Can a Wood Grain be Copyrighted? Yes, if the Pattern is Original and Human Made

Womble Bond Dickinson

Womble Bond Dickinson

Toppan Interamerica, a commercial printer in Henry County, Georgia recently filed two lawsuits alleging that California-based Whalen Furniture is infringing Toppan’s copyrights for decorative wood grain paper for furniture. The asserted original patterns are shown below:

Fitzroy Pine Roughsawn Oak Aspen Oak

Fitzroy Pine

Roughsawn Oak

Aspen Oak

Mansalu Oak Bianco Oak Charcoal Oak

Mansalu Oak

Bianco Oak

Charcoal Oak

Toppan alleges that Whalen’s products directly copy the Fitzroy Pine and Bianco Oak copyrighted patterns, and that Whalen scanned the other patterns and made slight changes.

Under U.S. copyright law, original patterns are copyrightable. United States copyright law protects "original works of authorship" fixed in a tangible medium, including two-dimensional art such as original faux wood grains. Copyright owners have the exclusive right to make and sell copies of their works. These exclusive rights expire 70 years after the author's death or 95 years after publication. The protection in a new faux wood grain has been called “thin” copyright protection, since no protection extends to natural wood grains or to other faux patterns not copied from the copyrighted pattern.

Toppan chose to file complaints in the Southern District of California and at the U.S. International Trade Commission (“ITC”). These forums have different requirements and offer different remedies. District courts can hear copyright infringement cases and issue injunctions and award monetary damages. The ITC institutes upon request or on its own investigations about allegations of imported goods that violate intellectual property rights. When requested by an injured party, the party must prove that they are making significant investments in the intellectual property in the United States. This so-called “domestic industry” requirement looks at the industry and realities of the marketplace to evaluate the investments.

Despite these additional requirements, the ITC is a popular venue for a few reasons. First, it is fast. Decisions from the Commission normally come within 16-18 months. Second, it provides a powerful remedy for owners of intellectual property—exclusion of the infringing goods from the United States, which is enforced by U.S. Customs and Border Protection.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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