## Facts

- In 1993, James Tufenkian designed the “Floral Heriz” rug and obtained a copyright registration in 1995.
- The design was created by digitally combining and modifying elements from two public-domain carpets: a Persian antique (“Battilossi”) and an Indian Agra (“Blau”).
- Tufenkian selected motifs from the Battilossi field, altered proportions (including stretching the field), and used the modified field as the Heriz field.
- Tufenkian used the Blau “primary border,” combined it with the modified field, and made expressive choices concerning selection, omission, and arrangement of motifs.
- In 1995, a former Tufenkian employee joined competitor Bashian Brothers, Inc. and designed “Bromley 514,” which also drew from the same two public-domain carpets and used a similar overall layout.
- The district court found Floral Heriz sufficiently original to be protected and found actual copying, but granted defendants summary judgment because it concluded Bromley 514 was not substantially similar to the protectable expression after filtering out public-domain elements.

## Issues

1. Whether a derivative work composed from public-domain source material receives copyright protection for its original selection, modification, coordination, and arrangement of those elements.
2. How substantial similarity should be assessed when both parties use the same public-domain sources, including the proper use of “total concept and feel” after excluding unprotectable elements.
3. Whether defendants’ additions of new elements can defeat infringement when substantial portions of plaintiff’s protectable arrangement are copied.

## Decision

- The Second Circuit vacated the grant of summary judgment for defendants and remanded.
- The court agreed that public-domain elements are unprotectable, but held that the district court erred in concluding, as a matter of law, that Bromley 514 was not substantially similar to Floral Heriz’s protectable expression.
- The record permitted a finding that defendants copied Tufenkian’s protectable expressive choices in selecting, modifying, and arranging the public-domain elements.
- The court held that adding new elements to the accused work does not negate infringement where the copied portions remain substantially similar to protected expression.
- At minimum, substantial similarity presented a triable issue that could not be resolved against the plaintiff on summary judgment.

## Legal Principles

- Public-domain material may be freely used, but original selection, coordination, and arrangement of public-domain elements may be protected.
- In infringement analysis of works incorporating unprotectable material, the comparison must focus on similarity to the plaintiff’s original expression, not similarity attributable only to shared source material.
- “Filtering” unprotectable elements does not permit courts to ignore protectable expressive choices embodied in how unprotectable elements are combined and modified.
- An accused work may infringe by copying protectable portions even if it also includes additional original material.

## Conclusion

The Second Circuit held that the plaintiff’s rug design could be protected for its original combination and modification of public-domain elements and that, on this record, defendants were not entitled to summary judgment on substantial similarity because the accused design could be found to copy the plaintiff’s protectable arrangement.


Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127 (2d Cir. 2003)