developed playyards for Kolcraft Enterprises, Inc. (Kolcraft).10 While filing patent documents for the Kolcraft playyards, Mariol included latch drawings that were, once again, claimed by Kohus as derivative of the KMI latch.11

A few years later, and upon discovery of the patents, Kohus filed a lawsuit against Mariol in the United States District Court for the Southern District of Ohio.12 In the suit, Kohus claimed that the Evenflo and Kolcraft latch drawings were substantially similar to the KMI latch drawing, thus violating his copyright in the drawing.13 Mariol initially filed a summary judgment motion with the court claiming that he did not have access to the KMI latch drawing.14 The district court judge found that Mariol did have access to the drawings and rejected the motion for summary judgment.15 Mariol then filed another motion for summary judgment arguing that his drawings and the KMI latch drawings were not substantially similar.16 Both Kohus and Mariol offered expert testimony regarding the similarity of the drawings, but the judge refused to consider the expert testimony.17 Instead, the trial judge compared the drawings under an ordinary observer test and concluded that they were not substantially similar.18 The trial court then granted the summary judgment motion in Mariol's favor.19

Subsequently, Kohus filed an appeal to the United States Court of Appeals for the Sixth Circuit.20 The Sixth Circuit held, vacated and remanded.21 Because the legal standard for substantial similarity was unsettled in the Sixth Circuit, the court adopted a two-step approach for resolving the issue: (1) identify the aspects of a work that are protectible by copyright, and (2) then determination by the court of the substantial similarity of the protectible elements between the infringing work and the original work. Kohus v. Mariai, 328 F.3d 848 (6th Cir. 2003).

Copyright legislation has existed in the United States for over two hundred years.22 The philosophy behind the granting of a copyright "is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors."23 A grant of copyright encourages personal gain by protecting the creator's work from appropriation by others.24 In this way, the potential financial returns from the work remain with the creator.25 This result benefits the public by encouraging the creation of original works for the world to enjoy.26

Copyright law must also establish a balance between protecting authors on the one hand and limiting that protection to avoid monopolistic stagnation.27 Courts must be cognizant of this symmetry when applying the Federal Copyright Act to new cases.28 Courts generally recognize "that the protection granted to a copyrighted work extends only to the particular expression of the idea and never to the idea itself."29 Distinguishing between idea and expression can be tricky business for the courts. …

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