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`Plaintiff,
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`MEMORANDUM & ORDER
`20-CV-1360 (MKB)
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`MMS TRADING COMPANY PTY LTD., an
`Australian Company d/b/a Connetix Tiles,
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`v.
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`HUTTON TOYS, LLC, a New York limited liability
`company,
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`Defendants.
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`---------------------------------------------------------------
`MARGO K. BRODIE, United States District Judge:
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`Plaintiff MMS Trading Company Pty Ltd. commenced the above-captioned action
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`against Defendant Hutton Toys LLC, among others,1 on March 13, 2020, alleging that Defendant
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`fraudulently filed a copyright infringement complaint against Plaintiff on Amazon.com based on
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`an invalid copyright in magnetic tile toys, resulting in the removal of Plaintiff’s product from
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`Amazon and a loss of sales and goodwill. (Compl. ¶ 1, Docket Entry No. 1.) On March 6, 2023,
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`the Court granted in part and denied in part the parties’ summary judgment motions (“March
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`2023 Decision”). (Mar. 2023 Decision, Docket Entry No. 75.) On April 5, 2023, Plaintiff filed a
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`letter motion for reconsideration styled as a motion for clarification of the Court’s opinion. (Pl.’s
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`Letter Mot. for Clarification (“Pl.’s Mot.”), Docket Entry No. 79.) For the reasons set forth
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`below, the Court denies Plaintiff’s motion.
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`1 The Complaint also named 18th Avenue Toys Ltd. and Yaacov Schwartz as
`defendants, but they are no longer parties to the case. (Stipulation of Dismissal, Docket Entry
`No. 12.)
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`Case 1:20-cv-01360-SJB Document 85 Filed 08/11/23 Page 2 of 8 PageID #: 1733
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`I. Background
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`In the March 2023 Decision, the Court denied Plaintiff’s motion for summary judgment
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`on its copyright invalidity claim. The Court found that Defendant had established a rebuttable
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`presumption that its copyright was valid and original. (Mar. 2023 Decision 8–11.) The Court
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`further found that Plaintiff failed to rebut the presumption because although there was a disputed
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`issue of material fact regarding whether the copyright was “purely” functional, the Court did not
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`find that there was a dispute regarding its originality or that the copyright was invalidated
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`because the subject matter was identical to a prior design patent. (Id. at 11–22.)
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`With respect to Defendant’s cross-motion for summary judgment on Plaintiff’s copyright
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`invalidity claim, the Court found that Defendant presented evidence of a valid copyright and
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`therefore, the burden of overcoming the presumption of validity shifted to Plaintiff to be
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`rebutted. (Id. at 28–31.) The Court found that Plaintiff failed to show that the copyright was
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`invalid because Plaintiff did not show that the Defendant failed to disclose material facts to the
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`copyright office or that Defendant misled the copyright office. (Id.)
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` On April 5, 2023, Plaintiff filed the motion seeking clarification of the Court’s decision
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`denying Plaintiff’s motion for summary judgment on its copyright invalidity claim, granting
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`Defendant’s motion for summary judgment on the same claim and allowing the copyright
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`infringement and noninfringement claims to proceed to trial. (Pl.’s Mot.) Specifically, Plaintiff
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`argues that because the Court found that a factual dispute regarding the functionality of
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`Defendant’s allegedly infringing work precluded summary judgment in favor of Plaintiff on the
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`copyright invalidity claim, then the Court should have also denied summary judgment to
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`Defendant on the same claim and for the same reason. (Id.)
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`2
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`Case 1:20-cv-01360-SJB Document 85 Filed 08/11/23 Page 3 of 8 PageID #: 1734
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`In opposing Plaintiff’s application, Defendant argues that (1) the letter motion is untimely
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`under Local Rule 6.3 and Rule 59 of the Federal Rules of Civil Procedure; (2) Rule 60(a) is
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`inapplicable because the ruling does not contain any “clerical errors;” and (3) Rule 60(b) is
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`inapplicable because the ruling was not a final judgment and because Plaintiff cannot otherwise
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`show that Rule 60(b) applies. (Def.’s Reply in Opp’n to Pl.’s Mot. (“Def.’s Opp’n”) 1–3, Docket
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`Entry No. 80.) In addition, Defendant argues that the Court did not err in its analysis. (Id.)
