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Not-So-Heavenly Hosts

Gregerman angel - free with purchaseHow many angels can dance on the head of a pin?  Absent an answer from the medieval scholastics, one might ask the U.S. Court of Appeals for the First Circuit.

In Mag Jewelry Co., Inc. v. Cherokee, Inc., the court was called upon to decide a dispute involving ownership of an angel -- or rather, an angel jewelry design consisting of four stones and a ring.  (Isn't the human capacity for pattern recognition wonderful?) 

There's no question that defendant Target, the exclusive U.S. licensee of the Cherokee brand, and Target's supplier, Style Accessories, based their pendant design on someone else's angel.  The problem for plaintiff Mag Jewelry, however, was that Target's template wasn't Mag's copyrighted angel but the apparently identical design of a third party, Alan Gregerman -- a former supplier to Style Accessories. 

In other words, Gregerman theoretically had a case against Target and Style, but Mag Jewelry didn't, even though the Gregerman angel design (above left) and the Mag Jewelry angel design (below) appear to be exactly the same.   Why?  Because Gregerman claims to have created the design on his own, and true independent creation of even an identical work is not a copyright infringement; indeed, such independent creation will support a separate copyright.  Since Target's supplier had admittedly purchased Gregerman's design, it had no need to look to Mag's version when it decided to make copies. 

Why, then, didn't Mag Jewelry challenge Gregerman's unregistered design?  As it turns out, Mag Jewelry had done just that -- shortly after receiving its copyright registration in November 1995.  Gregerman responded that he'd actually been the first to create and market the angel design.  Mag and Gregerman ultimately reached an agreement under which both would continue producing the design "as copyrighted by Mag Jewelry Co."  In its litigation against Target, Mag attempted to characterize this agreement as a license to Gregerman, which Gregerman denied.  Mag also argued that the angels Gregerman sold to Style Accessories in 1997 and 1998 were of the Mag design rather than the Gregerman design, even though there's no apparent difference -- a claim that both the district court and the court of appeals seemed to find nonsensical. 

At the end of the day, the 1st Circuit affirmed the trial court's grant of judgment as a matter of law for the defendants and went a step further, reversing the trial court's decision not to award attorney fees.  So much for Mag Jewelry's guardian angels. 

Mag Jewelry angels $4.99

Counterfeit Chic is left to wonder, though, why Mag and Gregerman, as owners of identical designs, didn't just join forces against Target et al.  What kind of deal (if any) might the directly copied Gregerman have struck with Target?  And might a darker angel have been involved somewhere?

P.S.  The angel design at issue is not currently available on Target's website -- but perhaps this one represents its evolution?

Target angel $19.99