SMS has copyright registrations in photos of its pump dispensers. It claims that a rival, Pharmaaid, is selling identical products and displays SMS’s photos in its Amazon store and on product packaging. Here’s SMS’s purported visual proof of Pharmaaid’s infringements:
(It’s like the meme with Pam from the Office about the differences between two pictures, except in this case they are clearly NOT the same picture).
The court says that SMS’s photos clear the very low copyrightability threshold. However, “any resulting copyright protection would be thin, given the scant creativity involved….any copyright protection that SMS’s images enjoy does not extend to idea of photographing pump dispensers, but instead to the totality of the specific lighting, shading, angles, arrangement, and digital enhancements that went into those images.”
Because the products are allegedly identical, the court says there are only so many ways to depict them. Further, there are:
discernable dissimilarities between the ’086 Copyright and Pharmaaid’s allegedly infringing image: the pump dispensers are angled differently and point in a different direction, and appear to have differences in their shading, coloring, and transparency. A comparison of the ’123 Copyright and Pharmaaid’s image likewise reveals differences in the angling and direction of the pump dispenser nozzles, as well as the size (or extent to which the image is enlarged).
(The similarity in the pump angles makes me think of how watch manufacturers typically show their watch faces at 10 and 2).
The photo variations are enough for the court to conclude that the images are not substantially similar. No preliminary injunction for the plaintiff. This case looks like a good candidate for a 505 fee shift.
I understand that copyright owners deserve protection for their works. However, if you’re suing over industrial photos designed to illustrate the product, I absolutely will question your choices. Seriously, just go compete on the merits.
Case citation: SMS Group Inc. v. Pharmaaid Corp., 1:23-cv-01777-EK-TAM (E.D.N.Y. Oct. 19, 2023)
Selected Prior Blog Posts on Product Shots
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