An artist’s copyright infringement suit alleging that a Starbucks Frappuccino advertising campaign infringed her copyrights has been dismissed, on the ground that the campaign didn’t appropriate the “total concept and feel” of the artist’s works.
Maya Hayuk is a well-known street artist whose works have appeared in several museums. She has also licensed her works to corporations, including Microsoft, Sony, and General Motors, for use in advertisements. In 2014, Starbucks’ advertising agency, 72andSunny, contacted her about possibly creating art for a Starbucks advertising campaign. She ultimately declined the company’s offer.
In her copyright complaint, Hayuk alleged that Starbucks later used infringing works on its websites, in print and videos, and on its product packaging and in-store displays. Among other things, she pointed to her multicolor work, “Kites #1,” and Starbucks’ Frappuccino advertising campaign, which used a similar graphic of multicolor strips.
Starbucks responded with a motion to dismiss, alleging as an initial matter that Hayuk’s “style” (bright colors; intersecting lines; use of geometric shapes) is not protectable under copyright law. Starbucks asserted the real issue was whether the “total look and feel” of the two works were substantially similar, when only the protectable elements were considered. It claimed that a simple visual comparison of Hayuk’s works and Starbucks’ advertisements would show that they were substantially different.
Hayuk contended that her colorful murals were “fine art” works that were protected in their entirety. She argued that the two pieces should be judged based on a relaxed “ordinary observer” test for substantial similarity.
The court concluded that Hayuk’s works included so many unprotectable geometric shapes, colors, and textures, that the case required the “discerning” ordinary observer test requested by Starbucks, in which the unprotectable elements were identified and extracted before the substantial similarity analysis was conducted.
After applying the “discerning” ordinary observer test, U.S. District Judge Laura Taylor Swain of the Southern District of New York held that none of the Frappuccino advertisements were substantially similar to ‘the total concept and feel’ of the protectable elements of any of Hayuk’s art works. She found “dominant dissimilarities in the specific aesthetic choices” made, which distinguished the ad campaign from the prior Hayuk works.
Mike Nepple is a partner in Thompson Coburn’s intellectual property group. He can be reached at (314) 552-6149 or email@example.com. Justin Mulligan is an associate in Thompson Coburn’s Intellectual Property group. He can be reached at (314) 552-6227 or firstname.lastname@example.org.