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`II. Discussion
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`The Court denies Plaintiff’s motion as untimely under the Federal Rules of Civil
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`Procedure and the Local Rules. In addition, the Court denies Plaintiff’s motion on the merits.
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`a. Plaintiff’s motion is procedurally untimely
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`Plaintiff does not cite any Federal Rule of Civil Procedure as a basis for its letter but
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`simply calls it a motion for clarification. Defendant argues that Plaintiff’s motion is untimely
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`because: (1) “[a] motion for relief under Rule 59(e) must be brought within 28-days of the entry
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`of the judgment being challenged,” and (2) “under Local Rule 6.3, . . . notice of motion for
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`reconsideration or reargument of a court order determining a motion shall be served within
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`fourteen days after the entry of the court’s order resulting in judgment.” (Id. at 2.) Defendant
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`notes that Plaintiff’s letter motion was filed after the deadlines passed and therefore is untimely.
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`(Id.) In addition, Defendant argues that Rule 60(a) is inapplicable because the Court’s March
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`2023 Decision does not contain any clerical errors and reflects the Court’s intent. (Id.)
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`First, Plaintiff’s letter is untimely under Rule 59 and Local Rule 6.3. Under Rule 59(e),
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`“[a] motion to alter or amend a judgment must be filed no later than [twenty-eight] days after the
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`entry of the judgment.” Fed. R. Civ. P. 59(e). Under Local Rule 6.3, a notice of motion for
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`reconsideration must be filed within fourteen days after the entry of the order. Plaintiff filed the
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`3
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`Case 1:20-cv-01360-SJB Document 85 Filed 08/11/23 Page 4 of 8 PageID #: 1735
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`letter on April 5, 2023, thirty days after the Court’s March 6, 2023 ruling. Therefore, Plaintiff’s
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`letter motion was untimely under both Rule 59(e) and Local Rule 6.3. See, e.g., Siino v. City of
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`New York, No. 14-CV-7217, 2021 WL 6063610, at *3 (E.D.N.Y. Dec. 21, 2021) (denying as
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`untimely pro se plaintiff’s motion to reconsider which was filed twenty-six days after the order
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`was entered); Bennett v. Care Corr. Sol. Med. Contracted, No. 15-CV-3746, 2017 WL 4250519,
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`at *2 (S.D.N.Y. Sept. 25, 2017) (denying as untimely plaintiff’s seven-day-late motion for
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`reconsideration and collecting cases).
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`Second, Rule 60(a) does not apply. Rule 60(a) states, “[t]he court may correct a clerical
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`mistake or a mistake arising from oversight or omission whenever one is found in a judgment,
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`order, or other part of the record.” Fed. R. Civ. P. 60(a); Wang v. Int’l Bus. Machs. Corp., 839 F.
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`App’x 643, 645 (2d Cir. 2021) (same). “Rule 60(a) ‘is not meant to provide a way for parties to
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`. . . charge errors in what a court has deliberately done.’” PDV Sweeny, Inc. v. ConocoPhillips
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`Co., No. 14-CV-5183, 2015 WL 9413880, at *2 (S.D.N.Y. Dec. 21, 2015), aff’d, 670 F. App’x
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`23 (2d Cir. 2016) (quoting Emp’rs Mut. Cas. Co. v. Key Pharm., Inc., 886 F. Supp. 360, 363
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`(S.D.N.Y. 1995)); see also 11 Charles Alan Wright et al., Federal Practice and Procedure §
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`2854 (3d ed. 2012) (“Errors of a more substantial nature are to be corrected by a motion under
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`Rules 59(e) or 60(b).”). Plaintiff does not allege any clerical error because there are none. As
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`Defendant argues, the Court found that Plaintiff failed to establish the invalidity of the ‘106
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`Copyright because Defendant established a rebuttable presumption of the validity of the
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`copyright; and Plaintiff failed to rebut that presumption.
