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A SEIBEI answer

The Law:
You wouldn't have to show that the design was taken directly from SEIBEI. I am going to try not to go TOO deeply into this, but to demonstrate copyright infringement you would have to show evidence of both access and similarity, which are weighed according to a sliding scale. This means that the greater the access Goodie Two Sleeves haf to the shirt (the difference between the president of Goodie Two Sleeves owning the shirt and the shirt just being released on the SEIBEI website) the less evidence you need of substantial similarity.

The Application:
These two shirts are similar, but as others have voiced here, they are not identical or even close to identical. So if similarity is not too great, there would have to be very strong evidence of Access. If it can be shown that a Goodie Two Sleeves designer owns the SEIBEI shirt or has visited the SEIBEI website that would help your case. Short of that, there isn't much of a case here.

Conclusion:
The idea of a dinosaur with a word bubble is embodied in one way in the SEIBEI shirt, in another different way in the Goodie Two Sleeves Shirt, and in other different ways in other shirts I and others have seen elsewhere. Each company can and might have the copyright in their particular chosen embodiment of the idea of a Dinosaur with a word bubble shirt, but no one can have a copyright in the idea. Ideas are not copyrightable.

DISCLAIMER: Neither the reader nor anyone else should consider this comment to be an invitation for any attorney-client relationship and should not rely on the information as legal advice for any purpose. No reader should act or refrain from acting on the basis of information included here without seeking legal advice of counsel in the relevant jurisdiction. Brian expressly disclaims all liability in respect to actions taken or not taken based on any contents here. This comment is not secure or confidential, and does not create an attorney-client relationship.

-Brian
brian.pyne@gmail.com

Full post as published by Overheard in Law School on January 30, 2008 (boomark / email).