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This information is taken directly from the court opinion. It is not taken out of context nor is it altered.

From Folio Impressions, Inc. v. Byer California, 937 F.2d 759 (2d Cir. 1991)

[page 766] Applying these principles to the case at hand, access to Pattern # 1365 has been admitted by defendants. Thus, the issues before us are narrowed in the first step of our analysis to considering whether there is substantial similarity between the works, and whether there was independent origination for the work. We have viewed the fabrics bearing each of the designs at issue in this case and, applying the more discerning "ordinary observer" test, conclude there was no copying. Although the roses in both designs are placed against the background in a similar straight line pattern, the roses themselves are not substantially similar. As the district court correctly pointed out, each of the roses in Pattern # 1365 is identical, while the roses in the Baroque Rose pattern differ from each other in their details and nuances. The Baroque Roses appear to be in soft focus and the Folio Rose has a sharper, clearer image. Moreover, though playwrights and poets from William Shakespeare to Gertrude Stein have extolled the beauty of this five-petaled flower, by the rose's very nature one artist's rendering of it will closely resemble another artist's work. For these reasons, we believe that "an average lay observer would [not] recognize the alleged copy as having been appropriated from the copyrighted work." Novelty Textile Mills v. Joan Fabrics Corp., 558 F.2d 1090, 1093 (2d Cir.1977) (quoting Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir.1966)).