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`Third, Rule 60(b) does not apply. Pursuant to Rule 60(b),
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`[o]n motion and just terms, the court may relieve a party or its legal
`representative from a final judgment, order, or proceeding for the
`following reasons: (1) mistake, inadvertence, surprise, or excusable
`neglect; (2) newly discovered evidence that, with reasonable
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`4
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`Case 1:20-cv-01360-SJB Document 85 Filed 08/11/23 Page 5 of 8 PageID #: 1736
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`diligence, could not have been discovered in time to move for a new
`trial under Rule 59(b); (3) fraud (whether previously called intrinsic
`or extrinsic), misrepresentation, or misconduct by an opposing
`party; (4) the judgment is void; (5) the judgment has been satisfied,
`released, or discharged; it is based on an earlier judgment that has
`been reversed or vacated; or applying it prospectively is no longer
`equitable; or (6) any other reason that justifies relief.
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`Fed. R. Civ. P. 60(b). Rule 60(b) only applies to final judgments. See Transaero, Inc. v. La
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`Fuerza Aerea Boliviana, 99 F.3d 538, 541 (2d Cir.1996) (“By its own terms, Rule 60(b) applies
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`only to judgments that are final.”). An order denying in part and granting in part the parties’
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`motions for summary judgment is not final. See United States v. 228 Acres of Land, 916 F.2d
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`808, 811 (2d Cir. 1990) (“An order that denies summary judgment or grants partial summary
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`judgment cannot by itself be the basis for an appeal, since it is nonfinal.”); Williams v. Cnty. of
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`Nassau, 779 F. Supp. 2d 276, 280 n.2 (E.D.N.Y. 2011), aff’d, 581 F. App’x 56 (2d Cir. 2014)
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`(same). In addition, none of the Rule 60(b) grounds apply. Plaintiff does not argue that there is
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`newly discovered evidence, fraud, or new law requiring reconsideration of the Court’s decision.
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`Therefore, Plaintiff’s motion is untimely under the Federal Rules of Civil Procedure and
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`the Local Rules, and Rule 60(b) does not apply to Plaintiff’s motion.
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`b. Plaintiff’s motion also fails on the merits
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`Plaintiff argues that the March 2023 Decision is inconsistent as it relates to the parties’
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`motions for summary judgment on Plaintiff’s copyright infringement claim. In support, Plaintiff
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`argues that because the Court found that “there is a genuine issue of material fact concerning the
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`functional element portion of Plaintiff’s motion for summary judgment,” with regard to
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`Plaintiff’s copyright invalidity claim, then that means “this issue also exists concerning
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`Defendant’s motion for summary judgment on Plaintiff’s copyright invalidation claim.” (Pl.’s
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`Mot. 3.) Plaintiff argues that “it is also possible that a reasonable juror could identify the product
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`as not containing [artistic] qualities” such that its copyright invalidation claim should be allowed
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`5
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`Case 1:20-cv-01360-SJB Document 85 Filed 08/11/23 Page 6 of 8 PageID #: 1737
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`to proceed. (Id. at 2–3.)
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`Defendant argues that Plaintiff “fails to show that the [March 2023 Decision] did not
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`accurately reflect the Court’s intent or that it is inconsistent or otherwise confusing.” (Def.’s
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`Opp’n 3.) In support, Defendant argues that the Court found that Plaintiff failed to establish the
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`invalidity of the ‘106 Copyright because Defendant had established a rebuttable presumption of
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`the validity of the copyright and Plaintiff failed to rebut that presumption. (Id.) Further, “[w]hen
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`the Court turned its attention to [Defendant’s motion for summary judgment], it found that
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`[Defendant] had established it owned a valid copyright and that Plaintiff had failed to come
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`forward with sufficient facts to rebut the validity of the copyright.” (Id.)
