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Copyright Protection Not Available for Earth Flag

Earth Flag Ltd. v. Alamo Flag Co., 154 F. Supp. 2d 663 (S.D.N.Y. 2001)

Defendant’s motion for summary judgment on copyrightability granted. Plaintiff’s cross motion for summary judgment for copyright infringement denied. Plaintiff sold flag called “Earth Flag,” largely in connection with “Earth Day” and environmental movements. Plaintiff’s flag consists of two identical circular photographs of Earth taken from space sewn on each side of dark blue fabric. Plaintiff filed suit for copyright infringement against defendant Alamo Flags, which also sold type of “earth flag,” and online auction seller eBay, which sold Alamo Flag products. Defendants argued plaintiff’s flag lacked any original expression and was therefore not protected, and that Alamo Flag product was not substantially similar to Earth Flag. Court found for defendant, holding no element of plaintiff’s work possessed modicum of creativity necessary to be copyrightable. Court found plaintiff’s work was derivative work, based on public domain photographs. Copyright protection, therefore, would extend only to non-trivial, original contributions to derivative work. Here there were none; plaintiff’s work was merely photograph transferred from paper to fabric medium. Court also found plaintiff’s flag and defendant’s flag not substantially similar. Similarities concerned only non-copyrightable elements of Earth Flag. Any contrary holding, court noted, would give plaintiff monopoly of idea of flag with photograph of Earth.

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