Emily v. Rosamond: the copyright battle continues

August 18, 2009 in: Art, Literature|View Comments

emilyv.rosemondWhat started as a preemptive suit has blossomed into a full-fledged Copyright infringement case. On May 18, 2009 Cosmic Debris, Etc. Inc, filed a suit in a California Northern District Court seeking a declaratory judgment that Emily the Strange lacks originality and is a “unique variation on a concept.”

Less than a month later, “Nate the Great” creator Marjorie Weinman Sharmat and illustrator Marc Simont are seeking a permanent injunction and damages because of similarities between Emily the Strange and the “Nate the Great” character Rosamond.

From the complaint:

As is evident from a direct comparison of these works, the last two sentences have been copied verbatim, and the first sentence is almost identical. Taken together with the substantial similarity of the illustrations, the conclusion that the Rosamond character and text have been infringed is inescapable.

Rosemond first appeared in the 1970′s as part of Sharmat’s children’s book series. Emily, who first appeared in the early 1990′s in promotional material for the Cosmic Debris clothing line, grew to fame in a series of comics, novels, and clothing since 2001.

More on the lawsuit here. Read the complaint here.

UPDATE: On August 12, 2009, Cosmic Debris Etc. Inc. and Marjorie Sharmat and Marc Simont announced a settlement resolving all disputes between them and agreed to relinquish all legal claims. Read the announcement from the Emily Strange blog.

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  • Andrew
    There are so many similarities between the two - even the text is almost identical. Yet, there are big differences, as well. For example, the number of cats, Emily's posture and stance, Emily's hair, one cat's tail is around her leg, the yellow "brick road", to name a few. What constitutes a lawsuit if there are "major" differences, and, if the character "emily" is a different character all together and used for a separate product?
  • Andrew:

    You will notice the Plaintiff's complaint states, "Defendants have had actual and constructive access to Plaintiffs' copyrighted works, and have themselves generated works that are substantially similar, if not identical to, Plaintiffs' copyrighted works...Defendants have copied, and continue to copy, in whole or in substantial part, copyrighted elements of the works..."

    In the Ninth Circuit (where cases from the District of Arizona are appealed) a plaintiff must establish ownership and unauthorized copying of protected expression. Proof of copying requires evidence that the alleged infringer had access to the protected work before creating the accused work and that a substantial similarity of expression exists between the protected and accused works. Here access is proven by the wide dissemination of the Plaintiff's work.

    The substantial similarity component, however, follows “a two-part test having ‘extrinsic’ and ‘intrinsic’ components...[T]he extrinsic [component]...objectively considers whether there are substantial similarities in both ideas and expression ...” Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir. 1994). The extrinsic component requires “analytic
    dissection” and compares “the individual features of the works to find specific similarities between the plot, theme, dialogue, mood, setting, pace, characters, and sequence of events.” The intrinsic component measures “expression subjectively.”

    If the complaint cited the single copyrighted work (the images as compared in the post), I think there is a clear argument for access and substantial similarity. This reminds me generally of Steinberg v. Columbia Pictures Industries, Inc., 663 F. Supp. 706 (S.D.N.Y. 1987) where the illustrator of numerous New Yorker covers won a copyright infringement suit against Columbia Pictures for the substantial similarity between the Moscow on the Hudson movie poster and a magazine cover.
    <img src="http://www.artflaw.com/wp-cont..." align="middle">
    However, looking at the breadth of Copyright claims in the complaint, you have to wonder about the idea/expression dichotomy and to what extent generalities found between the Emily the Strange and Rosamond characters may be disregarded by the court. Copyright is only extended to actual expression. Thus, the general "idea" of a strange young girl with "a short dress, dark hair with long square-cut bangs, "mary jane" shoes, "posse" of four black cats, persistent strangeness, and fascination with dark themes," may not altogether be protectable.
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