## Facts

- Wanda and Christopher Cavalier created children’s materials featuring “Nicky Moonbeam,” an anthropomorphic moon character, along with related stories and illustrations.
- Between 1995 and 1998, the Cavaliers submitted extensive creative materials to Random House and Children’s Television Workshop (CTW), including stories, artwork, and a board-book concept incorporating a moon-shaped night light into the book cover.
- Random House and CTW rejected the submissions and later released children’s works tied to “Sesame Street,” including *Good Night, Ernie* and *Good Night, Elmo*, and an animated segment for “The Adventures of Bert and Ernie.”
- The Cavaliers alleged defendants copied protectable expression from their submissions, emphasizing (i) a moon-themed night-light book cover and (ii) an illustration depicting stars resting on clouds.
- The Cavaliers sued for copyright infringement and asserted Lanham Act and related state-law claims (trademark infringement, false designation of origin, and unfair competition).
- The district court granted summary judgment to defendants on copyright (finding no substantial similarity as a matter of law) and dismissed the Lanham Act and related claims.
- The Cavaliers appealed.

## Issues

1. Whether defendants’ works were substantially similar to protectable elements of the Cavaliers’ works under the Ninth Circuit’s extrinsic and intrinsic tests, including the moon night-light cover and the stars-on-clouds illustration.
2. Whether summary judgment was proper on the copyright claims as to the works as a whole and as to specific disputed visual elements.
3. Whether dismissal of the Lanham Act, trademark, and unfair competition claims was proper, including whether plaintiffs showed protectable trademark rights, use in commerce, and likelihood of confusion.

## Decision

- The Ninth Circuit reversed in part the copyright summary judgment, holding triable issues existed as to substantial similarity for (i) the moon night-light cover design and (ii) the stars-relaxing-on-clouds illustration.
- The court otherwise affirmed summary judgment on copyright, concluding the works as a whole were not substantially similar in protectable expression after filtering out unprotectable ideas and common elements.
- The court affirmed dismissal of the Lanham Act, trademark, and unfair competition claims for lack of sufficient trademark rights and evidence supporting source confusion, and because the claims largely duplicated copyright theories.

## Legal Principles

- Copyright substantial similarity in the Ninth Circuit applies a two-part framework:
  - the extrinsic test (objective comparison of specific expressive elements using analytic dissection), and
  - the intrinsic test (subjective comparison of total concept and feel from the standpoint of an ordinary reasonable observer).
- Courts must filter out unprotectable material—ideas, generic themes, scenes à faire, and common motifs—before comparing protectable expression.
- Even if overall works are not substantially similar, discrete visual elements may present triable issues if their particular configuration and design choices constitute protectable expression.
- Summary judgment is inappropriate where a reasonable juror could find substantial similarity in protectable expression under the extrinsic/intrinsic analysis.
- Lanham Act and related unfair competition claims require evidence of protectable source-identifying rights and a likelihood of consumer confusion; claims that merely restate alleged copying of expressive content do not establish trademark liability.

## Conclusion

The Ninth Circuit preserved only a limited copyright claim for trial—focused on a moon night-light cover and a specific stars-on-clouds illustration—while affirming judgment against plaintiffs on all other alleged similarities and on the Lanham Act and related state-law claims.


Cavalier v. Random House, Inc., 297 F.3d 815 (9th Cir. 2002)