Kim Seng Co. v. J & A Imps., Inc.

In order for a plaintiff to prevail on a copyright infringement claim, the item in question must be creative or original enough to qualify for copyright protection.

For full opinion:
2011 U.S.Dist.LEXIS 97983
2011 WL 3861416

Opinion (SNYDER): Kim Seng Co. (“Seng”) and J&A Imps., Inc. (“J&A”) were competing Chinese and Vietnamese food supply companies. Seng claimed a copyright in a photograph of a bowl of food that was used as a label on the store’s rice stick food packages. Both parties used a yellow bag with red trim that depicted a photo of a bowl filled with rice sticks topped with food. Seng used this type of packaging since 2002 and J&A used it since 2009. J&A argued the validity of Seng’s copyright and argued that it was not creative or original enough to qualify for copyright protection. The bowl of food could qualify as a sculptural work and be copyrightable if it was a “work of original authorship fixed in a tangible medium of expression, demonstrates sufficient creativity, and contains artistic aspects” that were separate from its utilitarian function. “The food items cannot be separated from their utilitarian function, it is still just food.” Additionally because the bowl of food failed the originality requirement , Seng did not have a copyright. Finally, Send failed to show ownership of the photo, however even if ownership could be shown it was irrelevant because the underlying work must be copyrightable and the bowl of food was not. A combination of “unprotectable elements is eligible for copyright only if those elements are numerous enough and their selection and arrangement original enough “ to constitute an original work. The photo depicted a common Vietnamese dish and thus could not constitute an original work. Summary judgment GRANTED to J&A.