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`In the March 2023 Decision, the Court considered whether the Defendant’s work was
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`purely functional with respect to Plaintiff’s motion for summary judgment on Plaintiff’s
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`copyright invalidity claim. (Mar. 2023 Decision 11–14.) Plaintiff argued in its motion for
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`summary judgment that when the functional elements of Defendant’s work are “discounted, no
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`independent original work of authorship with even a minimal degree of creativity exists” because
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`all that remains are “simple geometric shapes” which are not protectible. (Pl.’s Mem. in Supp. of
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`Mot. for Summ. J. (“Pl.’s Mem.”) 12, 14, Docket Entry No. 70.) As the Court found in the
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`March 2023 Decision, this is incorrect. The Court found that even though the functional
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`elements of the product were disputed, that did not mean that the copyright was unoriginal. The
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`Court concluded this on the basis that (a) there was insufficient evidence in the record
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`demonstrating that similar sculptural works existed in the public domain at the time the ‘106
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`Copyright was registered or when the Shape Mags product first debuted in the market; (b) even if
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`there was evidence of similarly existing works, the ‘106 Copyright could still be original so long
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`as it was not copied, see Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340,
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`6
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`Case 1:20-cv-01360-SJB Document 85 Filed 08/11/23 Page 7 of 8 PageID #: 1738
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`345 (1991) (“Originality does not signify novelty; a work may be original even though it closely
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`resembles other works so long as the similarity is fortuitous, not the result of copying.”); (c) the
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`requisite level of creativity required to demonstrate originality is minimal, see Acuff-Rose Music,
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`Inc. v. Jostens, Inc., 155 F.3d 140, 143 (2d Cir. 1998) (“Original, as the term is used in
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`copyright, means only that the work was independently created by the author (as opposed to
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`copied from other works), and that it possesses at least some minimal degree of creativity.”); and
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`(d) Plaintiff’s argument that Defendant’s prior existing design patent invalidated the ‘106
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`Copyright was legally wrong, see Mechanical Plastics Corp. v. Titan Technologies, Inc., 823 F.
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`Supp. 1137, 1142 (S.D.N.Y. 1993) (“A product’s different aspects can be protected
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`simultaneously by more than one of the statutory means for the protection of intellectual
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`property.”).
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`Plaintiff was required to rebut the presumption of originality and validity by showing
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`both that the Defendant’s product was not original and contained only functional elements. Even
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`though the Court found there was a genuine issue of material fact regarding which elements were
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`functional, Plaintiff failed to rebut the presumption of originality. Therefore, Defendant’s
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`product was presumptively valid and Plaintiff’s motion for summary judgment on its own
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`copyright invalidity claim failed. Defendant’s motion for summary judgment on Plaintiff’s
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`copyright invalidity claim succeeded for the same reason — that Defendant’s product was
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`presumptively valid because it was original and therefore the copyright was valid. C.f. Fonar
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`Corp. v. Domenick, 105 F.3d 99, 104 (2d Cir. 1997) (noting the presumption of validity may be
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`rebutted by evidence that clearly demonstrates that plaintiff’s design lacks originality).
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`Accordingly, Plaintiff’s argument that the Court should have denied Defendant’s motion
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`for summary judgment on the copyright invalidity claim is without merit because Plaintiff had to
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`7
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`Case 1:20-cv-01360-SJB Document 85 Filed 08/11/23 Page 8 of 8 PageID #: 1739
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`show more than just a material dispute regarding functionality in order to rebut the presumption
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`of validity — it had to actually show unoriginality, which it did not for the reasons stated above.
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`III. Conclusion
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`For the foregoing reasons, the Court denies Plaintiff’s motion.
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`Dated: August 11, 2023
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`Brooklyn, New York
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`SO ORDERED:
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` /s/ MKB
`MARGO K. BRODIE
`United States District Judge
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`8
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